Judge Blasts City for Delays in Queens Police Abuse Case

By Alan Feuer,

Late one evening in January 2015, the police arrested Rosie Martinez on a charge of selling heroin and held her overnight at their station house in Queens.

Ms. Martinez, now 52, professed her innocence and asked for a lawyer, but a group of officers questioned her for hours. When she told them she knew nothing, the officers grew furious, she said. She claims they punched her, choked her and pried her fingers back so violently, it permanently damaged her right hand.

But that was only the start of Ms. Martinez’s ordeal, according to a judicial order issued Wednesday. One year after her arrest, when Ms. Martinez sued New York City alleging excessive force by the police, its lawyers said that she had made the whole thing up and dragged their feet in identifying the officers. Over the next two years, a federal judge in Brooklyn authorized 11 depositions, held 13 separate hearings and issued 14 orders for discovery, trying repeatedly to force the city to reveal what it knew.

Then last month, lawyers for the city dropped a bombshell: the police, they admitted, had actually conducted three investigations into Ms. Martinez’s claims. But even though the inquiries had generated more than 1,000 pages of evidence and included interviews with a captain at the precinct, several lieutenants and at least one sergeant, no one had mentioned them to Ms. Martinez’s lawyer.

On Wednesday, having finally lost her patience, the judge considering the suit, Cheryl L. Pollak, issued a blistering decision, accusing the city’s Law Department of “complete and utter failure” to investigate the case and hinting that commanders and officers at the 107th Precinct may have engaged in a cover-up. Citing an “unprecedented and disturbing pattern of delay,” Judge Pollak recommended that the case skip its fact-finding stage and go straight to awarding Ms. Martinez damages. She also urged the city to review its policies for producing discovery and investigating police misconduct claims.

It was not the first time that has happened. Twenty years ago, a federal judge in Manhattan issued a similar opinion, accusing the Law Department of “a cavalier attitude” toward discovery requests and saying that it treated them with the “lowest priority.” The judge in that case, John S. Martin, ordered the city’s top lawyer at the time, Michael D. Hess, to devise a method for “systemizing and streamlining” its discovery procedures.

But Judge Pollak’s decision, which still requires approval from a senior judge, seems to suggest that Mr. Hess’s improvements were not entirely successful.

“I fear that there has been a relapse of such misbehavior,” Joel Berger, the lawyer who argued the case before Judge Martin, wrote in an email Wednesday night. Mr. Berger, who once served on the Law Department’s executive staff, called Judge Pollak’s decision “a watershed opinion revealing misconduct that many of us have been experiencing in other police misconduct cases.”

“Victims of police misconduct are made to suffer twice,” he wrote. “First by the officer who abused them, and then by a Law Department that subjects them to a nightmare of virulent opposition.”

Nicholas Paolucci, a spokesman for the Law Department, said on Thursday that its lawyers take their discovery duties seriously and acted in good faith in the Martinez case to “promptly produce all information known to them at the time.”

“We will vigorously oppose this recommendation,” Mr. Paolucci said, “which we believe is not supported by the record.”

While the production of discovery might seem like a minor aspect of the law, it is in fact crucial, allowing lawyers in a civil case to get a full picture of the facts before making motions or taking depositions. Judge Pollak’s decision strikes that note, saying that the Law Department’s serial excuses and delays had Ms. Martinez’s lawyers “chasing their tail.”

From the beginning of the case, her chief lawyer, Gabriel Harvis, tried to get the city to give him the names of the officers who had questioned her, a process that took seven months and four court orders. Yet even when he got the first two names — Lt. Jason Weitzman and Sgt. Jason Forgione — both men claimed that they had nothing to do with Ms. Martinez.

As discovery continued, however, “it became apparent,” Judge Pollak wrote, “that despite all of their efforts” Ms. Martinez and her lawyers “had not been given the full story.” First, Mr. Harvis learned that the city had not turned over Sergeant Forgione’s entire personnel file, which was missing records about a previous abuse complaint, the decision said. Then he learned that the city had not disclosed detective reports about the heroin deal that led to Ms. Martinez’s arrest. When Mr. Harvis got those reports — after more delays and orders — they showed that she was not the dealer. Ms. Martinez, a housekeeper, wasn’t even there.

It was then, in November, nearly two years after the lawsuit had been filed, that Judge Pollak held a hearing and asked the city’s lawyer, Paul H. Johnson, why it took so long for the reports to be produced. “I do not know,” Mr. Johnson told her. “The client produced these documents, not me. I wasn’t the one, like, searching for them.”

But the worst was still to come, Judge Pollak wrote. One month later, the city committed what she called its “most critical failure” — one that, as she put it, “cast a completely different light on what may have occurred.”

On Dec. 18, a new city lawyer — Mr. Johnson was replaced — suddenly provided Mr. Harvis with more than 1,000 pages from three police investigations of his client’s claims. The inquiries not only cast doubt on the officers’ contention that Ms. Martinez had hurt her hand while punching the wall of her cell, the decision said; they were also never mentioned by anyone, including the 11 officers who had been through depositions.

“None of them came forward with information about this incident or the investigations for almost two years,” Judge Pollak wrote. “This suggests either a failure to conduct even the most superficial investigation by counsel or, of deeper concern, that counsel was deliberately not informed due to a cover-up perpetrated by the N.Y.P.D.”

Alan Feuer, NYTimes.com,Judge Blasts City for Delays in Queens Police Abuse Case“, https://www.nytimes.com/2018/01/25/nyregion/judge-queens-police-abuse.html,


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