Manhattan D.A.’s Big Task on Dorismond Case: Get Indictments

Since the March 16 shooting of Patrick Dorismond, the Haitian-born security guard who was killed in a Midtown scuffle with police officers, criticism has been heaped upon nearly anybody who has offered an opinion on the subject, from Mayor Giuliani to Police Commissioner Howard Safir to Senate candidate Hillary Rodham Clinton to Assembly Speaker Sheldon Silver. Motives have been questioned. Reputations have been tarnished. One name, however, has remained unmentioned and unblemished: Manhattan District Attorney Robert M. Morgenthau, whose office will handle the racially and politically charged case.

Two weeks after the shooting, as headlines screamed and talk-show hosts demanded action, the 80-year-old Mr. Morgenthau was the picture of professional distance as he discussed the case in his eighth-floor office at 1 Hogan Place. “We’re proceeding carefully and thoroughly, and with all deliberate speed,” he said, swinging his left leg back and forth. “We’re not going to be pushed into any premature decisions, and we’re not going to stall anything.” He said he was leaving matters largely to his top-level staff: assistant district attorneys Angela Albertus and Christopher Beard, their supervisor, trial division chief Nancy Ryan and a handful of investigators.

Such is Mr. Morgenthau’s stature after a quarter-century as Manhattan’s D.A. that nobody has dared question his office’s ability to handle such a sensitive and potentially explosive case. He has been there before, and, assuming he runs for an eighth four-year term in 2001, he’ll be there again. And the advocates and activists in New York know it.

“One of the reasons why I get good people in this office, I don’t interfere with investigations,” he explained. “I get posted, you know, pretty much on a daily basis, on what’s going on. I may have suggestions. But I don’t tell them how to…,” He paused, then added, “Nancy Ryan is supervising this. She, I guess without doubt, is the best homicide investigator in the country.”

In a city fraught with racial and class tensions, Mr. Morgenthau’s poker face is certainly anomalous. But Mr. Morgenthau-a former United States Attorney, World War II veteran, Democrat and father of seven-isn’t fazed by much. At least that’s the impression he gives. “None of this stuff seems to affect him the way it does the other D.A.’s,” said a staff member for another city D.A. “If it was anybody else, they might have a problem, but because it’s him, whatever happens, it won’t affect him. Because there’s just no way to accuse Morgenthau of being in bed with the Democratic Party. He’s been in office, Christ, since they wrote the Constitution.”

He certainly is no stranger to tensions between prosecutors and the police. “When I first came in, the police were making a lot of bad arrests,” he said. “In [1977], we dismissed 7,000 cases…and the police commissioner and the mayor were saying what I was doing was both illegal and immoral. But as long as they were making bad arrests, we were going to dismiss ‘em,” he said. “You know,” he added, “we prosecute a lot of police officers.”

Mr. Morgenthau’s wife, journalist Lucinda Franks, said she thinks some good may come of her husband’s critical role in the Dorismond case. “Because of this case, he could well be the catalyst for some changes in police tactics and training, because he is an objective force,” she said. “But at the same time, [he wants to] keep intact the best of those [police] operations, the ones that didn’t sweep through neighborhoods and alienate people, but very quietly made busts that cleaned up whole neighborhoods.”

Mr. Morgenthau’s office will present its findings on the Dorismond case to a grand jury, which will either indict one or more of the cops or will drop the case. Although the decision to indict technically rests in the hands of the grand jury, the strength of the prosector’s case determines whether or not an indictment is handed down. As Sol Wachtler, the former chief justice of the state Court of Appeals, famously said, a diligent prosecutor could indict a ham sandwich.

The Dorismond case is the third high-profile investigation of city police in recent months, and in the other two cases, the prosecutor in charge found himself heavily criticized. In February, Bronx District Attorney Robert Johnson was attacked when the four police officers indicted in the shooting of Amadou Diallo were acquitted by an Albany jury. Mr. Johnson’s detractors said he had mounted an overly-vigorous prosecution that served only to stoke racial tensions.

In Brooklyn, District Attorney Charles Hynes somewhat ignominiously handed over his prosecution of the cops who tortured Haitian immigrant Abner Louima to federal prosecutors, who wound up winning several convictions last summer.

A Poignant Moment

Now the spotlight falls on Mr. Morgenthau.

“I see this as particularly poignant right now, because he feels very strongly about certain cases,” said Ms. Franks. “I think he’s been sickened personally…by all of the mishaps and disasters that have happened in the last year or so surrounding the criminal justice system and the police force.”

In an indication of the confidence Mr. Morgenthau places in his top staff, he wasn’t even told about the Dorismond shooting until he arrived at the office at around 9 A.M. on March 16, about eight hours after the post-midnight shooting. In the meantime, Ms. Albertus, a nine-year veteran of the office’s trial division, had already begun to gather evidence. She was joined in short order by Christopher Beard, a 10-year assistant district attorney. At that point, the details were scant. But the fallout was almost immediate. Mr. Giuliani released Dorismond’s juvenile arrest record and brought to light more recent offenses: that he had punched his girlfriend in the face and that he was a sometime marijuana user. Demonstrators at Dorismond’s funeral threw urine-filled bottles at police guards. And Police Commissioner Safir, whose crackdown on street crimes and drugs has prompted cops to be more aggressive in making arrests, also came under fire. Some called for his resignation.

Meanwhile, Mr. Morgenthau and his team quietly proceeded with their investigation. “One case may get more publicity than another but that doesn’t change the fact that every murder case is important to a victim’s family…every case is important,” he said, refusing to discuss the Dorismond shooting any further.

Most of the two dozen judges, assistant district attorneys, journalists and defense lawyers interviewed for this story expressed confidence in Mr. Morgenthau’s fairness. “The only time that I can remember in covering him that he appeared to bow to public pressure is during the [Bernhard] Goetz case,” said journalist Mike Pearl, referring to the gunman who wounded four black youths on a subway train in 1984. One grand jury indicted Mr. Goetz on only minor gun charges, accepting his argument that he felt threatened and acted in self-defense. Citing new evidence, Mr. Morgenthau presented the case to a second grand jury, which duly indicted Mr. Goetz on more serious charges. “He put the case before a second grand jury and mounted a trial, a pointless trial, which had Goetz acquitted anyway,” noted Mr. Pearl, who at the time covered the case for the New York Post .

Other observers offered unconditional praise. “Bob Morgenthau is absolutely, positively, not influenced by politics,” said Michael Cherkasky, who was the District Attorney’s chief of investigations until 1993. Even with politically charged cases, Mr. Cherkasky added, Mr. Morgenthau’s prosecutors never ask “what the reaction’s going to be. People don’t believe that, but it’s absolutely true,” he said.

“It was quite a nerve-racking experience to have cases in which my assistants and I would have our noses to the grindstone and the press and public are roiling around because [the cases] involved very hotly debated issues,” said Linda Fairstein, the sex-crimes bureau chief and an assistant district attorney for 28 years. “[And] his advice to me…was literally to look at me in the eye and say, ‘Do the right thing.’ And the thing that’s kept me here this long…is that I work for someone in whom I have the ultimate trust.”

“Bob is not going to lay down for the New York City police, but at the same time, he’s not going to call it against the police officer because that might satisfy some kind of public desire,” said Charles Stillman, a defense lawyer who worked under Mr. Morgenthau at the U.S. Attorney’s office in Manhattan until 1966. “He has nothing to gain from the way he calls his cases, and you’re talking to someone who disagrees with him.”

What has kept Mr. Morgenthau so high above the political fray is, ironically enough, his political savvy. Take, for example, his record on capital punishment. Both Mr. Morgenthau and his counterpart in the Bronx, Mr. Johnson, are opposed to the death penalty. In 1995, when the State Legislature and Governor Pataki reinstated capital punishment in New York, Mr. Johnson said he would never ask for the death penalty in prosecuting capital crimes. He came under intense attack from Republicans, including the Governor, who talked about superseding Mr. Johnson’s authority.

Diplomatic Approach

Meanwhile Mr. Morgenthau took a more diplomatic approach. “Morgenthau…would not come out and say he’s not going to request the death penalty for anybody,” said Mr. Pearl. “He said, you know, ‘We’ll take each case by its own merits,’ and the 10 or 15 cases they’ve had so far, none of them are going for the death penalty.”

Asked about capital punishment, Mr. Morgenthau reasserted his position. “What people forget is that under the statute, there’s an option. It’s at our discretion,” he said. “You can convict somebody…and you can seek the death penalty. Or 15, 20, 25 [years] to life. Also, there’s a popular misconception about how broad the statute is. If three people break into an apartment and shoot three people, the death penalty isn’t going to apply to anybody unless you know which person killed which person. You can only prosecute the shooter.”

“I’ve said I’m opposed to it on moral grounds,” he added. “And also, it’s ineffective, it’s expensive, it doesn’t deter…I think that people are beginning to understand that, No. 1, it doesn’t reduce crime, and that a lot of mistakes are made. You know, am I prosecuting the wrong guy? And maybe he’s going to burn, you know?”

Mr. Morgenthau’s confident, sometimes droning tone gives him a modestly regal air. In his office there are stacks upon stacks of papers, glassed-in cabinets filled with books, pictures of “the boss” (as he is known in law-enforcement circles) with various prosecutorial teams, World War II memorabilia, including an Iwo Jima poster, and a Motorola Star-Tac cellular phone powering up in the corner. Aside from a car alarm outside, the only sounds that penetrated his office during a recent interview were the clack-clack of a typewriter-yes, they’re still being used, at least in this veteran’s office-and the occasional high-pitched tone emitted by Mr. Morgenthau’s hearing aid.

He was asked if his prosecutors sympathize with the police, who, after all, essentially play for the same team. “The cops may think they’re the best investigators and we may think we’re the best lawyers,” he said. “Unless we’re together, we’re not going to be successful. But we don’t hesitate to do this job.”