Interview: Erie County DA John Flynn on Justice Reforms

by / Apr. 18, 2018 6am EST

Since Erie County District Attorney John Flynn took office last year, criminal justice reform efforts have only intensified. Progressives and donors from a broad base have focused on district attorney offices nationwide as the wardens of America’s mass incarceration crisis. The numbers and social cost associated with mass incarceration are stark: America has five percent of the world’s population but 25 percent of its prisoners, and on almost every level of the criminal justice system, from marijuana arrests to money bail to solitary confinement, study after study show a justice system weighted against minorities.

Some hot-button reforms are currently enjoying broad support nationally. Among them are money bail reform, the strengthening of discovery laws so that defendants are given an opportunity to assess evidence pre-trial, and marijuana legalization efforts.

Flynn recognizes his office’s role in all this. Last year, he attended a conference for the Institute for Innovation in Prosecution at the John Jay College of Criminal Justice, a center which aims to “consider a new paradigm of prosecution that measures success, not by conviction rates or plea conditions, but based on community-centered standards of safety, equity, and wellness.” He also joined and attended a conference for Law Enforcement Leaders, a national organization for police chiefs and prosecutors that has a mission of “reducing crime and incarceration.”

We sat down with Flynn to discuss these and other matters last week. On all fronts, Flynn believes that his office can do both: reduce crime and incarceration, partner with police and hold them accountable, enforce the law and give someone a second chance.

I spoke with you after a debate in 2016 at the Burchfield Penney where you cited a Vera Institute study about marijuana arrest disparities. When I asked how you could address that, you said your plan was to communicate with police and ask them to ease up and “not arrest everyone on sight.” Has your office been proactive on any level as far as marijuana prosecutions go?

We have. What I’ve done here in my year and a half now is I have been in numerous meetings with the Buffalo Police Department about the LEAD program. It stands for Law Enforcement Assistance Diversion, and the Buffalo Police Department and I are trying to get more information about this program to see if it would be applicable here in the City of Buffalo. The LEAD program is potentially a program that would focus on this issue. If someone was caught with small amounts of marijuana on them, instead of arresting that person, they could perhaps get services that they may need. Just because you have a small amount of marijuana on you doesn’t mean you have a drug problem, obviously. People use recreational marijuana all the time and don’t necessarily have a drug problem, I recognize that. But the individual, instead of arresting that person, the individual could get a diversion program pre-arrest and maybe get them a GED, maybe get them on the right track. So that’s something we’re looking into.

The reality of the situation is that for almost all low-level marijuana offenses, individuals are getting an ACD: Their cases are getting dismissed. If they stay out of trouble for six months, the case goes away. The low-level marijuana cases, the reality is those cases are not being prosecuted.

But you talked about the racial disparities in marijuana arrests.

There are.

Diversion is one thing, but in your partnership with local law enforcement is there a way to address those disparities?

The Buffalo Police Department, and not just Buffalo but all the police agencies in Erie County, can be cognizant of that fact that there are disparities, especially when it comes to marijuana arrests. I think that the Buffalo Police Department, with their community policing program that they have, can and is addressing some of those issues. We have new leadership in the City of Buffalo Police Department, there’s an African-American commissioner now, and I have had numerous conversations with him.

Buffalo’s new police commissioner, Byron Lockwood, has been vocal about community policing. He said that he wants every officer to be a community police officer. He’s trying to signal some sort of shift. Obviously the homicide clearance rates are very low. Since 2016, less than 25 percent of homicides in the city have been cleared. Have you had conversations with the commissioner about community policing, in particular in its ability to address homicide rates? Is there a connection between the lack of community policing and a low homicide clearance rate?

Absolutely. Here’s a couple things about those numbers. If you take homicides and you put them into different groups, the one group is, we’ll call it drug/gang-related homicides. Put that in one group. And put all the rest in another group. All the rest, the clearance rate is over 80 percent. It’s the low numbers on the drug/gang-related homicides that are bringing that clearance rate down. Individuals are afraid when they have information about a drug/gang-related homicide, they’re afraid to come forward. And so community policing addresses to a certain extent some of those fears, I think. If we have community policing officers on the ground, they can work with members of the community to assure them that we will do what we can to protect you. We have money here at the DA’s office that we get from Albany to relocate individuals. It’s not the federal program, we can’t move people to Arizona, obviously, there are certain parameters. But we could get them a new apartment here in the area, we will get them cell phones, we could pay for the moving costs, for the moving van. There are certain things we have money for that we can do to ensure their safety. And the community policing also brings about a trust factor. A lot of people don’t want to come forward because they view police as the enemy. The trust isn’t there. So by community policing you can build that trust up, hopefully, and get more people to come forward in the city about the gang-related homicides.

Where does your office stand on cash bail reform? The state bar association has recommended an end to bail for misdemeanors and nonviolent felonies. Is this something your office is looking at?

What I have told my assistant district attorneys, not only in Buffalo City Court but in justice court, only ask for bail on the most egregious cases. So if there’s low-level misdemeanors, nonviolent felonies, and the individual and has no prior history of missing court at all, there’s no reason to make a bail recommendation at all. We can remain silent, and we do. In the [town and village] justice courts, we’re not even in the courtroom when the judge sets bail. I tell our ADAs only go into court or make a note on the file—so that the judge can see—with a bail recommendation in the most egregious cases. The bail reforms that are being talked about in Albany, we’re doing that already here in Buffalo.

Do you have a way to track that, a way to get feedback from your ADAs to make sure they’re not requesting cash bail on low-level cases?

I would hear from the defense lawyers. I would hear from the defense bar, and I would hear from the judges as well. I can see every case where bail’s put on, but at the end of the day, my attorney can say on the record, “Judge, we don’t think that bail is appropriate.” The judge can still say at the end of the day, “Well, you know what, too bad. I’m putting bail on it.” At the end the day we don’t control it, the judge controls it. I have no way to track those cases at all. I’d have to physically pull every transcript. Unfortunately there’s no way to track that. From what I’m hearing from my bureau chiefs and from speaking to attorneys is that—especially in the City of Buffalo—most of the judges on the bench there are only using bail the way it should be used: not as a punishment, but to ensure that a person comes back to court.

I’ve heard rumblings about a study on bail in Erie County. If it were to come out that there are racial disparities in Erie County, where defendants with similar crimes and similar histories get different bail amounts based on race, how would you tackle that?

The judges. I would talk to all the partners involved in that.

You would think it was the responsibility of the judges more than the ADAs, is that what you mean?

Well, I wouldn’t put all the blame on the judges, but at the end of the day you got to remember the judges are the ones who are setting the bail. If I found out that my ADAs were—on similar cases, similar set of facts on an individual’s background and history—and they were recommending bail at higher amounts for African Americans than they were on Caucasians, well then that person would be in front of me right here right now and I would be, like, “What the hell’s going on here.” But remember in a bail situation, all my office does is make a recommendation. The judge takes the recommendation or doesn’t take that recommendation. It all depends. My ADAs are only making recommendations for bail on misdemeanors or nonviolent felony offenses if there is a legitimate reason for it.

Nationally, there’s a push for discovery laws to be strengthened and enforced. I’ve heard you want open file discovery in your office?

We’re doing that, yeah.

How do you make sure that’s being provided to defense counsel?

Again, defense lawyers, I’ll hear about it. [He laughs.]  I’ll hear about it. I’ll have a defense lawyer call me up, or call my first deputy up, and say, “Hey, this ADA didn’t give me all the stuff, I’m missing stuff.” I haven’t had one phone call in a year now, since I’ve started this program. I haven’t had one phone call. I’m following up with my bureau chiefs. I’m reminding them, “Hey, make sure we’re giving the defense what they need.” That’s my philosophy and it’s working.

On police accountability: You’re not special among other DAs in the country in that you’ve received campaign donations from police unions and their allies. I saw that PBA lawyer Tom Burton gave your campaign $4,500 and the Buffalo PBA gave you a combined $3,500. At the same time your office is prosecuting Buffalo Police officer Joseph Hassett for assaulting a defendant and then for also lying about it on a police report. Don’t these two parallel facts put DAs in an awkward position: assuring accountability on one hand and maintaining a strategic partnership with law enforcement?

Not if you’re upfront about it. Not if you let them know “I am asking for your support of my candidacy because I believe I am the best candidate for district attorney. I believe that I can repair the relationships in law enforcement that I thought were severed before I got here.” I feel that I have the wisdom, quite frankly, to do what is right by all sides. I’ve said it before and I’ll say it again, you can be tough on crime and at the same time you give someone a second chance, or the third and fourth chance. I believe you can do both; I’m doing both. If I tell law enforcement, “This is my philosophy, this is who I am, if you want to support my candidacy, I welcome your support. But let me be perfectly blunt with you, if one of your officers disgraces the uniform, or doesn’t act appropriately, I will prosecute them.” They know where I’m at. They know I have zero tolerance for police brutality. Zero.

There was a CNN.com article published last summer that quoted you about Buffalo Strike Force officers Mark Hamilton and Michael Acquino. You were quoted as saying about them, “With these two guys, it’s always right.” Investigative Post reported last September a very different account. In a court decision, the now-retired Judge Thomas Franczyk called Hamilton’s testimony implausible: “In this court’s view the claimed observation of the drugs is more ‘inventive’ and than ‘preventive’ ” and “this court cannot help but think that the officers, having dealt with the defendant before, decided to play the odds that he was up to no good and would be in possession of contraband.” Do you disagree with Judge Franczyk and other observers quoted in the article?

I’m not going to say I disagree with a judge, but I can say that in my dealings with these two officers, when I made that quote, they had never done anything inappropriate that came to my attention. They had never done anything inappropriate at all. In this particular case here, I don’t remember the facts of that case at all. I can tell you this, not only with regard to these two officers, but any officers. Just because an individual is right all the time, up until a certain point, and after that point they do something wrong, I’ll hold them accountable. Plain and simple. I have no problem holding officers accountable.

About accountability in your own office: Not to malign anyone in particular, but just last month the appellate court sent back a decision on a suppression hearing because of false testimony of an officer. The appellate court found that the prosecutor either knew that the testimony was bad, or should have known. 

Yes, I’m aware of this case. That happened before I got here. I have spoken to the attorneys involved in that case; they assured me they did not know the officer’s testimony was wrong, they assured me that they did not they had no inclination at all that anything was amiss, and so I am very confident in their assessment of the situation. We have regular, continuing legal education programs here in the office, and the next CLE that we have here, we’re going to bring this case up and remind everyone that, hey, these are the things that we have to be careful of, these are the things we have to watch out for, and again if you suspect that something is amiss here when one of your officers are testifying, then you have to do what you have to do to correct that situation. That is a mantra that I am beating over and over again. I think that all my ADAs here know that they cannot allow an officer to testify untruthfully, and if I ever find one of my ADAs who willfully and knowingly permits an officer to testify untruthfully there will be severe consequences.

And we talked about Joseph Hassett writing a false statement.

Allegedly, the case is still pending! 

Right. On that though, there is some reporting that indicates the even before the election of a reform-minded DA, the Philadelphia DA’s office had a list of problem officers who couldn’t be counted on in court, or who made arrests as the result of faulty stops or searches. Does such a list exist in your office?

No. What we have is if any officer is being investigated by internal affairs or any other outside agency—take, for example, if the feds are investigating local police officers, could be Cheektowaga or anywhere—we then ensure that the entire office knows about that and we do not—to the extent we can—we do not allow those officers to testify while they’re pending an investigation. If they’re cleared by investigation, then they can come back and testify. But if anyone’s currently being investigated, then we try to do our best to not put that officer on the stand. For appearance purposes, for a number of reasons. And I’m confident that my ADAs are not going to allow any bad stop or bad search [or] the items of that bad stop or bad search to go forward in a prosecution.

Even if an investigation finds that there was some wrongdoing previously by an officer, even if the Buffalo police—and I know you don’t deal with just Buffalo Police—don’t get performance evaluations, you’re confident in that process?

I’m confident in this sense: If an internal affairs investigation is done, and I believe a thorough investigation was done and that investigation cleared the officer of any wrongdoing, then I pretty much have no choice but to abide by their own internal investigation.

What if they are not cleared of wrongdoing but they are still on the force?

Then I’m going to have a discussion with the commissioner and see why is this happening.

But there’s no list of such officers?

We would know about that.

It’s small enough that you would know about it?

Absolutely. I wouldn’t need a list of that. Those numbers are small; we’ll know about that for sure.

How can you make sure, though? How can you make sure that no one in Erie County is going to jail as a result of a dishonest officer if you don’t have that out there so that defense attorneys would know?

Oh, we would have to tell the defense lawyers. It’s part of our discovery. For all of our witnesses we have to notify the defense lawyers of any potential wrongdoing on their part. Unfortunately there are people in jail right now who are innocent. That’s a reality. My job is to ensure to the best of my ability that I prevent that from happening here in Erie County.

A lot of what I’ve asked touches on a theme confronting district attorney offices across America: ending mass incarceration. Do you see that as a goal of your administration?

You can reduce crime and reduce incarceration. You can do both; I believe that. What I try to do is, from a practical standpoint in this office, is that I try to only recommend a jail for the most serious offenses. If there’s a situation where an individual can avoid going to prison and perhaps get on the proper track, I’m going to take that. Because there’s a lot of cases I have in my office that have this model right here: You have an individual who may be on the path to being a gang member. He’s starting to hang out with the wrong crowd, he’s just starting to get into it, on that path. And the individual may be 21, 22 years old. If I put that individual in state prison for, say, two to three years for, let’s say, a gun charge, a gun crime: that 21-year-old is going to go into state prison and he’s coming out two years from now at age 24, 25, he’s coming out a gang-banger, he’s coming out a hardened criminal. So I have an individual on that path who I could perhaps save and give him probation, perhaps get him a GED and get him a job; then I have not only not put an individual in jail, but I have perhaps had an impact on this individual’s life where he has gone off that criminal path. I’m very cognizant of that, and I do that every day.