Eric Gonzalez after visiting home for elderly in Brooklyn. Photo: Linda Cheriyan for The Black Star News.
Acting King’s County District Attorney Eric Gonzalez took over the helm after his friend and mentor Ken Thompson, the first African American to be elected DA in Brooklyn died suddenly of cancer last October. Gonzalez, who helped Thompson set up the much-lauded Conviction Review Unit (CRU), seeks to win a full term in November. His first hurdle is tomorrow’s primary where other contestants for the post include: Patricia Gatling; Ama Dwimah; Vincent Gentile; Anne Swern; and Marc Fliedner. Gonzalez spoke to The Black Star News’s Milton Allimadi recently. He says he’s proud of helping set up CRU, creating an approach that treats drug-related offenses as a health-issue; re-orienting the Young Adults Court into a non-punitive approach; trying to ensure that immigrants, including those undocumented get “due process”; and, introducing transparency in dealing with alleged police brutality and other transgressions. Gonzalez joined the King’s County DA’s office as an Assistant DA in 1995. Here are excerpts:
On Creating The Conviction Review Unit at Ken Thompson’s request:
When he got elected the first thing he asked me to do is take a look a the wrongful convictions. We did not have a unit. When he came into the office there were two people under the prior administration that were looking at the cases of wrongful conviction — but they didn’t have a unit. There were like two separate people and they didn’t have any resources.
So Ken had us, me to help him set up the Conviction Review Unit and my first task was to kind of figure out what the unit should look like. So we came up with 10 people that would be full time ADAs (Assistant District Attorneys) and would no longer be handling cases. They would just be handling these re-investigations of wrongful convictions. In sort of trying to figure out how we can do this in a way that people would have confidence in the work, so we thought it was important to bring in someone from the outside. So the person we brought was Professor Ronald Sullivan from Harvard University, an African American professor very well known around the country as a defense attorney but also as an activist attorney and we asked him to consider taking a leave of absence from Harvard and coming over and helping us establish the protocol. To have these protocols were very important so that every case would be handled the same way and that the investigation would not be limited by the ability of any individual investigator. We we have procedures in place, every case follows that procedure — every case got handled the same was even though you have different investigators working on them.
So that was the important first step. Really, Ron also gave us credibility immediately because what we picked was a national expert in this issue and the system could not be questioned. And when we got Ron the next thing was to create an independent Review Panel. The beauty of the conviction review unit process is that we have an internal team, attorneys, ADA attorneys who review it, we have an outside panel of independent attorneys who have no affiliation with the office and receive no compensation and they work on reviewing the same cases. So as the DA you get two separate set of recommendations. You get a recommendation from your internal conviction review unit and you also get a recommendation from the RP (Review Panel). The part of the process that’s different in any other place is we carry the investigation in conjunction with the defense attorneys. It’s transparent so the defense attorneys can bring in witnesses to be interviewed — we’d be told where are the different stages of the investigation. Even before the recommendation would be finalized, we would get materials that had been discovered so that some of the cases we learn that documents pointed to innocence had not been turned over over, those documents were turned over to the defense attorneys and the investigations continued.
So we kind of had three partners in this. You had the DA’s office; but you also had the defense bar and you had this independent panel. The defense attorneys were also allowed to submit their reasons why this case should be vacated not only to our CRU but they can make direct presentations to the independent Review Panel. So this became the more transparent model in the country and it’s why people consider it the gold standard and the national model in how you do this work.
As far as the intake initially a lot of this started because there were allegations against this particular detective [Louis N. Scarcella]. So all of his cases immediately got funneled into the system initially. There were about 70 initially. But as we looked more, there were cases that he may not have been the lead detective but that he was involved. So all in, about 100 cases that had to be re-examined. So that gave us the first 100 cases in the unit. Every single one of his cases was taken into the unit, non was excluded. Then as we started to do the work, we got direct petitions from people who had been in jail, some of them said they did not have attorneys, so then we looked at those cases. So then we started to pull the files to see and we would look to see whether there was substantive evidence of what they were saying. If there were, then these cases were accepted. For the ones who had attorneys we would have conversations with their attorneys. So we had a person in the CRU whose entire job is to do intake. And so people always ask me ‘how many cases are still pending?’ I say ‘oh, about 100.’ They keep thinking it’s the original 100 but it’s not, the cases keep coming into the system and we continue reviewing. So far we’ve looked at over 70 cases since the beginning of CRU.
There has been a call for a blue ribbon commission to look into the reasons for wrongful convictions and I fully support that. I think it’s important to learn the lessons, into what led Brooklyn into this wrongful convictions problem. But what I think is really important is, and it needs to be emphasized for the readers out there is that Brooklyn doesn’t have a wrongful convictions problem. Brooklyn has vacated and exposed 23 wrongful convictions and there are many more to be exposed. But that problem exists throughout the criminal justice system. The issues that we found in Brooklyn exists in other counties in New York City, in New York State and across the country. And so what is very important, the lesson to be learned from Brooklyn is that as we’ve gone through – we’ve seen different problems with prosecutors; we’ve seen problems with detectives; we’ve seen problems with district attorneys and judges and so on. If we can find all that in Brooklyn and we do have a sophisticated criminal justice system here in Brooklyn, imagine what exists around the country and that is what to make of the issue; that people are made to be accountable across the country. There are many innocent people sitting in prison for crimes they didn’t commit.
What I’m heartened about is that after we started here, both the District Attorney in Los Angeles County and the [Cook County, Chicago State’s Attorney] Kim Foxx have indicated that they intend to create units. In fact professor Sullivan is working now in Chicago with their wrongful conviction unit. In fact in Brooklyn they had some people looking at wrongful conviction in the past but they did not have the dedicated unit. In Brooklyn we spend over $1 million a year on this unit and we probably spend in excess; and I’m not talking about the phone lines, computers. We are spending tremendously. We have three full time investigators that are retired detectives, they help us re-investigate.
Ken asked me to get this unit going for him and I’m very proud of the work and I’m committed to making sure that this work will continue. I won’t rest till we get through these cases and we make sure that innocent people aren’t sitting in jail. I’ve personally laid hands on some of these cases, and some of the cases I’ve vacated, and I’ve met these people face to face and I can’t do much more than apologize and kind of give them back their good name. But it’s personal to meet a person whom you believe in your heart spent the last 20 years in prison wrongfully.
On police brutality, some of the egregious cases around the country, including Eric Garner and Ramarley Graham, the 48 hours rule, and body cameras and DA’s who don’t prosecute vigorously as with the Garner case:
So this issue of police officers not being held accountable for what clearly looks like issues of abuse is a nation-wide epidemic. We’ve seen this across the country and I think there are a lot of reasons for it. What was particularly troublesome in Brooklyn and other places was there is no transparency in the process. I think this is always the tough cases and I support Governor Cuomo giving initial jurisdiction to the attorney general. That’s actually a change of position…It’s actually a change and that actually came from speaking to a lot of family members about why they believe, because I actually initially believed ultimately as the top law enforcement official that you have accountability to your people.
If people believe you’re not committed to doing the work they can mobilize and organize and remove you. When you give that to another entity, the attorney general, you lose a little bit of the ability to do that because he’s elected on a state-wide basis. And so I thought it was one step removed on the accountability issue. However I believe and now I understand, I’ve spoken to a lot of people and including my own friends growing up, I grew up in East New York, my childhood friends, Black, Latino, I spoke to the people who I think I represent fairly, the people of Brooklyn, the sense is that prosecutors work too closely, day-to-day with the police and to be able to do a fair investigation or that the public trust, believes, that someone else should do it and so I am now a supporter of this process and I’ve said it publicly in some of the forums. But that’s been a change.
And that’s part of the great thing about running for DA. I’ve spoken to people, I really got to hear their concerns and I want to make sure that my office is meeting the needs of the community and values of the community. But the transparency issue continues so where I’m going to break from some other district attorneys across the country and especially here in New York state is that I intend to be very public with the decision-making should I choose not to present cases against an officer. I’m going to issue a report about what I did. And like Ken Thompson, this is actually not a new issue, I do support, although some DAs don’t, I do support allowing some of the grand jury testimony to be made public. I think there is a way to balance the security and privacy issues… I’m going to have a dedicated team of lawyers that work on these cases. We are going to be aggressive and investigate them and pursue them and cooperate with the New York State Attorney General and we are going to make sure that when decision come out that the people of Brooklyn know how the decision was made and why it was made.
And now we have a little bit of the current crises because we’ve had a bunch of people who family members have called the police for help, they’ve had mental health issues and there’s been a tragic end. I can’t talk about these cases because they are still pending but we need to make sure that we put in processes here to try to prevent that from happening.
On the 48 hours rule which allows police officers that time before they are questioned as subjects or witnesses in cases such as the use of deadly force or alleged police brutality:
I think, obviously, it’s a labor-union issue. I think that one of the problems that we have as law enforcement is that when we speak to these officers then we can’t use anything that they say in the grand jury. And that is a particular carve-out of the law that makes it very difficult for the investigation to continue. Even with the Police Department. They have to have two teams. One team who spoke to the officer and another team that did not speak to the officer. They’re called a dirty team and a clean team.
On “True Second Chances”–correlation between poverty, unemployment, lack of education on the one hand; and crime:
I am mindful of the economic situation that many people find themselves in, especially people of color. I say this because I grew up in East New York. I moved there when I was turning 10, in 1979….I lived in the neighborhood with average income whatever it was, below the poverty line. I saw a lot of my friends, young people that I was very close with getting involved in criminal activity. Not that they were bad people but because of economics, especially in drugs, and what I’ve seen is that once they’ve been through the criminal justice system and they’ve gotten a record and opportunities for better education, even housing options, but obviously employment, completely diminishes.
Until very recently New York State had no sealing or expungement provisions so they were like wearing the Scarlet Letter. So when I’m back home in East New York, I’m in my 40s now, I still see some of my friends who got in trouble when they were 19, 18, and they never got a second chance. And I know that the reason why they found themselves in that situation is because they didn’t have any money. They didn’t sell drugs because wanted to be drug lords, they just sold narcotics because it was the only opportunity available for a lot of them, at least that’s what they perceived.
And we have this Young Adult Court, it’s 16 to 24. We started that because we couldn’t wait for them to raise the age in Albany and even that doesn’t go into effect until October. I wanted young people to be treated differently than they’d ever been treated before and having been in the system for over 20 years I feel very confident, I’ve seen, what works and what doesn’t work.
Young people come into the system and we talk about holding them accountable. But really what it was about was having them plead guilty to something and then some form of punishment. That punishment can be community service or probation or jail; but it was about punishing them for a behavior. Young Adult Court is not about punishment. Young Adult Court still holds people accountable but it’s about giving them the resources and the things that they need.
So a young person’s school, we talk about the school to prison pipeline. If they get arrested in school because they are fighting, I don’t see what giving them three days community service is going to do to improve their lives and the lives of the community. What happens is when they come into the Young Adult Court, I’m more interested in them getting anger management skills, getting peace making skills, seeing if there is a drug or a mental issue and dealing with the people. So we try to do individual mandates for these young folks and some of them just come in and need a job, and we have job training skills. We actually have a job training programming person that does that…
for a lot of young people we simply need to get them back to re-enroll in schools. But it’s also about giving them life skills and so when a person finishes Young Adult Court my goal is that they leave without a criminal conviction and that they get the therapy that they need and in particular, we’ll talk about this sort of as an aside — like people who come here with addiction issues, everyone hails these drug courts, these drug courts have prevented people from going to prison. I’m not a fan of these drug courts. To me drug courts were always about holding people accountable by making them plead guilty and then if they’re lucky, they get into the drug court and then they get their treatment. But when they come out of drug court they had a conviction. And when they come out it was always based on abstinence. So a lot of people, especially truly, true addicts, they could not complete the program and they ended up going to prison because they had pleaded to high level felonies and they end up going to prison.
Roughly it’s about 30 percent of drug court participants, they wind up going to prison. I want to treat drug addiction as a health issue. I asked the City Council to give me money so I can start a program here, like it exists in some places. When people get arrested and they are addicts instead of taking them through the court system we have the DA saying ‘I’m not going to prosecute your case if you’re willing to go and get yourself some help.’ So we are going to hire in Brooklyn for the first time ever, we are going to hire peer counselors to deal with folks who get arrested who are addicts and send them to treatment and if they go to treatment and they can make their lives better, I’m going to decline to prosecute their cases.
I’m not excusing their behavior but it’s a harm-reduction model. We are not going to incarcerate ourselves into safety by sending drug addicts to jail. That’s what led to mass incarceration in the first place. It’s one of the things soon after I took over I started to lobby for money to do this. They promised me $1 million. I will get $600,000 that’s going to be put in my budget. I still need the City Council to come in with the rest of the money. I’m going to go to foundations and raise money so we can continue this. But imagine all the money we are going to save from the criminal justice system by not incarcerating drug addicts. So I’m hoping that we can do this. It’s doable.
There is no public safety downside to this. People are so afraid and so accustomed to if you don’t arrest someone it’s supposed to lead to crime, I don’t believe that. Sending people into treatment will make us better and at the end of the day it is a health issue.
On the DA’s Office’s Plans for Dealing with Immigrants in the era of Donald Trump and Attorney General Jeff Sessions:
I think the way I’m dealing with immigrants in Brooklyn is going to be a national model. I was not the first District Attorney to have an immigration unit, but I created an immigration affairs unit. The belief behind that is that non-citizens and immigrants are often vulnerable people in society. They are often targeted for crime.
So we wanted to have a bureau that reached out to the community and let them know that we did not care where they came from or how they got here. We are here to service their needs as crime victims; but with the Trump administration craziness, with all the stuff that’s coming out of DC, with the anti-immigrants push that’s coming out, the scapegoating against non-citizens, I’ve gone a step further. I’ve hired immigration attorneys on staff. The immigration attorneys that we have are not only to protect witnesses and victims but also to provide needed advice to Assistant District Attorneys, judges and even to defense attorneys on the collateral consequences that people face when they’ve been arrested.
I’m not talking about someone who’s been arrested for rape or murder. I’m talking about the average person that may come from an immigrant background maybe be here on Green card, maybe undocumented. There are lots of implications when you are arrested and how we treat those is a reflection of how we value our immigrant population. I believe that whenever possible we should treat those cases in ways that do not implicate the immigration consequences and lead to unfair deportations.
So I took some criticism, Jeff Sessions in particular, who was on Long Island, criticized the Brooklyn DA. He did not mention me by name–Brooklyn DA. But I think that he’s clearly wrong about trying to get a mandatory minimum back on drug cases. He’s wrong, one-third of Brooklyn people come from somewhere else. Half of households in Brooklyn speak another language.
If you allow our immigrations population to be afraid to come forward to participate with the police or the court or the Assistant DAs, not only will they have no recourse as crime victims but we’ll all be a lot less safer because people who are committing crimes will go unpunished. But I also think it’s more than that. I really think it’s a civil rights issue. I think that the people who have been targeted the most in these deportations are people who come from certain countries, who look a certain way. That’s what my experience has been in Brooklyn and I think that undermines the foundations of our country, which is due process. These folks, especially when they come to court houses, ICE comes in and they are taking witnesses and victims, preventing them from getting due process. They take defendants who have not been convicted of a crime, just accused.
I think they are undermining one of our principles of the third branch of government. It’s a social justice issue but it’s also a tremendous civil rights issue. And so people may be critical, some of the criticism is that people who are undocumented are being given protection but I think that all of us benefit when we are all allowed to participate.
And at the end of the day, as a person of the law, I really believe that my job as the DA is to make sure that everyone receives fairness.
Attorney General Eric Schneiderman and myself, we had a press conference to call for ICE to get out of our court houses and to treat it as a sensitive location.
I got a phone call after that to ask me could I quantify how the chilling effect in the court house is, by people not coming and I gave some examples of people who indicated they wanted to stop prosecuting the case.
