As members of the New York City Council convened last month to discuss the Law Department’s budget, they asked the city’s top lawyer to account for the rising cost of police misconduct.
The topic had been driving headlines for weeks. In February, an analysis of payout data had shown that the city shelled out $121 million in NYPD-related settlements and judgments in 2022, a five-year high. Weeks later, officials announced that millions more in taxpayer dollars would go toward what lawyers for demonstrators called a “historic” deal to settle claims involving the NYPD’s violent response to racial justice protests in 2020. Of particular concern to some members of the council’s Committee on Governmental Operations was reporting by ProPublica and New York Magazine on how city lawyers aggressively fight these kinds of misconduct claims, even in the face of compelling evidence that officers crossed the line.
“I found it really troubling,” said Council Member Lincoln Restler of ProPublica’s reporting, which focused on the unit that handles the most high-profile police misconduct cases, the Special Federal Litigation Division, or Special Fed. “And I am concerned about the approach of the Law Department over many years.”
In response, Sylvia Hinds-Radix, the head of the Law Department, told Restler and the committee that she “vociferously” disagreed with any characterization that agency lawyers fought claims tooth and nail “without evaluating what is before us.”
“We have the obligation to defend those things we do,” she said. “And the cases that need to be settled, we evaluate them and settle them.”
Left unmentioned in Hinds-Radix’s March 22 testimony was any reference to Jawaun Fraser, whose case provided an almost textbook example of her department’s hardball approach, a strategy that confounded even the judge overseeing the lawsuit. Just a day earlier, a federal jury in Manhattan had awarded Fraser $2 million after city lawyers spent the previous three years fighting him in civil court.
Fraser had sued New York and three NYPD detectives after spending two years in prison on a robbery conviction that was later overturned. A jury found not just that officers had fabricated evidence against him but that the city itself was liable for massive failures in NYPD training. Yet for years, city lawyers had treated it as what’s called a “no-pay” case, steadfastly refusing to settle while labeling Fraser a “drug dealer” who was unworthy of “a dime.”
They maintained that position even as Fraser’s lawyers revealed numerous inconsistencies and contradictions in the arresting officers’ own testimonies — and as evidence mounted that the NYPD had, for decades, failed to properly train its 35,000-officer force on their legal obligations to disclose certain material, like past lawsuits, that could impact officers’ credibility in court. That violation flew in the face of bedrock legal protections codified by Supreme Court rulings from a half-century ago, beginning with the marquee 1963 case Brady v. Maryland, which requires the government to turn over information favorable to the accused.
Amid the revelations, the senior district court judge overseeing the case took the rare step of declaring that she’d “never understood why this was a no-pay case, and I understand it less now.” The judge, Colleen McMahon, went on to say that in her 22 years on the bench, she’d never seen documentation of the city’s constitutional failures “like the evidence I’ve heard in this case.”
“I am pretty appalled by what I have heard,” the judge said.
A Law Department spokesperson defended Special Fed’s litigation of Fraser’s lawsuit, saying in a statement that after evaluating “all the facts and evidence” agency lawyers “challenged this case all the way to trial.”
“While we are disappointed with the verdict, we respect it,” said department spokesperson Nick Paolucci.
But Thomas Giovanni, who served as a top official in the Law Department from 2014 until last December, said the agency’s police defense practice too often seeks to justify misconduct after the fact, rather than proactively identifying problems, settling them early and pushing its client to reform.
“Are we the oncologist,” he asked of the city lawyer, “or are we the janitor?”
Some civil rights lawyers in the city say the Law Department’s conduct in the Fraser case suggests the latter.
Fraser’s civil lawsuit centered on a botched buy-and-bust operation that NYPD narcotics officers conducted in a Manhattan public housing project on Oct. 21, 2014 — and the lawsuit history of the detectives who played key roles in Fraser’s arrest.
In sworn filings, the police said Fraser confronted an undercover police officer that day, robbing him of a fake New York state license and $20 in drug buy money. Fraser, then 18, denied this, saying that the officer offered up his ID as proof that he wasn’t a cop, and that the detectives framed Fraser for robbery after he merely took a photo of it.
Even though no drugs or buy money were discovered on Fraser that day, he was charged based on the detectives’ claims that he stole the undercover officer’s ID. The case hinged on the officers’ testimony versus Fraser’s, and a jury eventually convicted him of a robbery charge. He was sentenced to two years in prison.
What that jury didn’t know, and what Fraser’s appellate lawyers only discovered years after his conviction, was that six officers involved in his arrest had been named in a total of 35 civil lawsuits. Yet Fraser’s defense lawyer said he only received two cases from a prosecutor ahead of trial — a lack of disclosure that would later prompt a judge to overturn Fraser’s conviction in 2019. The following year he filed a lawsuit in civil court seeking accountability — and compensation — for the actions of the NYPD detectives who had put him behind bars.
In her opening statement last month, though, Special Fed attorney Caroline McGuire’s pitch to jurors was that Fraser was actually guilty of the robbery and was now trying to “trick you into awarding him money.” She pointed to comments Fraser had made to a parole board in which he appeared to accept responsibility for his “crime” — a position Fraser said he only took after older inmates counseled him to express remorse if he wanted to get paroled.
McGuire argued that Fraser had been lucky to get his conviction overturned, going so far as to say that his own defense lawyer was partly at fault for the whole ordeal because he hadn’t looked up lawsuits against the officers “despite the fact that it would have taken him only five minutes.”
McMahon stopped her. “My first instruction of law, under the Brady rule, a defense lawyer has no obligation to look for lawsuits,” the judge explained.
“You had better watch it,” she warned McGuire.
After the city lawyer finished, the judge went even further, excusing the jury and summoning to the podium the chief of Special Fed, Patricia Miller, who was watching from the gallery.
“Ms. Miller, do you have an explanation for why one of your assistants would come into my courtroom and suggest that a defense lawyer has an obligation to go look up material that he doesn’t have any obligation under Brady to look up?” she asked.
Miller told the judge that McGuire hadn’t intended to mislead the jury and was in fact trying to make a point about the relevance of the lawsuits — an argument McGuire’s co-counsel then reiterated. But the judge rejected the city’s position entirely: “I’m here to tell you what came out of Ms. McGuire’s mouth was not permissible,” McMahon said.
Over the next week, Fraser’s lawyers pointed out multiple inconsistencies in the various police accounts of Fraser’s arrest, casting doubt on the official narrative of events. Among them: The undercover officer claimed that Fraser had stolen his ID, but no officer testified seeing a detective recover it from Fraser. In fact, only a photocopy of it was later submitted as evidence.
Fraser’s lawyers also elicited testimony that went to several officers’ credibility, showing that the undercover officer and another detective had never told the prosecutor in Fraser’s case about a combined eight lawsuits they’d been named in, which alleged false arrest and other civil rights violations, and which settled for $246,500 in total. (The district attorney’s office, which has its own obligation to search for such material, also conducted an incomplete search in Fraser’s case, failing to turn up all the lawsuits the office knew about, a prosecutor testified in Fraser’s civil trial.)
As it turned out, the NYPD itself had for decades failed to train its employees on their legal duties to inform the people they arrest of important information that might help their cases. Thousands of pages of internal training materials turned over in the Fraser case revealed that it wasn’t until 2014 — 51 years after Brady was decided and only after New York’s highest court affirmed that records of civil lawsuits had to be turned over — that the NYPD put in writing officers’ disclosure obligations. And even then, the department at first mischaracterized them, not clarifying its instructions until 2017 to include not just information which could exonerate an accused person, but also material that goes to officers’ own credibility, such as civil lawsuits.
The failure of basic disclosure became all the more remarkable when Fraser’s lawyers learned that the department maintained an extensive database of civil lawsuits against officers — though it would remain largely inaccessible to the cops referenced in it, as well as to prosecutors.
A top NYPD lawyer in charge of the database testified that officers and assistant district attorneys interested in finding out about lawsuits could email her. To raise awareness about its existence, she started giving oral presentations to cops about their obligations to know their lawsuit histories beginning in 2014, instructing them about “Googling yourself.”
The supervisors who received those training sessions were then supposed to tell rank-and-file officers at roll calls ahead of their tours about their legal responsibilities, the NYPD lawyer said on the stand, a scenario that Judge McMahon likened to the 1980s police procedural “Hill Street Blues.”
“I’m flabbergasted by what I have heard in the last two days, I got to tell you, I’m flabbergasted,” McMahon said on March 17.
In response to all this, Special Fed’s closing arguments to the jury were fairly straightforward: If they believed that Fraser had committed the 2014 robbery, and thus hadn’t been framed, the rest was moot. To bolster their position, the attorneys returned to Fraser’s two parole board appearances in 2017 and his comments there, including what seemed to be an acknowledgement that he was dealing drugs on the day of his arrest.
By his own admission, Fraser had as a teenager sold crack. But he maintained at his civil trial that he’d given up the trade by the time of his arrest and was proud to have landed a job as a sheet metal union apprentice.
The jury believed Fraser, and after the weeklong trial deliberated for about a day before finding unanimously in his favor.
The city’s approach to the Fraser case may now cost taxpayers more than double what they would otherwise have been liable for.
Two years before the jury verdict, Fraser’s lawyers say, they offered to put the matter to rest for $1.6 million, inclusive of attorneys fees. “From then until time of trial, they told us they had no interest in discussing settlement,” said Joel Rudin, one of Fraser’s lawyers. When he asked his adversary at Special Fed why, the answer that came back was revealing. According to Rudin, the city lawyer said he had been told that “higher-ups had made a decision it was a no-pay case,” and that the NYPD “didn’t want to settle.”
While the NYPD can offer its opinion on proposed settlements to city lawyers, former Special Fed attorneys say the decision to offer a deal is exclusively theirs — and the city charter gives the city’s chief financial officer, the comptroller, the ultimate authority on whether to cut checks. (The Law Department did not address ProPublica’s questions about the settlement discussions in Fraser’s case.)
With attorneys’ fees, the total city cost in Fraser’s case could now jump to $4 million, including a total of $425,000 in punitive damages assigned to three officers in the case.
The NYPD did not say whether the detectives have faced any internal disciplinary action or changes to their duties. In a statement, a department spokesperson said officials are “disappointed in the verdict, and remain committed to meeting our disclosure obligations.” The police and law departments also noted that the NYPD has enhanced its efforts to raise awareness around discovery rules in the past decade and took steps to ensure that disclosures are “complete and timely.”
As for its approach to civil litigation, the Law Department “takes seriously its obligation to carefully evaluate the merits of each case and challenge claims at trial as necessary,” the agency spokesperson said.
But to Fraser’s lawyers and others in the city’s civil rights bar, Special Fed’s posture — and its apparent deference to the NYPD — helps enable the kind of police misconduct at the heart of cases like Fraser’s. A report released this month by the city comptroller found that the NYPD accounted for a third of all tort payouts citywide last fiscal year and that its settlement costs — $237.2 million — were the highest among all city agencies.
“There’s still this kind of dismissive approach” in the NYPD about being sued, said Michael Bloch, another of Fraser’s attorneys. “And that is a really fundamental problem that, unfortunately, I think is going to continue to result in people like Jawaun being falsely convicted of crimes.”
Indeed, the verdict in Fraser’s case also exposes the city to additional liability in future cases involving NYPD officers’ failure to turn over impeachment material. (Fraser’s lawyers have already identified at least three convictions that were overturned in recent years because of such disclosure failures.)
Meanwhile, prosecutors are also dealing with the fallout from the civil case.
Given the finding that the undercover officer and another detective had fabricated evidence in Fraser’s case, a spokesperson for the Manhattan District Attorney’s Office said officials in a post-conviction review unit are examining current and past cases that have relied on the officers. Defendants in about 20 open cases brought by the city’s Special Narcotics Prosecutor are being notified of the jury’s verdict, and officials in that office are reviewing past cases as well, a spokesperson there said.
Both officers are still on the job. A lawyer for their union didn’t respond to questions.
For his part, Fraser said measuring cost is harder than tallying amounts on a verdict sheet. The whole ordeal forced him to leave New York, which he said is no longer “my happy place,” and where he is wary of the police. He now lives in quieter surroundings in suburban New Jersey. He has no plans to return to the city that he called home before he was imprisoned.
But the worst part by far was losing those formative years with his children. From his son’s first day of daycare to his daughter’s first song and dance at school, these are times with his kids that he said he can never get back.
“Sometimes the kids don’t remember it, but I don’t even have that memory to tell them about it,” he said. “Because we didn’t get to do it, because I was incarcerated.”
