STOP THE PRESSES! LET”S WAIT FOR THE EVIDENCE

DA Oversteps Boundaries in Announcing Arrest of 106 NY Police Officers and Firefighters

Certainly, a hot button issue in New York City has been, and will remain, any news connected to the 9/11 attacks. News that might relate to the first-responders involved in 9/11 and its aftermath, particularly allegations that implicate police or fire-fighters as exploiting or profiting from the 9/11 tragedy are exactly the kind of story that pushes its way onto the front page of the paper or lead story on a cable-news show. It is no surprise, therefore, that after District Attorney Cyrus Vance issued a press release on January 7, 2014, indicating that 80 of 106 defendants indicted in an alleged Social Security fraud scheme, were retired New York Police and Firefighters fraudulently claiming disability due to injuries suffered on 9/11, that the headline in the New York Post read “9/11 SCAM SCUM.”

While the press is perpetually eager to report a seemingly “juicy” story, what is both surprising and disturbing is the manner in which this has been handled by the New York County District Attorney's Office. It is nothing new that a prosecutor's office conducts an investigation, gathers confidential sources and informants, sets up sting operations and ultimately indicts multiple defendants on significant and serious charges. It is also not unusual for a prosecutor's office to issue press releases informing the public of its efforts. What is unusual in this case, however, was the specific information contained in the press release and the manner in which the information was framed. In many ways, the press release seemed designed to create news that would incite the press and create exactly the sort of media frenzy that has resulted.

It cannot be overlooked that New York City is literally days into a new administration with a new mayor and new police chief. It cannot be a coincidence that Police Chief Bratton is quoted in just the third paragraph of the press release and made statements in both the Daily News and New York Post. I would even hazard a guess that the timing of these arrests purposely occurred to parallel the incoming administration. Furthermore, despite the fact that almost 20 percent of the alleged defendants are classified as “other” than police-officers or fire-fighters, and that “among the indicted applicants, [Social Security Disability Insurance] awards have been paid since as far back as 1988,” years before 9/11, the tenor of the press release, statements made by the District Attorney and Police Chief, and the resultant media coverage is particularly geared to a sensationalized slant regarding these defendants. For example Chief Bratton vilified the defendants as having “disgraced all first responders who perished during the search and rescue efforts on September 11, 2001, and those who subsequently died from 9/11 related illness, by exploiting their involvements that tragic day for personal gain.”

Perhaps the most egregious and outrageous choice that the District Attorney made was to list publically the names, addresses and dates of birth of all the defendants. It was expected that this windfall of information would lead to journalists finding and publishing pictures of some of these defendants playing golf, fishing or jet skiing. While these pictures can inflame the passions of the public, and potentially taint a jury-pool, in and of themselves, photographs do no “win” the case for the District Attorney. One thing is clear, it is not mutually exclusive to be physically or mentally disabled and still be able to have a modicum of enjoyment in life – and have a picture taken of that enjoyment to boot. In fact, buried in the press release, the District Attorney concedes that “many of the NYPD and FDNY applicants had limited physical disabilities that legitimately entitled them to state disability pensions.”

Inflammatory pictures, press conferences and sound bites are good, but what ultimately matters in our justice system is proof. What the prosecution must prove in a grand larceny case is that a defendant 1) “with intent to deprive another of property or to appropriate the same to himself or to a third person, he 2) wrongfully takes, obtains or withholds such property from an owner thereof.” Here the value of what was allegedly wrongfully obtained span a wide range – in some cases several thousands of dollars. Sometimes a picture can say 1,000 words and be helpful in proving a case. Other times a picture is just a picture that captures an image of one individual for one moment in time. Without a doubt, if the prosecution offers a picture of a defendant “working” at a food stand during the San Ginaro festival as somehow indicating that the person in the photograph is capable of full-time work under the strict and complex Social Security Disability Insurance law, it will fall, far short of its required burden of proof beyond a reasonable doubt.

Press releases, political posturing through sound bites, calculated and selective release of evidence intending to garner headlines may give the impression of an effective administration and a strong case. When the actual case begins, however, and the DA's office is obligated to present its proof, the prosecution cannot shirk its fundamental burden—producing credible, admissible evidence that proves its case to an impartial jury beyond a reasonable doubt. Today's headlines and news items will be forgotten and soon only facts and real evidence will matter. As a criminal defense attorney, I prefer to avoid a rush to judgment and will wait for that time.