One Police Plaza

Why the feds joined Bronx DA

February 8, 1999

There are perhaps two reasons the U.S. attorney for Manhattan's Southern District, Mary Jo White, has joined the Bronx district attorney's office in investigating last week's fatal police shooting of an unarmed African peddler, Ahmed Diallo.

The first is the sense in federal law enforcement circles that the police department of Mayor Rudolph Giuliani - White's predecessor once removed - has not dealt effectively with these isolated tragedies.

The second is that, despite a statement issued last night that the U.S. attorney's office has "complete confidence in the ability of the Bronx district attorney's office," federal prosecutors feel that the Bronx D.A. s office is lacking.

No one in the U.S. attorney's office will speak publicly of the former. As an example of the latter, one had only to listen to Assistant U.S. Attorney Andrew Dember's closing argument in last summer's federal trial of ex-cop Francis Livoti in which Dember called the Bronx D.A. s office, which had prosecuted Livoti two years before, "ridiculous" and "incredibly unprofessional."

Steven Reed, spokesman for Bronx District Attorney Robert Johnson, last night said Dember's remarks were "the ill-advised comments of one assistant United States attorney" and "have nothing to do with the relationship between our two offices."

Livoti was acquitted in 1996 in Bronx State Supreme Court of the criminally negligent homicide of Anthony Baez, who died after Livoti used a department-banned choke-hold on him, following an argument involving a touch-football game. Bronx prosecutors bungled their case by using as witnesses (therefore vouching for their credibility) Sgt. William Monahan and Officer Mario Erotokitou, who are now under investigation by the feds for perjury for their testimony in that very case.

Livoti was convicted in federal court last June of violating Baez civil rights. Besides depicting the Bronx D.A. s office as unprofessional in that case, federal prosecutors implied that the office was part of a conspiracy with the NYPD and the Patrolmen's Benevolent Association, a charge they themselves surely didn't believe. (Perhaps that's the way to convict a cop in federal court.)

Dember's comments notwithstanding, the U.S. attorney's relations with the Bronx D.A. have traditionally been harmonious, unlike the turf battles with Manhattan D.A. Robert Morgenthau. In the 1980s, Giuliani and Bronx D.A. Mario Merola cooperated in prosecuting scandal-plagued Wedtech military contractors. In the 1990s, White and Johnson cooperated in prosecuting Bronx drug gangs.

Apparently seeking to smooth relations, the U.S. attorney's office said last night, "We decided to review the fact of Mr. Diallo's shooting at an early stage because of the matter's public importance and the possibility that federal civil-rights laws may be implicated . . . We will coordinate closely with Mr. Johnson's office as his investigation proceeds."

Those 48 Hours. The public (and some newspaper editors) may be forgiven their failure to appreciate that the so-called 48-hour rule has no bearing in the Diallo shooting, despite its mischaracterization by none other than the world's most famous ex-prosecutor.

The rule - which prohibits the NYPD from questioning an officer for 48 hours, generally beginning from the time the incident occurred - were the first words out of Mayor Giuliani's mouth last week when asked to explain why the department had virtually no information about Diallo's shooting.

The clearest explanation was provided by acting PBA president Doc Savage. The 48-hour rule, he said, applies only to departmental, or non-criminal, charges. It has no bearing on criminal cases because prosecutors order the NYPD not to question cops for fear of compromising their investigations.

Marilyn's Version. Following the explanation of former deputy mayor Randy Mastro, police department spokeswoman Marilyn Mode offered her version last week of why the NYPD refused from August, 1997, to January, 1998, to provide statistics on transit crime that The Daily News had requested under the state's freedom-of-information laws.

Her reason: an ongoing internal NYPD investigation following its discovery that for the past three decades, transit crime had been under-reported by 20 percent. (Citywide crime statistics were accurate, Mode maintained, because the under-reported transit crimes appeared as precinct crimes.)

While the state's freedom-of-information law allows city officials to withhold data disclosing confidential law-enforcement techniques, it says nothing about keeping crime statistics secret while the department conducts an internal investigation. Investigations may be private; the data is public.

©1999 Newsday, Inc.Reprinted with permission.