One Police Plaza

Ray, Where Art Thou?

April 15, 2013

At least to this reporter, the most intriguing question of the current Stop and Frisk trial is why Police Commissioner Ray Kelly is not testifying.

Here is the longest-serving and most powerful police commissioner in city history.

Here is his signature policy, which has evolved into the single biggest police controversy of his decade-long tenure, one that strikes at the heart of his leadership, and he won’t come to court to defend it.

The stakes are enormous.

There is the real possibility that the presiding federal judge, Shira Scheindlin, might appoint an outside monitor to supervise the department, something unprecedented in New York City and a challenge to Kelly’s legacy.

The city’s witness list includes 100 people — from cops to precinct commanders to top brass.

Last week, Joe Esposito, the recently retired Chief of Department, the NYPD’s highest ranking uniformed officer, testified. Kelly’s spokesman Paul Browne, considered the most powerful man in the department after Kelly himself, is to testify this week.

But not the police commissioner. Why?

Jonathan Moore, the plaintiffs’ lead attorney, said that, when the case began five years before, he tried, unsuccessfully, to depose Kelly.

“Early in the case we asked to do the deposition of him because he is the top guy in the NYPD. The city didn’t want to make him available. They said he was too busy.”

Chris Dunn of the NY Civil Liberties Union, which is a participant in the trial, said, “Given the importance of this trial, the idea that Commissioner Kelly is too busy to testify is laughable.“

Judge Scheindlin has taken note of Kelly’s absence.

After the former police captain and now State Senator Eric Adams charged that Kelly had told him that the police stopped black youths “to instill fear of the police,” Kelly filed an affidavit saying Adams’s testimony was “absolutely, categorically untrue.”

Scheindlin refused to allow the city’s lawyers to introduce his affidavit, saying that if Kelly wanted to make his point he would have to testify.

“If he’d like to come here, he’s welcome in this courtroom,” she said.

So why is Kelly refusing to testify?

There are both advantages and disadvantages.

For someone as concerned about his image as Kelly, he avoids having to answer uncomfortable questions about a controversial policy that targets young black males, raising the bugaboo of “racism,” a sore and sensitive subject for the NYPD.

He also avoids placing himself in a position where he can be lectured by Scheindlin, who has already proven herself somebody to be reckoned with.

Take the exchange that occurred last week between her and Esposito.

As Esposito began to explain that what has been overlooked in the Stop and Frisk controversy is “how many crimes are prevented by stopping a person that is giving us reasonable suspicion,” Scheindlin cut him off.

His answer, she said, was “turning into a narrative, otherwise known as a speech, and I am not here for that purpose.”

Yet it was not Esposito who cranked up Stop and Frisk, leading to five million stops, mostly of black males between the ages of 14-21, since Kelly’s return as police commissioner in 2002.

Indeed, Kelly is nothing if not a micromanager, regarded as so hands-on that not even a transfer or promotion can occur without his approval.

“Have you discussed with Commissioner Kelly the toll that the policies that are being challenged here may be having on a generation of black and Hispanic youth?” Moore asked Esposito.

“I discussed the issue of stop, question, frisk with Commissioner Kelly and those issues may have come up,” Esposito answered.

As the Times’s Joseph Goldstein wrote: “But details were not forthcoming.”

So is Kelly the general who takes credit for his troops’ successes, then vanishes when danger approaches?

Well, for the past ten years he has trumpeted his every success both in lowering the city’s crime rate to record levels and claiming to have kept the city safe from terrorism.

Yet when the subject of race arises, Kelly has been especially prickly — and vulnerable for overreacting.

In 2004, Richard Neri, a white police officer, shot and killed Timothy Stansbury, an unarmed 19-year-old black youth, on the roof of his Brooklyn apartment building. Kelly immediately condemned Neri. Before the department’s investigation had been completed, Kelly announced that there was “no justification” for the shooting. A grand jury subsequently declined to indict Neri, concluding the shooting was accidental. Kelly ate some crow for his premature comment on the shooting.

In 2008, Emergency Service Unit Lieutenant Michael Pigott ordered one of his officers to taser Iman Morales, an emotionally disturbed Hispanic man who, holding an eight-foot-long fluorescent lightbulb, was menacing another officer trying to rescue him. Morales then fell to his death.

With the incident caught on cell phone and replayed again and again on the six o’clock news, Kelly gave the lieutenant no quarter. He stripped Pigott of his gun and badge, placed him on desk duty at another unit and warned him he faced criminal charges and prison. Eight days after the incident the lieutenant shot himself to death.

On the other hand, Kelly’s refusal to testify may be part of a designed strategy.

It allows him to issue his own statements, as he did with Adams; to offer justifications for his policies, as he did before Al Sharpton’s National Action League; and to lash out at the trial’s proceedings, as he did recently in the Wall Street Journal.

In the Journal interview, he said an outside monitor undermines the authority of the police commissioner and called it, “one of the biggest scams in law enforcement.” Democratic politicians, he maintained, were using it as a means to win the primary.

He also called Scheindlin biased. ”The judge is very much in their corner and has been all along throughout her career,” he said.

The question then is, who is making the decision to keep Kelly from testifying.

Was the strategy designed by the city’s lawyers? Or by Kelly, who has been granted iconic standing in the administration of Mayor Michael Bloomberg?

“He [Kelly] is above everything,” Moore said. “To settle a case with the city, you have to go to the NYPD to get their imprimatur. Even if the city says yes, the police can still say no.”

Says Dunn: “Lawyer calculus is different from Kelly’s or Bloomberg’s calculus. The decision not to have Kelly testify has enormous implications for the trial. The mayor and police commissioner almost certainly had a political reason for this decision.”

Corporation Counsel Michael Cardozo, who attended the trial when Esposito testified, said outside the courtroom last week that he would not discuss the city’s legal strategy as to why Kelly was not testifying.

Asked by this reporter whether the call was his or Kelly’s, Cardozo walked away.

Edited by Donald Forst


Copyright © 2013 Leonard Levitt