How Black Lives Matter is Shaping New York’s D.A. Elections: “Police and D.A.s Work Hand in Hand”

Candidates are sparring over their attitudes toward the police in Tompkins and Westchester counties, which hold DA elections on Tuesday.

Update (July 2020): Mimi Rocah ousted incumbent Tony Scarpino in Westchester; Tompkins incumbent Matt Van Houten prevailed.

Two New York district attorneys who have faced fire for their handling of allegations or incidents involving police officers are locked in Democratic primaries on Tuesday.

In Westchester County, WNYC/Gothamist reported last month, the office of DA Tony Scarpino received audio tapes from a whistleblower in February 2019 that documented how certain police officers were framing defendants, yet the office continued to prosecute people and send them to prison based on those same officers’ testimonies. In Tompkins County, DA Matt Van Houten chose to prosecute a Black woman who had stepped in to protect a friend who was being tased by the Ithaca police. The 2018 events sparked sustained Black Lives Matter protests until a judge dismissed the charges and placed the blame instead on the “regrettable actions by the police.”

Now these DAs face primary challengers who are faulting them for these decisions and promising policy shifts, against the backdrop of nationwide protests against police misconduct and impunity.

Public defenders and criminal justice reform advocates stress that connecting the dots between policing and prosecution is crucial right now. “We need to talk about the links between the whole system,” said Henna Khan, a public defender with Neighborhood Defense Services. “Police and DAs work hand in hand, and they rely on each other to do their jobs.”

Besides deciding how to handle cases of police violence or misconduct, DAs choose whether to rely on the word of police officers. As the Westchester County whistleblower and countless similar stories show, prosecutors routinely work with officers known to have engaged in lying or misconduct, a history often not disclosed to defense lawyers, let alone to the broader public. 

“We’re in front of an iron curtain when it comes to knowing whether police are lying in court, or are abusive in the street, and that puts us in danger,” said Monifa Bandele, an advocate with the Malcolm X Grassroots Movement and with the Movement for Black Lives.

State advocates say they want New York DAs to disclose any concerns regarding a police officer’s credibility to defense lawyers, and to altogether stop relying on testimony by officers who have a history of misconduct. DAs have long faced that demand, which could pressure the police to sideline officers whose reports will not be trusted. “Why are you trying to keep the evidence when the police officer that you will be putting on the stand and who is taking an oath to tell the truth has lied in the past?” asked Khan.

Through DAASNY, their professional association, DAs also influence state politics, a privilege they used this year to get state politicians to weaken the 2019 reforms to the state’s pretrial rules.

The 2019 law ensured that most people are released pretrial without having to post bail. In March, lawmakers partly retreated and increased the range of charges eligible for bail, and last week, Governor Andrew Cuomo advised prosecutors to charge some protesters arrested for looting with a higher charge than is typical to circumvent restrictions on pretrial detention. When people are detained pretrial, without a conviction, it often means they are held based on the word of the police officers who arrested them. It also makes it likelier that they end up pressured to plead guilty.

“We want to continually and systemically reduce the co-dependence of police and prosecutors across the board,” Somil Trivedi, an attorney with the ACLU who wrote this month about the ties between DAs and police, told me. “But charging cops or transferring those cases to independent counsel isn’t enough to ensure independence. Prosecutors and candidates must commit to structural changes like refusing police union donations, prohibiting lying cops from testifying, and lobbying for divestment from police—and indeed from their own offices.”

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Ed Kopko and Mimi Rocah, respectively the challengers in Tompkins and Westchester counties, embraced at least one of these positions in interviews with the Political Report. They each said they would maintain a public list of police officers with a history of misconduct or lying. They also committed to not rely on those officers’ work or testimonies to prosecute cases.

Scarpino, the Westchester County DA, released a short list of police officers with credibility issues in February. But his deputy said prosecutors will still be calling upon these officers’ testimonies, and the list did not include the names flagged in the whistleblower recordings that his office had received a year prior. Instead, prosecutors kept using those officers’ work to obtain convictions.

“Those recordings would have lit a fire in my office,” Rocah told me. “You have an obligation in this context to stop using those police officers in active cases. … You err on the side of disclosure, and you do not use police officers at least during the pendency of an investigation like this.” 

Rocah, a former federal prosecutor, also pledged to review all of the past cases that involved officers named by the whistleblower, and to make this a broader mission for the office’s conviction integrity unit. “When you have allegations of lying or misconduct or abuse by police officers, you’re going to go back and look at the other cases that they touch,” she said.

In an email through a spokesperson, Scarpino said his office is still investigating the allegations in the whistleblower’s complaint. But he did not explain why he trusted these officers enough to rely on their testimonies in other cases although they were under investigation. Instead, he expressed concern “that airing uncorroborated information in the press is damaging to a serious investigation.”

By contrast, Rocah said the damage has come from the DA office’s lack of disclosure, since it left defense lawyers unaware of the credibility issues surrounding those police officers.

Rocah also pointed to her pledge to not take donations from police unions, unlike Scarpino, as a reason she would be able to better hold police accountable.

The proximity between prosecutors and police is also fueling the debates in Tompkins County. Its DA race is playing out in the aftermath of a 2018 incident on the Ithaca Commons in which police officers tased Cadji Ferguson, a Black man, and arrested Rose de Groat, a Black woman who police said “attacked” them on Ferguson’s behalf. Although Ferguson and de Groat said the initial commotion was caused by a white man assaulting de Groat, the police allowed this person to leave the scene. Van Houten, the DA, then chose to take the case against de Groat to a grand jury that returned multiple felony counts. 

Local groups such as Black Lives Matter Ithaca responded by organizing rallies protesting these prosecutions and denouncing the arrests as police brutality and racist law enforcement. One judge eventually found Ferguson not guilty, and another dismissed the charges against de Groat.

Kopko, Van Houten’s challenger, was de Groat’s defense lawyer in this case. He argues that the DA compounded the police’s “brutality” when he refused to dismiss the charges. “The district attorney should have taken responsibility for being influenced by the police and for his own behavior in failing to charge the police,” he told me. He faults a “total insensitivity to the fact that the Black community as a community is being victimized and marginalized.”

Van Houten acknowledged in an interview that his handling of the case caused “undue trauma” and that he “could have done a lot of things better in that case.” Asked for specific examples, he replied he should have talked to “more people with different perspectives,” and that if a similar situation arose in the future he would “sit down with the community leaders of color and say, here’s this case, tell me what I’m missing, help me see what I don’t see.” However, he did not say he should have dismissed the charges against de Groat; he argued instead she should have accepted more responsibility. “Nobody acted perfectly in that situation, everybody has blame,” he said. “It’s not a case of police brutality that is equivalent to George Floyd.”

Public defenders nationwide have been drawing attention to the pervasiveness of racial injustice in encounters between African Americans and police officers, though. “George Floyd was murdered, but what about all of the people who weren’t murdered and who survived?” Khan asked me in a conversation that did not touch on Ithaca specifically. “What happens to their voice and why are they not listened to?”

Van Houten, unlike his challenger, said he would not release a public list of officers with credibility issues on the grounds that Tompkins County is a jurisdiction with small law enforcement agencies. He said he discloses such issues with defense attorneys, though, and he also touted his support for “alternatives to incarceration” and for less pretrial detention for lower-level offenses. Still, earlier this year, he added his voice to other DAs’ campaign for the 2019 bail to be scaled back, arguing that it raised public safety concerns.

Kopko, by contrast, told me he “enthusiastically” supported the 2019 reform and criticized law enforcement groups for “fear mongering” against it before they even came into effect.

Besides Tompkins and Westchester, only 12 New York counties have DA races this year; others will hold elections in the years ahead, including in 2021 in Brooklyn and Manhattan, where Black Lives Matter is already making waves.

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In other ways, Kopko and Rocah do not fit the mold of some of the candidates who have run on the bolder progressive platforms to which we have recently grown accustomed from Queens and San Francisco to Austin.

Kopko cast policing issues as a matter of “rare rogue police officers.” He would rather shift more funding toward “extensive training” and better police responses to mental health crises, he said, than reducing police budgets and steering such tasks to non-police workers. He framed his interest in reform by drawing a stark if conventional line between nonviolent and violent offenses, referring to those who are “beyond help.”

And he faulted Van Houten for recusing himself from the prosecution of two officers accused of rape and perjury; the cases were transferred to a DA elsewhere. Van Houten says this was to avoid perceptions of a conflict of interest. “The only way to ensure that [an officer] is prosecuted just like anybody else in this community is to have a prosecutor that doesn’t know him,” he said. Kopko argues that this fosters a sense of impunity, and that he would pursue such cases within his office; he similarly opposes creating a civilian review board with the power to issue subpoenas because “I would rather do that myself because the people have elected me to do that.”

Some advocates caution that improved police accountability cannot come from individual DAs. “The notion that any one prosecutor can overcome a conflict of interest ignores the structural conflict of interest that is independent of any individual prosecutor’s ability,” said Trivedi.

Rocah expressed more openness to “reducing the footprint of the police.” But in contrast with the signature promise of decarceral candidates such as Queens’s Tiffany Cabán last year, and with some advocates‘ push to not use the criminal legal system as a tool to solve social ills, she resisted the idea of reducing the footprint of DA offices. She wants to strengthen diversion programs and community outreach by prosecutors, she said, which takes funds and staff. 

She also shares many current DAs’ views that there were “glaring issues” in the scope of the 2019 bail law, and that it “made sense” for lawmakers to revisit the issue to increase the set of offenses eligible for bail. Overall, though, she said bail reform was urgently needed since the prior system “literally incarcerated people because they could not get pay to get out.”

Many New York advocates fought the partial rollback this year. Now they want to go further in getting people out of jail pretrial. “[Prosecutors] regularly hold people pretrial in order to get them to plead out,” said Bandele. “We say stop pretrial detention. … We wanted to take that away, they fought with the government to keep it in place.”

She added, “We’ve got to take away the things prosecutors use to abuse.”

Explore our coverage of 2020 DA elections throughout the country.