The suspects said the guns were planted by the police.
There were other similarities: Each gun was found in a plastic bag or a handkerchief, with no traces of the suspect’s fingerprints. Prosecutors and the police did not mention a confidential informer until months after the arrests. None of the informers have come forward, even when defense lawyers and judges have requested they appear in court.
Taken individually, the cases seem to be routine examples of differences between the police account of an arrest and that of the person arrested. But taken together, the cases — along with other gun arrests made in the precinct by these officers — suggest a pattern of questionable police conduct and tactics.
Mr. Hooper spent a year in jail awaiting trial, eventually pleading guilty and agreeing to a sentence of time served after the judge in his case called the police version of events “incredible.”
In another example, Lt. Edward Babington, one of the four officers in Mr. Herring’s case, was involved in a federal gun case that was later dismissed and led to a $115,000 settlement. In that case, a federal judge said she believed that the “officers perjured themselves.”
Debora Silberman, a public defender at Brooklyn Defender Services, has been fighting Mr. Herring’s arrest, filing a two-inch-thick motion detailing the problems with his case and the similarities to others.
On Thursday, after inquiries from The New York Times, prosecutors said that they were re-evaluating the case.
Ms. Silberman said she had always believed Mr. Herring. “Nothing in his story has ever changed,” she said.
Claims of Fabrication
She and another defense lawyer, Scott Hechinger, have suggested in court papers that a group of officers invents criminal informers, and may be motivated to make false arrests to help satisfy department goals or quotas. They also question whether the police are collecting the $1,000 rewards offered to informers from Operation Gun Stop, especially in cases where the informers never materialize.
Deputy Chief Kim Y. Royster, a spokeswoman for the Police Department, said investigators from the Internal Affairs Bureau were looking at the officers’ conduct in these cases. “Any allegations that are made in regards to the credibility” of the officers “are taken very seriously,” she said, adding that programs like Gun Stop protected the anonymity of informers, and that there were layers of oversight “to ensure that the integrity of the program is solid.”
Continue reading the main story While the individual officers declined to comment or did not respond to requests for comment, spokesmen for their unions noted that this group had removed more than 300 guns from the streets and the cases were solid.
Mr. Herring was standing outside his apartment on the afternoon of June 4, 2013, next to his bike, when, the police said, he reached into a white plastic bag and removed a gun, putting it in a black plastic bag. He tossed that bag in the bushes — the entire sequence witnessed by a plainclothes officer, the police said.
Mr. Herring said he had been running errands, making stops at C-Town, Bargain Land and a dollar store. When the police told him he was being arrested for gun possession, he said, he was shocked.
Mr. Herring, 52, had been arrested three other times, twice for drugs and once for burglary; he had not been arrested again until this gun case, records show. He said that he had not used drugs since 1997, and that he most certainly did not have a gun when he was arrested in 2013.
“I’m in front of the building,” he said, questioning the police’s account, “waving a gun like some maniac?”
Ms. Silberman first learned of potential problems with the officers’ credibility when prosecutors in Mr. Herring’s case disclosed that testimony by Detective Jean-Baptiste had been challenged by a judge in an evidence-suppression hearing on a gun case in 2013.
Ms. Silberman called the defense lawyer in that case, Jeffrey Chabrowe, and was surprised to hear how similar the cases were.
Mr. Chabrowe’s client, Eugene Moore, had been arrested on a gun possession charge by Detective Jean-Baptiste, who is now retired, and Sgt. Vassilios Aidiniou. Those officers, along with Lieutenant Babington and Officer Jean Gaillard, participated in Mr. Herring’s arrest.
Like Mr. Herring, Mr. Moore had been standing next to a bike in the afternoon, the police said, and had stored a gun in a white plastic bag underneath containers of takeout food. There was also a criminal informer involved, the police said.
Mr. Moore, who could not afford bail, spent a year in jail before an October 2013 hearing on the case. At that hearing, Detective Jean-Baptiste said the informer had told the police that “they were with someone” with a gun in a white plastic bag, on bikes, heading toward Rutland Road and Rockaway Parkway.
Police officers arrived about 20 minutes later, and — even though the suspected gunman was supposed to be bicycling — they found Mr. Moore standing at the same intersection, next to a bicycle with a white bag on the handlebars.
Detective Jean-Baptiste went on to give conflicting testimony about the informer and the circumstances of the arrest. Justice William Harrington of State Supreme Court in Brooklyn called the detective “extremely evasive” and said he did not find him “to be credible.” The judge suppressed the gun evidence, and Mr. Moore’s case was dismissed and sealed.
Ms. Silberman then found another case involving Lieutenant Babington, Detective Jean-Baptiste and Sergeant Aidiniou, handled by a colleague at Brooklyn Defender Services, Renee Seman.
In that case, Mr. Hooper was standing on the street when Detective Jean-Baptiste, in plainclothes, approached from behind, tipped off, the police said, by an informer. At that very moment, the police said, Mr. Hooper reached into his pocket, took out a gun wrapped in a red bandanna and threw it in the trash.
Prosecutors declined to bring the confidential informer in that case to court, so a hearing was held to determine if the officer’s observations sufficed as probable cause for the arrest. In that hearing, in State Supreme Court in Brooklyn, Detective Jean-Baptiste described how he had first seen a bulge in the shape of a gun in the defendant’s pocket, even as he acknowledged that he was a car-length away and that the defendant was wearing a long shirt and baggy pants.
“Supposedly this defendant doesn’t see the police coming, but elects out of nowhere to take the object out of his pants pocket and dump it in a garbage can?” Justice Guy J. Mangano said. “I find it incredible that they thought it was a gun.”
Before Justice Mangano made a decision in the case, the district attorney offered Mr. Hooper a plea deal for time served — he had spent almost a year in jail — and Mr. Hooper agreed.
Other questionable cases arose.
In 2007, federal prosecutors brought a case against Terry Cross, who was arrested after the police saw him in the backyard of a house where drug dealing was suspected. Officers found a gun in a gray plastic bag near where Mr. Cross was standing, as well as marijuana, the police said. Gun and drug charges were filed.
In that case, too, there was a confidential informer, the police said, and the defendant asked prosecutors to bring that person to court. Prosecutors opposed the motion, and later said the informer had died.
Lieutenant Babington and a partner, Victor Troiano, along with two other officers, testified in pretrial hearings in 2008. Afterward, the District Court judge, Dora L. Irizarry, said the officers’ testimony “was just incredible, and I say ‘incredible’ as a matter of law.”
“I believe these officers perjured themselves,” Judge Irizarry added. “In my view, there is a serious possibility that some evidence was fabricated by these officers.”
She granted Mr. Cross’s motion to suppress certain statements. The case was then dismissed at the prosecutors’ request. Mr. Cross brought a civil suit against the police officers and the city, which was settled in 2010 for $115,000.
In another federal gun possession case, which went to trial in 2008, prosecutors considered statements by Lieutenant Babington and Officer Troiano, who is now retired, to be “inconsistent testimony.” The defendant was acquitted after one hour of deliberations.
That same year, a judge’s decision in another gun possession case involved Lieutenant Babington and Officer Troiano. According to the police, one of them was told by an informer the name, location and description of a man with a gun. The officers arrived at the location, recovered a gun and ammunition and arrested the man. A Criminal Court judge in Brooklyn, Ruth E. Smith, ordered prosecutors to bring the informer to court; they did not.
Judge Smith found the prosecution’s efforts to get in touch with the informer insufficient and suppressed the gun and ammunition evidence. The case was dismissed and sealed.
The Legal Aid Society reviewed its files and found several gun possession cases involving at least two of the officers in which the charges had been dismissed, and even more cases in which they had been reduced to lesser offenses in plea agreements.
“When we have gun cases, they don’t go away fast,” said Justine M. Luongo, attorney-in-charge of the criminal practice of Legal Aid. “You look at the total number of dismissals for these officers and over all for the 67th Precinct, and they’re really high.”
Back in Court
Mr. Herring is scheduled to appear on Monday in State Supreme Court in Brooklyn, where Justice Dineen Riviezzo has ordered the prosecutor, Gregory D. Basso, to produce the confidential informer. A judge has already ordered Mr. Basso to do this once, and Mr. Basso has not. Justice Riviezzo noted that this case was about “credibility.”
Eric Gonzalez, the chief assistant district attorney in Brooklyn, said prosecutors would make every effort to produce the criminal informer on Monday, and if that was not possible, might reconsider pursuit of the case “because of the underlying allegations with the team of officers.”
Mr. Herring, who has been out of jail on $3,500 bail that his sister posted, said the arrest left him feeling humiliated.
“I don’t know why I’m in this situation. I thought maybe when I cleaned up my life, I’d never be back,” he said. “Why do these people want to prosecute me and have me convicted of this crime that I didn’t do? I just don’t understand it.”
source: nytimes.com By STEPHANIE CLIFFORD