Op-Ed: Accused Must Have Access to Police Disciplinary Records

Jennifer Sellitti | July 20, 2020 | Opinion
Criminal defendants should be able to see whether an arresting officer has a history that undercuts his or her credibility
Jennifer Sellitti

“I think most of this list is going to be pretty damn boring.” That was how State Police Benevolent Association President Pat Colligan responded to reporters when asked why the union was fighting so hard to protect the secrecy of internal affairs, or IA, records. The statement itself is a paradox. If the records are so boring, then why all the fuss?

The truth is that internal affairs records are not boring; they are useful. Their uses range from rooting out bad police officers before they become the next Derek Chauvin, who is facing murder and other charges in the death of George Floyd in Minneapolis, to helping those who make policy decide where to allocate resources for training and reform.

The records are also useful to the accused, whose future may hinge on whether a judge or jury finds an officer believable in court.

There has been much discussion lately about public access to internal affairs records but little about what release of such records means to criminal defendants. Many assume there is a special right of access to IA records when a person has been accused of a crime. It seems only fair the accused know about misconduct committed by the officers who arrested him and will testify against him in court.

Sadly, this is not the case. In New Jersey, criminal defendants are in the dark when it comes to learning about prior misconduct of the officers who stand between them and prison.

The rules heavily favor police

There is a reason the union is fighting so hard to preserve the status quo: The current rules heavily favor police. There is a presumption of non-disclosure in criminal cases that can only be overridden when the public interest outweighs officer privacy.

A defendant’s liberty interest may be compelling, but here’s the catch: The rules require the defense attorney to know about the misconduct before she can meet the legal standard for access to IA records. New Jersey has never released the names of officers who engage in misconduct, which makes it next to impossible to make a showing for them in court.

Recently, Attorney General Gurbir Grewal announced some officers’ names would now be made public. The new policy requires, going forward, departments to disclose misconduct that resulted in suspensions of five days or more.

This step continues to shield from public view cases where a complaint against an officer is sustained but the officer receives a lesser punishment, cases in which an officer retires to escape discipline, and cases in which shoddy internal affairs investigations result in dismissed complaints. But it is a step that provides a small sliver of transparency.

Following the announcement, the State Police, the Paterson Police Department, and others took the bold step of agreeing to release 20 years’ worth of records. Rather than embrace transparency, the union went ballistic and sued to stop the release. In an open letter to the public, the union cited two main objections and claimed the policy is an unnecessary attempt to “unmask” officers for minor infractions, and it is designed to embarrass officers who committed misconduct years ago. Both claims are invalid.

Major misconduct

A suspension of more than five days encompasses major misconduct. President Colligan frequently refers to discipline as largely administrative and cites as examples uniform violations, mishandling ammunition, and getting into accidents with a police car as the type of conduct for which discipline is meted out.

A review of the most recent NJ State Police Office of Professional Standards Report — in which misconduct that led to a suspension of more than 30 days by “anonymous” troopers is reported — tells a different story. In 2017, the last year available, the State Police disciplined officers for: falsifying motor-vehicle stop records and police reports, illegally searching property, failing to report misconduct of a fellow officer, displaying improper attitude and demeanor in a motor-vehicle stop, providing false information during an IA investigation, and more. Not one of the troopers was fired.

Let’s be clear about what this means. Troopers disciplined for lying, falsifying records, and conducting illegal searches are still making arrests and testifying in court without a judge or jury ever knowing. There are people sitting in jail right now facing significant prison terms who do not and cannot know if the trooper who arrested them committed such misconduct.

Even the union’s assertion that some conduct is too minor to be revealed is misplaced. The defense should know if the officer who recovered a gun in a case has been careless with weapons in the past. Knowing an officer has cracked up her own police car on several occasions may be important in a case in which she charges someone for damaging police property. Context matters.

History matters too. It takes criminal cases years to get to trial and even longer for post-conviction motions to wind their way through appellate courts. Although it is important to have misconduct data going forward, the knowledge is cold comfort to a person fighting charges lodged against him by an officer years ago.

State Sen. Loretta Weinberg recently introduced S-2656, a bill that would make IA records public. The core of the issue involved is the right of access. Who gets to decide? Should it be the police, who investigate their own and shroud decisions in secrecy, or the public?

S-2656 is the answer: Police data belongs to the public and, especially, to those whose lives may depend on it.