Beaten, Abused, Arrested? City Lawyer Pays for Brutality

Gail Donoghue knows brutality. In an office on Church Street, not far from where the Rev. Al Sharpton has been marshaling demonstrators every day against Mayor Giuliani and his Police Department, Ms. Donoghue reads lawsuits filed by citizens who have had the misfortune to be bumped, belittled, bashed or blasted by a police officer. Then, at a desk with a tiny Betty Boop statue resting alongside, she writes down a number. If the plaintiff’s unjustified 30-hour stay in the pen included a bologna sandwich and few surprises, she’ll suggest a standard $15,000 settlement payout. If there was some jail cell horror–sexually leering comments, subjection to an anti-Semitic audiotape–she may offer something closer to $75,000.

All told, police misconduct settlements cost the city some $28 million a year. As the city lawyer who oversees the police and prison guard brutality lawsuits that make it into Federal court each year, she or her deputies can settle or try to convince a jury that the police had good reason for doing whatever they did.

And she must do it quickly. In the last year, a courthouse crowd broader than the one gathered each day outside 1 Police Plaza have complained about the slow grind of justice in brutality cases. Judges even have begun to sanction city lawyers for delays.

Ms. Donoghue, a Bensonhurst, Brooklyn, native and Pace University School of Law graduate who has been a city lawyer for 12 years, is the supposed solution. She was appointed six months ago to commandeer a new division in the city Law Department, Special Federal Litigation, that will work exclusively on these lawsuits. Michael Hess, now the city’s Corporation Counsel, arrived in the 680-lawyer department a year ago to tales of how the Police Department endlessly stonewalls on providing arrest reports and other records. “Not only the lawyers, but the judges spoke to me about producing these documents more quickly,” Mr. Hess recalled. So the big test of how Ms. Donoghue does her new job is whether she can speed the city’s defense up.

Most of the cases that come through her office are not Amadou Diallos or Abner Louimas. They are more like the case of Errol Flynn, then a 27-year-old from Middle Village, Queens, who had an encounter with police in August of 1992. Standing on a street corner near his home with some friends, he was approached by police who noticed a beer bottle on the ground. One cop instructed Mr. Flynn to pick it up. It wasn’t his bottle. “No way. Who knows who touched that thing?” Mr. Flynn responded, according to his lawyer, Bruce Cheriff.

Mr. Flynn didn’t have any identification showing his christened name, and the officer took him to be just another smart aleck. He frisked him and took him to the station house, although he had told them he had an ID at his home a few blocks away. At the station house, the officers threw him in a room and locked him to a pole for 45 minutes. He was released with both a bruised wrist and a ticket for having an open beer bottle in public, which was later dismissed. Later, the city settled Mr. Flynn’s suit for $10,000. A third of the payout went to Mr. Cheriff. Mr. Flynn later moved out of the city and back to his Caribbean birthplace, Jamaica.

“The truly, truly valid claims are few and far between,” Ms. Donoghue told N.Y. Law. “That’s my own personal take and my experience in the cases I’ve litigated. Often there’s an encounter with the police and it’s not pleasant, but there’s not been any constitutional violations. Some cases do look good on first blush. But then you check out the details and conduct further investigation and the cases fall apart. Unfortunately, we can’t dedicate those resources to more cases.”

Joel Berger used to work in the corporation counsel’s office. He is now a plaintiffs attorney with three misconduct cases in Ms. Donoghue’s division. “That’s a horrible attitude to have,” he said. “‘Unpleasant’ means only words are exchanged. It’s not an unpleasant experience when people are thrown up against the wall. It’s not an unpleasant encounter when a person spends a few hours in detention for no reason. That’s not unpleasant; that’s a Fourth Amendment violation.”

It was one of Mr. Berger’s cases that prompted U.S. District Court Judge John Martin to deliver the Law Department its most stinging attack. Sitting on the case last September of a 60-year-old retired nurse from Roosevelt Island, Edna Louise James, Judge Martin waited for city lawyers to explain why, over four months, they couldn’t produce documents about the detective who apparently karate-chopped Ms. James to subdue her during a confrontation; nor about those who strip-searched her; nor about those who handcuffed her to a hospital bed.

Judge Martin, a former U.S. attorney, first demanded that the Police Department and Department of Correction officials explain themselves in an affidavit. When they didn’t send a response, the fed-up jurist excoriated the two city departments for showing “utter disregard” and a “cavalier attitude” in responding to discovery requests. “The problem,” he wrote, “has its roots in an attitude prevalent in those departments that obtaining information responsive to civil discovery demands is of the lowest priority.” Without being asked by Mr. Berger, Judge Martin ordered the city to pay the lawyer $9,800 for wasting his time, and $10,000 of taxpayers’ money as sanctions for not even making an effort to explain. “You don’t tell the Federal Court to go to hell,” he growled from the bench.

Part of the problem for years was that police and correctional officer misconduct cases were handled by some of the greenest attorneys, many of whom had little or no experience in the Federal courts.

Now Ms. Donoghue has her division, and what’s happened? Most of the veteran attorneys who had handled police cases, the ones who could sort out the deserving from the nuisances, declined to follow her. So Ms. Donoghue has had to recruit. She’s had some luck wooing a few experienced lawyers out of the offices of district attorneys and the attorney general, but most of her 14 staff assistants are young. “They’re one, less than one, two years out of law school,” said Earl Ward, a plaintiffs’ attorney who is also on the board of the Civilian Complaint Review Board. “When the city has more seasoned practitioners, that says these cases are serious and we’re going to treat them seriously.”

Veteran staffing may be on the way. Ms. Donoghue has permission and a budget to bring in another 14 lawyers, and she is confident that she won’t have problems getting quality public-minded lawyers–she can lure them with the chance to work in the Federal courts, with extra paralegals, and on cases that, unlike zoning or tax certiorari cases, are “alive” and “gritty.”

The big question is whether they can induce the Police Department to cough up records. So far, Ms. Donoghue’s supervision has produced results, said one of her chief opponents, veteran plaintiffs’ attorney James Meyerson. “It’s a much more tenacious, tight litigation unit, like something at a Wall Street firm. The bad part of it,” he said, “is that now they’re more involved and adopt the typical defense approach of delay, of adhering to rules for rules’ sake rather than moving a matter ahead expeditiously.”

Mr. Berger also complained of continued delays. In two of the three cases pending in Ms. Donoghue’s new division, city lawyers have asked for two-month extensions to respond. In one case, they have not yet produced the names of the accused officers. “There isn’t a case I’m aware of where that isn’t happening constantly,” said plaintiffs’ attorney Matthew Brinckerhoff. “Their m.o. is to not do anything until they’re in a box and the judge is about to go off on them.”

Ms. Donoghue said the delays are not phony. “It’s being worked on, but sometimes we may just need the time to do things right,” she said. “Always when we ask for extensions, judges always give them. Many plaintiffs’ attorneys are reasonable about giving them, too, because they know we need the time to do our work.”

As Judge Martin pointed out, the delay problem is really inside the Police Department. “We are always looking at it, and we are looking at it now,” said Deborah Zoland, the Police Department’s assistant deputy commissioner for legal matters. “It’s the kind of thing that needs attention.”

Ms. Donoghue apparently is convinced they’re trying. At a meeting with the leading Police Department lawyers earlier this month, she came away with a better understanding of just how overloaded the police lawyers are. “We’ll be a lot more temperate in our demands in the future, I think,” Ms. Donoghue said. “We need them to cooperate with us.”

That does not bode well for plaintiffs and their attorneys looking for a faster resolution of their cases. On the other hand, if you were defending the city against brutality cases, this might not be the time you want to rush cases before a jury. Ms. Donoghue disagrees. On March 18, in the heat of Mr. Sharpton’s staged protests outside Police Headquarters, the city managed to win a false arrest case, she said. “It’s leading me to think that people are a lot more open-minded than we figure,” she said.

Friend of Monica, Esq.

Jonathan Marshall is general counsel for the Shooting Gallery, a film production company–one entertainment lawyer in a city of entertainment lawyers. But then he accompanied Monica Lewinsky to the Vanity Fair Oscar party. Suddenly the man who had arrived in Manhattan two years ago, after practicing for five years at the Los Angeles entertainment powerhouse Loeb & Loeb, was a genuine boldface New Yorker.

This is causing problems for Jonathan Marshall, a longtime partner at Pennie & Edmonds, where he practices patent law. He and his secretary have been deluged by calls from the media, including Inside Edition , the Daily News and, repeatedly, The Washington Post .

Some of the inquiries have come via internal e-mail from wise guys at the firm with perhaps a bit too much time on their hands. And some have come from clients. The Hewlett-Packard Company executives he was entertaining on the night Ms. Lewinsky wowed Hollywood tried a little extortion involving Mr. Marshall’s wife of 35 years and a phone call about where he really was on March 21. Being a smart lawyer, Mr. Marshall surely counseled them that Ms. Lewinsky had declared herself no longer interested in married men.

Mr. Marshall the patent litigator has yet to speak to Mr. Marshall the entertainment lawyer. “I’m sure he’s a nice young fellow,” said the patent guy. As for the media: “I think all of this interest is unnatural, and people ought to get a life. She’s one of the great victims of our time. My heart goes out to her father.”

You can reach N.Y. Law by e-mail at mfleischer@observer.com.

Beaten, Abused, Arrested? City Lawyer Pays for Brutality