July 25, 2002
By JACOB H. FRIES
olice Commissioner Raymond W. Kelly and senior officials at two police unions yesterday criticized a Manhattan judge who has ruled that three undercover narcotics detectives must identify themselves in court, saying that the order could put the detectives' lives at risk and undermine the department's ability to fight crime.
Commissioner Kelly called the order by Justice Dorothy A. Cropper of State Supreme Courtin Manhattan "bad public policy" and suggested that the officers be permitted to use fake names or their badge numbers while testifying, a common practice in drug cases. Mr. Kelly said he planned to send letters to the city's district attorneys and administrative judges that would spell out why officers' identities should be protected, and instructed undercover detectives to contact the department's legal division if asked to reveal their own names.
"We find the request deeply disturbing," Mr. Kelly said during a news conference at 1 Police Plaza. "Revealing the names of our undercover officers has the potential to put their lives and the lives of their families in immediate danger."
On Friday Justice Cropper ruled that prosecutors had failed to prove that the officers would be endangered if their names were revealed in the case against Fabian Joseph, 40, accused last year of selling $10 bags of cocaine in Washington Square Park. Two uniformed police officers testifying at a hearing refused to name the three undercover detectives who aided in the buy-and-bust operation that led to Mr. Joseph's arrest.
And yesterday Justice Cropper filed an order to suppress Mr. Joseph's statements and physical evidence gathered by the officers; prosecutors have 30 days to respond.
"Right now we are reviewing the transcript of the hearing and applicable laws to make a determination on what is an appropriate course of action," said Magda Gandasegui, a spokeswoman for the city's Office of Special Narcotics Prosecutor, which is handling the case.
Justice Cropper has not commented on her decision, nor would a spokeswoman for the state's Office of Court Administration. But according to a transcript of Friday's hearing, the judge told a resistant officer on the stand, "In this courtroom, we are going to be using names."
Later, in a hearing on whether an undercover officer's identity should be withheld, the judge ruled "I don't see that a sufficient showing has been made in this case for me to abrogate the right of this defendant to a public trial."
At the news conference, Patrick J. Lynch, the president of the Patrolmen's Benevolent Association, which represents about 23,000 officers, said Justice Cropper's ruling set a "dangerous precedent" and gave criminals "a foot up."
He lambasted the judge for having court officers escort her to lunch on Tuesday as she tried to avoid a news photographer. "It's ironic that this judge feels she needs bodyguards to protect her from the free press and from these same drug dealers," Mr. Lynch said. "But individual police officers are not afforded the safety of police officers guarding them 24 hours a day."
Michael J. Palladino, vice president of the Detectives' Endowment Association, called for Justice Cropper's resignation. If the names of officers were made public, he said, "it would defeat the whole purpose of the undercover program."
In other boroughs, the issue of whether to reveal the names of undercover detectives has, in large part, been resolved, said Richard A. Brown, the Queens district attorney. An appellate ruling in Brooklyn in 1989 found that undercover officers could testify using their badge numbers if they showed justifiable fear for their safety, Mr. Brown said. Meanwhile, the burden of showing the importance of an officer's name to a case was shifted to the defendant. In his 11 years as district attorney, Mr. Brown said, "I have not seen an instance in which a court has not allowed an undercover to testify under his number, rather than his name."
Across the country, policies and interpretations of law on the subject vary widely. Many police departments have tried to find ways to protect their officers, like rotating the assignments of undercover detectives each year. In Los Angeles, undercover detectives routinely give their names in court, while in Reading, Pa., about 50 miles northwest of Philadelphia, detectives are permitted to wear a mask and sunglasses during some proceedings.
In Denver, undercover detectives generally reveal their identities, but if to do so would put them in imminent danger, prosecutors might consider withholding their testimony, even at the cost of the case, said Lynn Kimbrough, spokeswoman for the district attorney there.
"Then you have to make the hard decision," she said. "Is there any way to prosecute the case and keep the undercover officer's identify confidential? If not, you might have to dismiss the whole thing."