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Kelly's break from the past

October 6, 2003

After Alberta Spruill died of a heart attack she suffered in her Harlem apartment during a no-knock police raid, Commissioner Ray Kelly acted quickly. He apologized for the department's actions and transferred officers. He was credited with defusing a potentially explosive racial situation.

Kelly did something else he didn't disclose. On the evening after the raid, he had the department formally interrogate the officers involved.

Since the early 1970s, an unwritten arrangement, in the words of Staten Island District Attorney William Murphy, has existed between the department and the city's five district attorneys. In cases involving civilian deaths in police custody, the department - at least in theory - agrees not to question its officers until and unless the district attorney approves.

The reason is that if officers are questioned by the department, they must be given partial immunity - officially known as "use immunity" - from prosecution, making the district attorney's job that much more difficult. Specifically, the district attorney cannot use information to indict an officer based on anything the officer says to department investigators.

It is not clear whether Kelly ordered the questioning of the officers without Manhattan District Attorney Robert Morgenthau's consent, although that appears to be the case. The department refused to comment, and Morgenthau's response was cryptic.

"Standard procedure," his spokeswoman, Barbara Thompson, said, "is that we ask them not to give the warning in circumstances where we think it is not appropriate." Asked what was appropriate in the Spruill case, Thompson declined comment, other than to say, "We have an investigation pending."

Whether or not Kelly violated the agreement, there are those who praise him for quickly questioning the officers - and point out that this is the way the department operated before the administration of Rudolph Giuliani.

Philip Karsayk, an attorney representing three of the officers in the Spruill raid, said Kelly made "a gutsy move. He was weighing competing interests and went against protocol to forego the usual understanding. He decided it was more important to get the facts out to the community to dissipate community unrest."

A former deputy police commissioner noted that in quickly questioning the officers, with or without the district attorney's approval, Kelly was reverting to standard police procedure.

"Prior to Giuliani, we always found out what had happened," said the former deputy, who asked for anonymity. "In deaths in custody, the department has a right and an obligation to find out what occurred.

"The department needs to know. Perhaps because Rudy was a prosecutor, but during his administration there was never an explanation from the department until months later," the former deputy said. "The departmentjust remained silent. And as the brutality cases of Abner Louima and Amadou Diallo showed, the public thought the worst."

The way it is. This is how things work in the Police Department Office of Public Information:

Last week, police released a videotape of a silver-haired bandit committing a push-in robbery. As usual, for reasons unexplained, they refused to provide additional information.

That all changed a day later when Deputy Commissioner Michael O'Looney spotted the man at Union Square and helped police arrest him. No fewer than four cops from DCPI - as the office is known - flew out there. Kelly showed up. O'Looney held a news conference and talked up his role to beat the band.

This was not his first "police action," as they say. His first month in office, he talked a gunman into surrendering inside the 19th Precinct. He may soon have as many notches as Kelly's predecessor Bernard Kerik, who delighted in personally taking bad guys off the street, then holding forth about his exploits on camera.

But if O'Looney continues doing his public relations job as he does, he may soon equal Marilyn Mode, who worked ineffectually for Kerik's predecessor Howard Safir.

O'Looney's problem is not that he deliberately dispenses false information as Mode did. He dispenses little information whatsoever - and virtually none to Newsday. A story last week by reporter Sean Gardiner on the homicide spike in the 103rd Precinct in Queens included no department explanation because O'Looney offered none.

It's not totally his fault. He doesn't set policy. Unlike Giuliani, Mayor Michael Bloomberg promised a "transparent" Police Department. Instead, it is Giuliani whom Kelly increasingly resembles. Kelly distrusts the press, especially in-house police reporters, preferring the less critical national media.

Last month, O'Looney informed in-house reporters they could see deputy commissioner for counterterrorism Michael Sheehan being interviewed on cable television. Asked if Newsday could interview him, the answer came back: "No."

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© 2003 Newsday, Inc. Reprinted with permission.