Fordham Law


DA-police feud turns Bernie Fine investigation "into a circus," experts say

James Cohen in Syracuse.com, November 27, 2011

Media Source

The open warfare that broke out last week between Onondaga County District Attorney William Fitzpatrick and the Syracuse Police Department is a startling aberration that could damage the reputation and effectiveness of both sides, three outside legal experts said Friday.

“I can’t say I’ve ever seen a case like this, where the DA’s publicly gone on the record at length talking about how cooperation’s not taking place and going so far as subpoenaing police records,” said Eugene O’Donnell, a professor at the John Jay College of Criminal Justice in New York City. “You’d hope that that could be worked out in a much less public way.”

In a news conference Wednesday, Fitzpatrick went on at length about the police department’s lack of cooperation with his office. He said he had to seek a subpoena to get records in the Bernie Fine sexual molestation investigation — the kinds of records that are routinely shared between the agencies. He also suggested that either Syracuse police Chief Frank Fowler or Deputy Chief Shawn Broton criminally “leaked” a witness affidavit in the case.

Fitzpatrick called into question the chief’s competence, and called his department a “fiefdom.”

O’Donnell, a former police officer and assistant district attorney in Queens and the Bronx, said Fitzpatrick has a valid argument concerning the sharing of documents in an ongoing investigation. He said it is proper for the district attorney to lead the way in high-profile cases that he will be expected to prosecute — and that means having full access to the ongoing investigation.

“The ideal thing in these types of cases is for the DA to oversee the investigation...” he said. “It creates some tensions, but it is better if the DA can quarterback it, because they know the end game — grand jury, trial, legal issues.”

But, he said, “high-profile cases make people lose their minds sometimes and do things they shouldn’t do.”

The police have refused to share records in the early stages of the Fine case. Mayor Stephanie Miner has backed Fowler and Broton, saying records in the case, which began with allegations that Fine molested a child years ago, will be released at the appropriate time.

James Cohen, an assistant professor of law at Fordham University and a criminal defense attorney, agreed that Fitzpatrick is right to be upset about the police not freely sharing records.

“It’s highly, highly, highly unusual for there not to be cooperation between the police department and district attorney’s office,” he said. “If the district attorney expresses interest in a case that the police are already investigating, nine times out of 10, or even more, the two organizations cooperate with one another.”

Eric Lane, a professor at Hofstra University School of Law and a senior fellow at the Brennan Center for Justice, agreed.

“It is ridiculously embarrassing to have to go to court for those records,” he said. But both men, who reviewed Fitzpatrick’s news conference and the news coverage surrounding it at The Post-Standard’s request, said the DA went overboard.

“No matter what’s going on there, a lot of the things he said are ill-advised,” O’Donnell said. “A lot of it seems personal and petty and it doesn’t seem governmental ... The longer he rants, the more personal it looks.”

“I think he makes some fair points that he was entitled to make, but the other stuff was a rant and he shouldn’t have been doing it,” Cohen said. “There’s real bitterness that comes out from this prosecutor, and that’s inappropriate. You don’t air that stuff in public.”

Cohen said that if the DA and the police don’t work together, the investigation could be compromised.

“If you screw the investigation up, this guy has a much better chance of getting off,” he said. “That would be a real tragedy if these people are really victims.”

O’Donnell agreed.

“It’s a terrible time for a turf war,” he said. “I think the public doesn’t want to hear this, especially in a case that involves child protection.”

“It’s taken these serious claims and turned them into a circus,” Lane said. “If there are real victims involved, (the officials) ought to be reminded of that.”

O’Donnell said the open dispute could put rank-and-file police officers into a tough spot, trying to focus on their jobs while worrying that they might get heat if they try to accommodate one side or the other.

He said there is a natural tension between district attorneys and police, but those differences are usually kept behind closed doors. Having been on both sides, O’Donnell says he believes district attorneys often become arrogant if they have held office for a long time.

“I have to say that the DAs can be awfully self-righteous at times, and I think that’s because they’re so uniquely powerful and unscrutinized,” he said. “They start to think that they are above criticism. And when they do get criticized, there’s a lashing out sometimes, an over-the-top kind of response.”

He believes that because of the power they wield, both district attorneys and police chiefs should be subject to term limits.

During his news conference, Fitzpatrick accused Fowler and Broton of trying to sabotage his office’s investigation of the Fine matter, and suggested he might do an investigation on his own. City officials, meanwhile, consulted with an assistant U.S. attorney about the case, and Friday, federal authorities joined city police in executing a search warrant at Fine’s house in DeWitt.

Lane said the police and the mayor may be reticent to hand over material to Fitzpatrick because they are concerned he will try to make the police department look bad in its handling of the 2002 complaint against Fine. “They’re all trying to duck for cover,” he said.

Both O’Donnell and Cohen said they believe it would be problematic if the district attorney’s office and the city police or federal authorities pursued dual investigations in the case.

“You risk the ultimate result to the extent you’re creating possibly inconsistent statements about the subject matter of the investigation,” Cohen said. “And that’s a problem if you’re a prosecutor. ... They’re actually jeopardizing the result by acting in this particular way.”

The best result, both men said, would be for cooler heads to prevail on both sides, and for the DA, the chief and the mayor to find a way to work together.

“At some point they are all going to have to see this as a lose-lose,” O’Donnell said. “This just diminishes trust in both sides.”

Lane suggested a simple way to end the dispute.

“The DA and the police commissioner should go out for breakfast and just talk things out,” he said. “That’s the old-fashioned way.”