MANHATTAN (CN) – Dogged by allegations of evidence destruction in a class action lawsuit opposing police quotas, New York City Police Commissioner Ray Kelly swore to a federal judge that he “never” used email for “substantive communication.”
But a mysterious email sent by Kelly shows that he apparently approved the transfer of a female officer who filed a formal grievance that is “directly relevant” to the case, an attorney said at a hearing on Wednesday.
It has been more than five years since East Harlem resident Sharif Stinson led several other black New Yorkers in a class action lawsuit accusing the NYPD of issuing 850,000 phony summonses to maintain an unconstitutional quota system.
Stinson’s lawyer Elinor Sutton blames the delay, in part, on the city failing to meet their discovery deadlines and destroying relevant evidence.
In July, the New York Daily News reported what the lawyers called a “stunning pattern” of spoliation, a legal term for the hiding, withholding or destruction of evidence.
Since that time, former NYPD Police Commissioner Ray Kelly swore in a court declaration under oath that it was “never my practice” to use email or text messages to discuss any “substantive communication.”
Kelly added later that he “simply did not use email” and “simply did not engage” in electronic communications because he wanted his discussions to be “un-compromisable.”
Calling these assertions “demonstrably false,” Sutton suggested a one-word reply email that Kelly fired off in September 2010 tells a different story.
While the correspondence remained redacted in court papers, Sutton revealed during the hearing that it discussed a female officer who filed a formal grievance claiming that the department retaliated against her because of her opposition to quotas.
Kelly gave a one-word response to an email with a subject line alluding to this officer’s “transfer for cause,” Sutton said.
“Yes,” he wrote, according to Sutton.
The lawyer says that this email was only discovered in a file maintained at the NYPD’s Office of Labor Relations because an employee there printed a hard copy.
City lawyer Qiana Smith-Williams replied that Stinson’s lawyers were putting too much stock in “one word: ‘yes.'”
“There is no reason this court should not accept Kelly’s representations,” she said.
Smith-Williams wrote in a letter to the court that this implication was “astounding, not to mention professionally irresponsible,” under the heading “Commissioner Kelly Did Not Commit Perjury.”
Kelly was not the only high-ranking NYPD official who claimed to shun electronic communications.
Joseph Esposito, who was then the NYPD’s chief of department, swore in a declaration that “it was never my practice to use email or text messaging to communicate about topics like summonses, enforcement activity, performance goals.”
Since Esposito acknowledged receiving but not sending emails about homicides, injured officers, and gang activity, Sutton spotted a “game” being played in the construction of this denial.
“How they’re using the word ‘use’ email is misleading, at best,” she said.
She also noted that the NYPD issued Esposito four different devices, an iPad, a BlackBerry, a Nextel phone and a beeper.
“If the NYPD and taxpayers are providing all of these devices, we hope it is for ‘use,'” Sutton quipped.
Even though the court-ordered discovery deadline of June 12 has long passed, Stinson’s lawyers allege a wide stash of evidence has not been turned over – such as text messages, monthly activity reports, and handwritten notes from CompStat meetings, where the police brass discuss trends in arrests and summonses.
“This has to end, Your Honor,” she said. “It has to.”
U.S. District Judge Robert Sweet, who sat quietly through more than an hour of arguments without asking a question, gave no indication of when and how it would conclude. Stinson’s lawyers have requested a wide range of possible sanctions, including legal fees or an instruction to jurors that they could draw an “adverse inference” from the missing documents.
Sweet reserved decision without any comment.
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