When police officers give legal advice to those they arrest and prosecute, not only that is the crime of unauthorized practice of law (that the police officers will not prosecute against themselves, naturally), but is also a violation of the defendant's constitutional right to an impartial investigator and prosecutor.
Because, of course, the "legal advice" that the police officers are giving to those they arrest is - just go ahead and plea to whatever police officers arrested them for, or for a "lesser offense", even if the original ticket was completely bogus.
And, when the arresting police officer is prosecuting the case, while also being the main material witness in the case, such prosecutions undermine the defendants' constitutional right to an impartial prosecutor.
And, while there may be at least a theoretical possibility of a disciplinary action against a lawyer-prosecutor, with resulting public discipline, disciplinary records of a police officer/ prosecutor remain sealed, as required by New York Civil Rights Law 50-a. Such records, even in case the officer is discharged and is not subject to protection of NY Civil Rights Law 50-a, are still zealously guarded by police departments, and the New York Governor Andrew Cuomo has recently stated his position that it is within the NYC Mayor's authority to withhold records of discipline against police officers from public access.
But - why is allowing arresting police officers, or police officers at all, to prosecute cases such a bad idea?
The problem is that a defendant in a criminal case (and in a traffic ticket case) has a due process right to an impartial prosecutor who is not interested in the outcome of the case.
That right surely disappears when the prosecutor is actually the arresting officer.
81 years ago, the U.S. Supreme Court decided a case, Berger v United States, where the court has outlined a "dual role" of a criminal prosecutor:
"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."
The case is about a federal prosecutor, but is equally applicable to state criminal prosecutor, since federal constitutional right of criminal defendant to an impartial criminal prosecutor remains the same, whether the defendant is prosecuted by the federal or state government.
Yet, when a police officer receives a bonus if the summons he issued "sticks" and results in a traffic ticket fine, or a criminal conviction, fine and surcharge, part of which goes to the municipality that employs the police officer, the "two-fold aim" that "guilt shall not escape or innocence suffer" goes out the door and is replaced by the principle that guilt or innocence does not matter - obtaining fines and escaping liability for the police officer/prosecutor does.
NYPD reportedly settled lawsuits against itself and its police officers for $837 million dollars in the last five years.
Moreover, in protest cases in NYC, NYPD lawyers, reportedly, are at the scene of arrest advising police officers what charges they should bring.
Then, the same lawyers for NYPD prosecute those charges - and put into their plea bargain offers a condition that, in exchange for a reduced charge, defendants must waive their right to sue the police - a direct conflict of interest.
I am very well aware of such conflicts of interest - but thought that it was a freak thing that sprang up in the neck of woods of Delaware County only - where the then-District Attorney Richard Northrup (who now has been elected the Delaware County judge) obtained from a LEGALLY BLIND criminal defendant, without reading to him the agreement he was signing without seeing it, a waiver of the right to sue himself, the judge, and all law enforcement authorities, from local to County to federal, in exchange for a "reduced" charge (A-1 felony was reduced to A-2, which was not a beneficial reduction for the defendant at all).
My husband and I raised the issue of impropriety of that "arrangement". My husband did it on an assigned criminal appeal, and I did it in a motion to vacate the plea and in a civil action challenging improper exoneration of bail that landed $17,500 of defendant's bail money in the hands of his prior defense counsel, "coincidentally", the then-Vice Chair of the New York Commission for Judicial Conduct Stephen R. Coffey.
The Chief Assistant District Attorney John Hubbard who was, without disclosure, the presiding judge's former law partner and who was opposing the criminal appeal, "privately" threatened my husband not to "burn the bridges" by raising issues of judicial misconduct in that case.
When my husband did not back down, he was disbarred, I was sanctioned for raising those same issues, and suspended without a hearing based on those sanctions.
The participants in the illegal scheme obtaining waiver of the right to bring a civil rights lawsuit: Northrup, Judge Becker, and Stephen Coffey, who was at that time, "coincidentally", the Vice-Chair of the New York State Commission for Judicial Conduct, were not disciplined.
Instead, Northrup was elevated from District Attorney to County Judge, and Becker swore him in, while being at that time retired and having no authority to swear Northrup in - making Northrup's judgeship illegitimate.
John Hubbard is now the "Acting District Attorney" and is running to be elected as District Attorney of Delaware County - unopposed. Hubbard is now appearing in front of his former boss Northrup, as a judge - and, I bet, no attorneys have filed motions to recuse, for fear that their licenses will be yanked.
And, since Hubbard is running unopposed, he will surely be elected, and rewarded with a 4-year seat of the District Attorney, the salary matching that of a Supreme Court justice, and a path to judgeship in the future, similar to Northrup's career.
After all, Hubbard did his job well - both by intimidating my husband on behalf of Becker and refusing to charge Becker with filing a forged certificate of election when I asked him to do that, and both of those jobs he did without disclosure that he was the former law partner of Judge Becker. And, after the job well done, which also included criminal prosecution of my friends and clients who sued Becker, on bogus charges, John Hubbard now deserves a boon - the seat of the District Attorney.
So, in Delaware County the waiver of a civil rights lawsuit was obtained in a felony case.
In other, more "visible" counties, and in New York City, corruption is a bit more modest - it allows police prosecutors to seek such lucrative plea bargains only in "minor offense" cases, such as traffic tickets and misdemeanors.
For example, recently in New York City, a judge, Guy Mitchell, denied challenges of two women to constitutionality of New York Police Department and its lawyers prosecuting summonses instead of the District Attorney.
The challenges were made because police officers issuing summonses are interested in the outcome of the case, and that is especially so when New York City settled over $800 million of claims against its police departments over a short period of time.
And the summonses Arminta Jeffryes and Cristina Winsor were challenging were not traffic tickets either - those were arrests during a Black Lives Matter event.
Arminta Jeffryes was arrested and kept in jail for several hours for "jaywalking", and Cristina Winsor was arrested for allegedly "stepping off the sidewalk into the street". Her summonses - for jaywalking - were issued by a police captain, a very high-ranking figure in NYPD, which begs a question whether the prosecution was politically motivated.
Here are Cristina Winsor (left) and Arminta Jeffryes (right):
The "hero" of a judge who rejected the obviously meritorious challenge to the practice of the police acting as prosecutors of their own summonses, was the former prosecutor Judge Guy Mitchell, recently sworn in by NYC Mayor DiBlasio:
Here is Judge Guy Mitchell:
An interesting political move to assign a black judge to handle arrests in "Black Lives Matter" cases.
Obviously, loyalty to the system in Judge Mitchell overcame his oath of office to uphold the U.S. Constitution - and provide to the two women who are currently prosecuted by witnesses against them their constitutional right to impartial prosecutors.