The New York Times
A detective has been accused of lying. Today, 90 convictions can be erased.
NEW YORK – For nearly two decades as a police officer and narcotics detective, Joseph Franco made thousands of arrests, many for possession and sale of drugs. Franco often worked undercover, and his testimony convicted city prosecutors. But officials who relied on Franco are questioning his accounts. After being accused of lying about drug sales the videos never showed took place, Franco was charged with perjury in Manhattan in 2019. Now the fallout from Franco’s police work is spreading: no less than 90 convictions he helped get in Brooklyn will be thrown out. out, prosecutors plan to announce Wednesday. Many more cases in other boroughs could follow – a calculation that lawyers believe seems more important than any in the city’s legal system in recent history. Sign up for The Morning New York Times newsletter On Wednesday Brooklyn District Attorney Eric Gonzalez will ask judges to dismiss the years-old drug cases in which Franco was a crucial witness. The office did not find new evidence of possible misconduct – and none of those involved remained behind bars. But Gonzalez said he had lost faith in Franco’s credibility. “We are in a moment of talking about criminal justice reform,” Gonzalez said in an interview this week. “It is clear that we could not responsibly rely on his testimony to uphold these beliefs.” The move represents one of the largest conviction reversals in the state over concerns about official misconduct and comes amid an intensified national conversation about police accountability and reducing abuse among officers. In New York City, lawmakers recently facilitated the prosecution of officers for conducting illegal searches or using excessive force. Franco was indicted in 2019 on 26 counts, including perjury and official misconduct, after investigators from the Manhattan District Attorney’s Office said he testified that he witnessed several drug purchases including footage video showed not to have taken place or that he could not have seen. He has pleaded not guilty to the charges against him. Franco’s attorney Howard Tanner said his client was presumed innocent and said he would “vigorously defend” the case in Manhattan. “So I would ask that the public hold their judgment until all the facts are heard,” Tanner added. Almost everyone whose convictions Gonzalez seeks to return have been charged with drug-related offenses, including many low-level possession offenses. The group – mostly men arrested between 2004 and 2011 – spanned generations: several were under 20 at the time of their arrest, and dozens were over 40. Gonzalez’s office was unsure of the racial breakup but believed many were black and Latino, groups that made up a disproportionate share of drug charges in the city. Most of those who faced more serious charges for selling drugs – 27 people in total – have spent six months to a year behind bars. It was not clear how often the crime represented their first or only conviction, the prosecutor’s office and public defenders said. Even those who did not serve long sentences ended up with a criminal record, which can have long-term consequences for housing and work prospects. In recent years, attention to these lasting effects has increased. In New York and elsewhere, records of some minor convictions have been wiped out – an attempt to fix what is now seen as overly aggressive policing of drug crimes in the past. But clearing records can only go a long way, say public defenders. “The damage is done at the time of arrest,” said Tina Luongo, a lawyer who heads the criminal defense practice at the Legal Aid Society. “They probably got bailed out, spent time on Rikers Island, lost their jobs, got separated from their families – no matter what, this damage has been done.” A man who has been arrested three times by Franco should have every case dropped, lawyers have said. The man, who spoke on condition of anonymity due to privacy concerns, said he had been charged with several low-level drug crimes he did not commit. Faced with the prospect of a police officer’s testimony, he pleaded guilty. The man had just graduated from high school, with a young son and a second child on the way, when he was arrested in 2005, he said. He spent several years behind bars. The man, now 35, said the halfway house was difficult and arrests continue to affect him. “I got the call that this was happening, and it was supposed to be good news,” he said. “But honestly, I don’t know if I feel better. It affected my whole way of thinking. This stuff changes you. Gonzalez said his office could not fully re-examine many of the 90 cases: Video evidence had often been lost for a long time, and potential witnesses from more than ten years ago could not be traced. charges were laid against Franco in Manhattan, it was not immediately clear that the detective had also worked in Brooklyn, Gonzalez said. The office eventually made a list of the cases in which Franco was involved and flagged those that did not. could not have been prosecuted without his accounts, he said. The concern of officers making false or misleading statements about crimes is not new. Between January 2015 and March 2018, a New York Times investigation revealed more than 25 cases in which judges or prosecutors determined that a central aspect of a New York police officer’s testimony was likely false. The fallout echoed the reassessment ation by the Brooklyn District Attorney’s Office of dozens of murder cases in which Louis Scarcella, a former homicide detective who dealt with some of the borough’s most notorious crimes, after one of its investigations been revealed. In this case, however, the office dismissed only a handful of cases and said in 2017 that Scarcella had not broken any laws. Other states have faced similar problems in recent years. In Massachusetts, for example, thousands of low-level drug cases were dropped in 2017 after prosecutors said a state chemist mishandled drug samples and returned positive results on those that she had never tested. Christopher Slobogin, director of the criminal justice program at Vanderbilt Law School, who has studied false police testimony, said the problem is most common in low-level drug cases. The police department sacked Franco, 48, last April. But discipline is often scarce. Major questions first surfaced around Franco’s New York case in the summer of 2018, when the Manhattan district attorney’s office launched a review after discovering inconsistencies between Franco’s statements and the evidence in some cases, said Danny Frost, spokesperson for the district attorney. In an episode on the Lower East Side, a man was arrested in February 2017 after Franco said he saw the man selling drugs in the lobby of a building. But prosecutors said security video showed the transaction never took place – and Franco never even entered the building. In a similar arrest four months later, Franco said he saw a woman selling drugs in the lobby of a building on Madison Street. However, he had not entered the lobby and was too far from the woman to observe a sale, prosecutors said after reviewing security footage. Both people were serving sentences in state prisons for the crimes when new evidence was discovered – and both convictions were dismissed by the Manhattan district attorney’s office. In a third case, Franco said he saw a man selling cocaine to another woman. Prosecutors said new video evidence showed the man – who was not in jail at the time but whose case was also dismissed – only opened one door for her. The three people each pleaded guilty. Prosecutors later identified another case with two arrests in which they said the evidence showed Franco had made false statements. In Brooklyn, Franco also worked undercover in narcotics, buying drugs and arresting the people who sold them. All but one of 90 people have pleaded guilty. The district attorney’s office found no evidence of innocence in its limited investigation, but Gonzalez and public defenders have noted that blameless defendants can plead guilty for a host of reasons. “People understand that when it is their word against that of an officer, the system is not designed to give them the benefit of the doubt,” said Maryanne Kaishian, senior policy advisor at Brooklyn Defender Services, who represents several cases. “A lot of people will decide it’s not worth it for them.” The actions taken by the Brooklyn district attorney’s office are stepping up pressure on district attorneys in other boroughs to reconsider Franco’s cases. Shortly after joining the department in 2000, Franco served as an officer for several years in the Bronx. The Bronx District Attorney’s Office reviewed about 150 cases in the borough Franco was involved in between 2011 and 2015 to determine whether the convictions are still reliable, Patrice O’Shaughnessy, a spokesperson for the office, said on Tuesday. This article originally appeared in The New York Times. © 2021 The New York Times Company