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July 2, 2020

Between Two Prosecutors: Part II (with Cyrus Vance Jr.)

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On this week’s episode of Stay Tuned with Preet, “Between Two Prosecutors: Part II,” Preet continues his discussion with Manhattan District Attorney Cyrus Vance Jr. Vance first returns for an update about the movement against police brutality that has grown out of the killing of George Floyd and the reforms that his office is considering. Then, we offer the second half of Preet and Vance’s conversation from late May, which focuses on Vance’s sex crimes prosecutions, on the relationship between COVID and racialized policing, and on the prospect of closing Riker’s Island.

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REFERENCES & SUPPLEMENTAL MATERIALS

UPDATE:

PROTEST PROSECUTIONS 

  • “D.A. Vance Declines to Prosecute Protest Arrests,” ManhattanDA.org, 6/5/2020
  •  “Amid NYC Violence, Manhattan DA Asks Gov. Cuomo To Use Emergency Powers To Enable Judges To Hold Looters On Bail,” CBS, 6/3/20
  • Molly Crane-Newman, “Manhattan DA won’t prosecute protesters amid mass NYC arrests, commends New Yorkers exercising civil rights at George Floyd demonstrations,” New York Daily News, 6/5/2020
  • Jeff Coltin, “Challengers blast Vance’s push to jail looters,” City and State NY, 6/9/20
  • William McGurn, “Cy Vance’s Broken Window,” Wall Street Journal, 6/15/2020

RELATIONSHIP WITH NYPD

  • Jen Ransom, “After Rift Over Protests, N.Y.P.D. Pulls Out of Prosecutors’ Offices,” The New York Times, 6/15/20
  • “Police commissioner weighs in on clash with protesters, NYPD budget cuts,” PIX11, 6/30/2020

POLICE REFORMS

  • Statement by Manhattan D.A. Cyrus Vance, Jr. on Repealing Civil Rights Law 50-A, ManhattanDA.org, 6/1/2020
  • Statement from D.A. Vance, D.A. Clark, D.A. Gonzalez, and D.A. Katz Regarding Chokeholds and Other Restraining Techniques, ManhattanDA.org, 6/9/2020
  • Christopher Robbins, “New York State Legislature Votes To Repeal Law 50-A That Shields Police From Scrutiny,” Gothamist, 6/9/2020
  • Dana Rubinstein and Jeffery C. Mays, “Nearly $1 Billion Is Shifted From Police in Budget That Pleases No One,” New York Times, 6/30/2020

CRIME IN NEW YORK

  • Mark Morales and Eric Levenson, “New York City crime stats show spike in burglaries and murders so far this year,” CNN, 6/16/2020
  • Tina Moore, “NYPD commish, chief of department blame shooting spike on bail reform, coronavirus, protests,” New York Post, 6/30/2020

PART II OF ORIGINAL INTERVIEW:

SEX CRIMES CASES

  • Michael Levenson, “Evelyn Yang, Wife of Andrew Yang, Says She Was Assaulted by Her Gynecologist,” New York Times, 1/16/2020
  • Jan Ransom, “Gynecologist Spared Prison in ’16 Sex-Crime Plea Faces New Inquiry,” New York Times, 2/20/2020
  • Jonathan Dienst and Tom Shea, “Manhattan DA Cy Vance: Weinstein Guilty Verdict Could Change Sex Crime Trials Forever,” NBC News, 2/25/2020

BROKEN WINDOWS POLICING

  • Darcel D. Clark, Eric Gonzalez, Melinda Katz, Michael E. McMahon, Anthony A. Scarpino Jr., Madeline Singas and Cyrus R. Vance Jr., “Why We Need to Reform New York’s Criminal Justice Reforms,” New York Times, 2/25/2020
  • “Race and Prosecution in Manhattan,” Vera Institute of Justice, 7/2014
  • “N.Y.C. Votes to Close Rikers. Now Comes the Hard Part,” New York Times, 10/17/2019
  • Anna Flagg and Ashley Nerbovig, “Subway Policing in New York City Still Has A Race Problem,” Marshall Project, 9/12/2018
  • J. David Goodman, “Turnstile Jumping Pits de Blasio Against Police Reformers,” New York Times, 2/7/2018
  • Jesse McKinley, “The ‘Gravity Knife’ Led to Thousands of Questionable Arrests. Now It’s Legal,” New York Times, 5/31/2019

RIKER’S ISLAND

  • Asher Stockler, “Rikers Island Chief Physician Warns Coronavirus Cases ‘Growing Quickly’ in NYC Jails, Says 20 Percent Will Need Hospitalization,” Newsweek, 3/31/2020
  • Tom Robbins, “The People vs. Cy Vance,” Marshall Project, 4/29/2018

INVESTIGATING TRUMP

  • Richard Lempert, “Waiting for Trump’s Tax Returns: Don’t Hold Your Breath,” Brookings Institute, 6/29/2020
  • Steve Vladeck, “President Trump’s Taxes Reach the Supreme Court, SCOTUSBlog, 11/15/2019

 

Preet Bharara:              From CAFE, welcome to Stay Tuned. I’m Preet Bharara.

Cyrus Vance Jr.:            Police have been asked to do things historically that probably they were not necessarily the best individuals to do it, whether it’s dealing with homeless, whether it’s dealing with mental illness, on the streets, traffic enforcement, school officers, and the like. My observation is, as a society, we haven’t funded enough the public service aspect to provide support in those areas.

Preet Bharara:              That’s Cyrus Vance Jr.He served as the Manhattan district attorney since 2010. He first joined me on Stay Tuned a few weeks ago. Today, we bring you part two of that conversation. In part one of the episode, I spoke with Vance about the choices he’s made throughout his tenure and his philosophy of prosecution. Some of what you’ll hear this week was recorded on May 26th. I also sat down with Vance just yesterday to get his reaction to the protests against racism and police brutality, calls to reform or defund the police, and his approach to the many arrests made during the protests over the last several weeks.

Speaker 3:                    Stay Tuned. There’s more coming up right after this.

Preet Bharara:              Cyrus Vance, welcome back to the show.

Cyrus Vance Jr.:            Thank you, Preet.

Preet Bharara:              When we initially spoke for the podcast, it was way back on May 26th, one day after the killing of George Floyd, and a lot has happened since then. We’re recording this now on the morning of July 1st, and it made sense for you to come back and talk about how the world has changed, how the world may change in light of the protests. And so I guess my first question to you, which I didn’t get to ask you before, because it hadn’t happened yet, what are your overall reactions to the Black Lives Matter protests and how New York City in particular responded to them?

Cyrus Vance Jr.:            Well, I think the protests themselves in my view are a understandable and important expression of sadness and anger over, not just Mr. Floyd’s killing, but over many deaths in the course of many, many years. And it was the reason why in making assessments on our office, that we decided not to charge protesting individuals who were violating some curfew or ordered to disperse with unlawful assembly or disorderly conduct, because it struck us that we need to be very careful how we use our prosecution authority, and we want to, as we try to in our office, not bring people into the criminal justice system where it’s either inappropriate or it can send a message that can actually make things worse on the streets.

I would distinguish that, Preet, from the very serious misconduct, in my view, of looting into stores and destruction of property and assaults on police officers, one of which is being charged federally, I think, in the Eastern District, or assaults on a police vehicle. So I feel that at this moment in time, there is going to be, in our office, it’s a moment for us to evaluate not just how we responded and how we respond to cases and potential charges riding out of the protest themselves, but also an opportunity for me and us in our office to act quickly and evaluate what policy, what personnel and what charging decisions we need to revisit as we operate the office going forward.

Preet Bharara:              Do you have a sense off the top of your head of how many people were arrested by police during the protests, at least in your borough, Manhattan, that you have chosen not to prosecute?

Cyrus Vance Jr.:            Well, let me tell you overall, there are 389 burglary cases, and those are obviously breaking into commercial shops, as we saw on TV. And some of the conduct was shocking, some organized individuals coming in and clearing out a whole store and then driving away. 389 burglary cases, assaults on members of the police service were 22 cases. And we have to date done a careful review and dismissed 169 cases that came in by way of arrest, and we will be making additional evaluations on a case by case basis as we go forward.

Preet Bharara:              And say again, where you put on the spectrum the defacing of buildings and monuments and that sort of thing, as compared to looting and assaults on police officers?

Cyrus Vance Jr.:            We, for example, have prosecuted a case of the facing St. Patrick’s cathedral. We did not immediately make an arrest, which upset some, but it was in furtherance of making sure that we actually got the individuals who tagged or defaced the cathedral, and that we made sure that we were building a case that we felt was strong and appropriate. We don’t tolerate, and I don’t think publicly we should tolerate that defacement either. That said, I understand that there’s a political expression and real anger that we’re seeing on the streets with regard to individuals represented in those monuments and what they represent.

Preet Bharara:              Has some of this been difficult to negotiate with the police department? If you can say, and we talked about some of this last time, how the relationship between your office, the DA’s offices generally, and the police department, has it been strained over this kind of decision making over who to arrest and who not to arrest, and who to prosecutor who not to prosecute?

Cyrus Vance Jr.:            I think that these kinds of tensions are always in the job between a prosecutor’s office that is acting independently and a police department that is pursuing its mission. And the reason there’s tension, as we talked about last time, is because I have a different job and I have a different set of resources and a different set of rules that apply to whether we can bring a case and sustain our proof than police officers have in making an arrest. There have been times of strain. But I have been in touch with the police commissioner, I have been in touch with Chief Monahan.

We have spoken a number of times, and there are areas where I think we can do a better job talking through things where there are disagreements and trying to be clear with each other about what we are doing and why. And there are times that we are going to disagree, and that I think is actually the justice system working in a healthy way, not necessarily in a negative way. Because as we talked about, I think last time, Preet, over the last five to 10 years, I think one of the frustrations that police have felt is where prosecutors offices like ours are making independent criminal justice charging decisions and policy decisions that may run counter to what the police would like to have happened, but that I think is an evolution that is normal.

Preet Bharara:              Separate and apart from prosecutions relating to the protests and arrests relating to the protests, is crime otherwise in New York City up over the last month?

Cyrus Vance Jr.:            Over the last month and a half or so, we have had an increase in homicides in Manhattan, what I would say is a significant increase, and that is of great concern to our office and to the police.

Preet Bharara:              Any theories? Do you have any theories on that?

Cyrus Vance Jr.:            I think the theory that is being discussed by the police department among others is that the change in bail laws have resulted in essentially in folks who are not being detained and who otherwise might be and are committing crimes when they are not detained. In Manhattan, as of a couple of weeks ago, we reduced our Rikers Island population because of the COVID-19 crisis and our concern about the spread of the disease in Rikers Island by 45% between March and several weeks ago. So a significant decrease, and I think for good reason. 11% of those who were released from Rikers Island on Manhattan cases have re-offended, I don’t have a breakdown of exactly what.

Now, you could look at that 11% as a very negative factor, but you could also look at it as 89% of the folks who were released didn’t re-offend. None of this should be treated casually or frivolously, but I do think we are at a point where there is anger, there is probably a disconnect between law enforcement and communities. And I’m always concerned, as I know you are, about access to guns on New York City streets.

Preet Bharara:              Is there any possibility that in the current climate, some members of the police department are being less aggressive and are stepping back a bit or no?

Cyrus Vance Jr.:            Certainly, I think that’s a possibility, I’m not sure that I’m in a position to say that has happened or not. I believe that the commissioner would say, no that’s not happening. And as I’m not out observing all the police, I’m really not in a position to say. I will say that the number of arrests in Manhattan actually has been significant over the last month and a half. So it’s not a situation where, in April, the arrests went way down. In May, arrests returned to significant levels and, Preet, on significant crimes. We’re talking about shootings, sexual assaults, stabbings. I don’t have an answer for why this is happening, except for just speculation, which I think is what we have to not do is guess and speculate. But there have been significant number of arrests in Manhattan, and we are dealing with them.

Preet Bharara:              One of the things that people have been talking about in a very, I think, deliberate and earnest way is reform. A few days after we last spoke at the end of May, you put out a statement in light of the protests, and a strong statement, in which you said Black Lives Matter and the use of excessive force by police in this country must end. And then you said a number of other things, and you said you supported the repeal of something called Civil Rights Law 50-a, and laws which confer a qualified immunity in cases of excessive force. First, explain to folks not from New York what Civil Rights Law 50-a is, and why that was properly repealed.

Cyrus Vance Jr.:            50-a was a New York law that provided confidentiality of police personnel records, the contents of which, from at least a prosecutor’s perspective, are often relevant for us to understand when we are proceeding with a case and we need to know who our witnesses are and what the background of those witnesses is as well. And we were disagreeing with the police department, although we were actually exempted under 50-a to have access to those material, we had disagreements with the police department over several years about the timing of that access to us. The law now as amended would give the public access to some of these personnel records, and disciplinary records is probably were accurately put, while still, I believe shielding from the public aspects of a police officer’s personnel records that are not a matter of concern with regard to honesty or integrity.

Preet Bharara:              And that’s the case in most States, it brings New York in line with most places?

Cyrus Vance Jr.:            Honestly, I think it’s probably at various forums in a lot of states. My understanding, New York in 50-a was a very strong and strict law. And the repeal of that law ultimately I think is positive, it’s why we supported it. And I think in the long run, I think it will aid in having information that should be available to the public, and also giving the public a sense of confidence of who is representing them as police officers in the street.

Preet Bharara:              And qualified immunity, are you supportive of getting rid of that as a legal defense in all cases or certain kinds of cases, or what’s your position?

Cyrus Vance Jr.:            I think that officers acting in furtherance in of their job, obviously, they need to be supported and feel that they are protected when they’re out doing their job. At the end of the day, I think officers need to know that the law will protect them if they are doing their job and doing it appropriately, and if they are not, that they don’t get essentially unwarranted immunity for misconduct.

Preet Bharara:              There’s some other things you and other district attorneys have come out and supported banning certain choke holds altogether. Is that overdue?

Cyrus Vance Jr.:            I think it is overdue. And I think the state law is the appropriate response. And what I would say, Preet, in terms of other things that are going on, obviously the laws were passed or budgets were settled that are reducing the police officer’s budget. My observation around that is that it’s a situation of the consent of the governed. The police have been asked to do things historically that probably they were not necessarily the best individuals to do it, whether it’s dealing with homeless, whether it’s dealing with mental illness, on the streets, traffic enforcement, school officers, and the like.

And my observation is, as a society, we haven’t funded enough the public service aspect to provide support in those areas. And I think you and I actually talked about this perhaps in the first discussion. The mental health needs are enormous, and we haven’t funded that enough as a public responsibility, and therefore the police have had to step in or been told to step in and take care of those issues. And I think ultimately, my hope is that as the public is concerned about areas where police should not necessarily be doing… is not a central police services, that we take the time to fund adequately those services.

You and I work in our foreign bank cases side-by-side, returning to the federal government and so the city and state of New York literally billions of dollars over the years you and I worked together. But what we found, and some of those monies came back to our office by virtue of forfeiture laws, and we made a very conscious decision in our office, not just to use those dollars to support, for example, police technology or crime prevention in niche communities, but we invested money directly with our authority in crime prevention strategies to help families criminally justice involved, or at risk youth, survivors and victims of crime, as well as returning offenders from prison, investing in programs that would help those individuals.

So I think there is a model, and ours is certainly one, how we can use public funds to invest in safer communities, safer families, supporting returning offenders. There’s a way to invest these dollars that I think the communities would support and that ultimately make us safer and make sense.

Preet Bharara:              Yeah, I know you’ve spent a lot of time thinking about those things and had a lot of opportunity to spend public funds in those ways. I meant to ask you when we were talking about the protests, we talked about which protesters would or would not be prosecuted. Are there police officers that your office is prosecuting in connection with misconduct during the protests?

Cyrus Vance Jr.:            There are investigations which are ongoing and in process. We obviously, as we should where police violence, unwarranted, is involved, it needs to be investigated and where appropriate prosecuted. We have a systemic approach to that now in the office both out of our official corruption unit as well as information that may come into us, whether it involves cases where individuals are themselves charged for burglary or other offenses, for example, and information comes to us that may alleged police violence or police misconduct, as well as an exhaustive review of social media over the last several months. So it’s something that we have a system and a structure in place in the office, I think, to responsibly and broadly look at and manage these issues, and they are part of what we’ll be looking at as we look back on the unrest of the last month and a half.

Preet Bharara:              Before I let you go, I wonder where you think we go from here. If we have a conversation a year from now, what’s your thought on the kinds of things that will have actually changed as opposed to just being talked about, both in New York and in the country? I’m wondering if you think this is a real inflection point, or not.

Cyrus Vance Jr.:            I do think it’s a real inflection point. I will say that, and permit me if I’m being too parochial, but the impact of Mr. Floyd’s killing was obviously enormous and powerful in the country. It was also enormous and powerful in this office. And there was, and there is anger, upset, pain among the professional staff here, and the attorneys in this office, and a questioning and a conversation very much with me about this office and about how we will use this moment in time to evaluate our internal policies and practices, and as I said, some of our professional staffing, as well as programs in the community. So I think it’s a big inflection point, and it’s a big inflection point in this office.

And I think more broadly, Preet, what we experienced in this office, I believe is probably being experienced in prosecutor’s offices all over the country.

Preet Bharara:              And in every kind of office. I mean, my friends at law firms and at media organizations, it’s something that I think is affecting offices that are outside the realm of law enforcement as well.

Cyrus Vance Jr.:            Yeah, I felt that and on my team here felt that, appreciated this was an inflection point and that we needed internally to move quickly to make, as I said, some significant changes around personnel, structure and program, and to seize this moment to actually move forward and to demonstrate and to show that we are listening and there is change that needs to happen.

Preet Bharara:              Cyrus Vance, district attorney of Manhattan, thank you for joining me again to talk about some of the things that have been going on. I really appreciate your time. You’ve spent a lot of time with us, I appreciate you making efforts to come back and speak.

Cyrus Vance Jr.:            As colleagues for eight years, the last couple of hours talking with you has been a pleasure, and it was a real pleasure being your professional colleague for the time we had.

Preet Bharara:              Thank you, sir. Last chance to announce here on this show whether you are running for reelection or not.

Cyrus Vance Jr.:            Hold time.

Preet Bharara:              You’re declining?

Cyrus Vance Jr.:            Stay tuned, as you say,

Preet Bharara:              Stay tuned indeed. Cyrus Vance, thanks again.

Cyrus Vance Jr.:            Take care.

Preet Bharara:              Hear more of my conversation in just a moment.

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This part of my conversation with the district attorney was recorded in late May. It picks up with our discussion of Vance’s sex crime prosecutions, which have attracted controversy over the years. If you haven’t already, you can find the link to listen to part one of the episode, which aired on May 28th in the show notes or the Stay Tuned archive.

I’m going about ask that one more of these cases, and then we’ll go on to something else because it’s been in the news also. The Columbia doctor, Robert Hadden, who I think your office charged some years ago, and then there was a resolution with your office that allowed him not to get jail time. He’s somebody who many, many people, including the wife of presidential candidate, Andrew Yang, alleged that he had sexually abused in his capacity as a doctor. And I think folks in your office have said something similar to what you’ve said about the Weinstein case, that it was a bit of a different time. Is there anything you want to add with respect to that case to the record?

Cyrus Vance Jr.:            No, I want to add that, as I think I’ve expressed previously is, we want to be an office where survivors know they can come to and be listened to objectively. And the response of the survivors in the Hadden case wasn’t part that they were critical of the way the office communicated with them. I was not directly involved in the case, but they were critical and felt that they weren’t listened to. And if that happens, that’s wrong. And to the degree that we have made survivors feel that we didn’t think they were important, that’s wrong. But, as you were saying in the resolution to the prosecutors who made that call in 2015 of a felony conviction, a surrender of the medical license for the rest of a career, was inappropriate resolution, but that would never, and I completely understand why, will not satisfy those women and feel that they were not credited.

Preet Bharara:              In looking at that case now with 2020 eyes, no play on 2020 hindsight, do you think you would have reached the same resolution if it were today?

Cyrus Vance Jr.:            I think we probably would have done additional investigation than where we resolved it in 2015.

Preet Bharara:              So you had a successful prosecution of Harvey Weinstein, and I want to read a quote from somebody, and I was telling my own team when we were discussing this interview that people would say this from time to time about a big case out of my office, and I would find it highly irritating. This news report said, “The verdict was a victory for the Manhattan district attorney Cyrus R. Vance Jr.” As if it’s a victory for you personally, not for the office, not for justice, etc, etc. They like to personify an office that way. “The verdict was a victory for the Manhattan district attorney Cyrus R. Vance Jr, whose legacy is likely to be largely defined by the outcome of the case.” How irritating is that sentence to you?

I’m giving you an opportunity to vent on my podcast about that analysis.

Cyrus Vance Jr.:            Well, at least I’m glad that the outcome was positive in the way that it was for the survivors in that case, who I just have to say were really courageous women who opened themselves up on the witness stand over the course of weeks and really held nothing back, acknowledged things that people couldn’t understand and did their best to explain them, but fundamentally, as I had hoped, when the jury saw them and heard them, there would be questions of course, but they would believe them. I felt that was important in a lot of ways. But I would in terms of a legacy in that issue, I really try to stay away from what I think is presumptuous, maybe I’m too simple on this, but I’ve had the job for 11 years, probably close to a million cases have come through the office during that time period, maybe 750,000 to a million. And the job is much more than winning or losing cases that get notoriety in the press.

As I say, probably 5,000 sex crimes investigations, 6,000 white collar investigations.

Preet Bharara:              You’re not going to get any argument. Look, I commiserate with you on this, which is why I read you the quote, and I wonder if the public sometimes gets a distorted understanding of not just a particular prosecutor’s office, but also criminal justice generally, when a lot of what they learned about how the process works is through the prism of a few sensationalized and famous circus like cases or cases that have a circus atmosphere around them.

Cyrus Vance Jr.:            Of course.

Preet Bharara:              And what do you do about explaining to folks day after day, after day, there are all these non-controversial cases that get brought that the most estimable public servants bring with the highest degree of professionalism and integrity and justice is one for so many ordinary people, but it’s just not going to be on the front page of The New York Times?

Cyrus Vance Jr.:            Right. I think it’s a frustration that you experience and that I experience. When I just think of for example, gun violence and economically disadvantaged neighborhoods, those cases have been the subject of terrific, intense investigations by your office, by our office and for a long period, had enormous success in making those communities safer. Not that much interest in that story, but give me a more important issue than gun violence and I would say there probably isn’t any more important interests than the safety of our citizens from being shot and killed.

There are other crimes which are justice serious, but that’s as serious as any. And it just doesn’t resonate in most of the reporting that covers criminal justice.

Preet Bharara:              It’s the way it is. I want to ask you about what you refer to as an evolution in prosecutorial thinking and other broad decisions you’ve made to not prosecute certain kinds of things. I think that’s where we’re heading and I think that’s very important for people to understand, but a preliminary question I’m going to ask you that is probably quite over-broad, but really a critical question in any discussion about criminal justice and law enforcement. And that is the degree to which race is still a defining problem in how law enforcement is accomplished and justice is achieved.

So discuss that in a couple of minutes, and then we’ll get to specifics because from what I understand, some of these decisions you’re making relate in large measure to the issue of race and discrimination that exists still in New York City.

Cyrus Vance Jr.:            When I ran for district attorney with my experience, having come from trial practice of criminal defense, I wanted to evaluate the Manhattan district attorney’s office in terms of statistical outcomes of cases and whether they reflected implicit bias. I don’t think our office engages in explicit bias, but implicit bias, we all are subject to that to a degree. And so I brought the Vera Institute of justice into our office in 2012, and they did about a two year review of our sentencing recommendations, charging decisions, bail requests on a large number of cases and issued a report, I think in 2015, which we are going to be updating within the next six months.

And it was essentially a statistical analysis of decision points, and did they reflect the potential for implicit bias? And the answer in 2015 was there were a number of metrics identified that could be the result of implicit bias, which then helped us inform some of the management decision making practices that followed in our office. Practices such as having the entirety of our office go through implicit bias training by appointing a chief diversity officer to address race, not just in the hiring, but in the context of our big picture decisions.

And so later on in time as I moved further down the road, it became clear to me that office that has 100,000 cases a year, probably 85% of those cases may end up being men and women of color brought into the justice system for a range of offenses. And I believe that the progress that could be made was to reconsider how we handled the 80,000 lower level offenses such as marijuana possession and smoking, theft of services, petit larceny. And between 2012 when we had 100 plus thousand cases to the end of 2019, we reduced our office caseload from 100,000 to 45,000.

That reduction being comprised in the better part of declining to prosecute lower level offenses where we believe that the individuals who were being arrested and charged were overwhelmingly men and women of color, where the judicial system and the justice system that those cases were being brought into was not accomplishing productive intervention with the individuals who came into the system, repeating myself, that the consequences were disproportionate to the consequences on their lives, the consequences such as not being able to get a student loan, limitations on housing.

So we really focused on the greatest body of cases in our office, which were by and large the least serious and try to significantly right-size our offices criminal prosecution with an eye towards looking for either diversion at the precinct level so those cases didn’t have to come down to 100 Centre Street or not bringing those cases at inception by indicating to the police department that we wouldn’t do that.

Preet Bharara:              I want to talk about a couple of examples. Perhaps the most timely is what law enforcement and what prosecutors are doing in the middle of this pandemic. And so everyone now understands the term social distancing, it is the lay of the land, especially in New York that has suffered so much loss because of the coronavirus. And here’s a statistic that I found stunning with respect to the issue of whether or not prosecutors in New York should prosecute folks who have been arrested by the NYPD relating to social distancing.

I saw a report that suggested that more than 90% of those arrested in the early weeks were black or Hispanic and white folks made up only 7% of all arrests. So tell us what decision you have made with respect to prosecuting people for/or being arrested for not social distancing and why?

Cyrus Vance Jr.:            We made the decision that we are not prosecuting cases for violations of social distancing or other violations of the governor’s order. We’re comfortable that we don’t want to make this health crisis into a criminal justice crisis. And if someone is however commits another crime, whatever that crime is that involves police starting out by talking to the person about social distancing, that we may prosecute those cases. I think we’ve had six cases where social distancing was involved. No decision was made over social distancing, but two cases I think were prosecuted where charges were brought against an individual independent of the social distancing. There was just a separate criminal offense, which followed. And I think two weren’t and several are under investigation.

Preet Bharara:              And separately, what’s your view on compassionate release for people who are incarcerated to deal with and mitigate the coronavirus? My understanding is that there’s been a dramatic reduction in who is incarcerated.

Cyrus Vance Jr.:            We have worked hard as an office to accomplish something that I’ve wanted to accomplish previously, but we have not yet done so, which is to do a census of everyone who was in Rikers Island on a Manhattan case, to understand granularly, who is this person, why are they in Rikers Island? And are there reasons that they should be released during this period of the pandemic. The Rikers Island population overall has been reduced from about 6,000 individuals for all five counties at the beginning of the pandemic to about 3,800 about a week ago.

The individuals detained in Manhattan were reduced 45% during that same period. I sent a memo out to the staff, which I’d be happy to share with you early on in this process where I said to them, “We are in an extraordinary time and we have to act with a scope of vision here as to whether we need to apply different rules at this time, not necessarily for all time.” And it’s about really exercising our discretion, not about bail factors, which are in statutes in New York, but try to identify people who were incarcerated, who we really believe presented a real clear danger if they were released or risk of flight.

We did that evaluation, as I said, we have reduced the population by 45%, some of those were the reduction of folks we did not object to who the city identified as being medically compromised. Some of those were just on our own evaluation, some of them resulted from talking with defense lawyers, but it was, I think all the parties in the system, not just our office, but that reduction of whatever that is, 45%, required prosecutors in our office to be more open-minded and more, I think, circumscribed about who should be in custody.

Preet Bharara:              You said something interesting, you said this is something you’ve been wanting to do for a while. So it’s not only because of coronavirus, are you saying that in some way it’s the, I hate to use this word, but the opportunity that coronavirus presented that allowed you to conflict some mechanism by which you could reduce the Rikers population, because as better than I, there have been folks who’ve criticized the percentage of people who are in Rikers Island attributable to the Manhattan DA’s office? Manhattan, as I understand it as 20% of the overall population of the city, but according to one report, had 40% of the population in Rikers Island.

So is this something that is going to be a continuing policy beyond COVID or is it something that’s just temporary?

Cyrus Vance Jr.:            Manhattan has always, I think had what I’ll just call disproportionate number of folks in Rikers Island, men and women, in part, Preet, it’s because we are the grand larceny capital of the city.

Preet Bharara:              Oh, you’d be very proud of that.

Cyrus Vance Jr.:            Yeah. Our larceny numbers in Manhattan have historically always been through the roof and those numbers have come down because of bail reform or because of our decisions. Those individuals are not being held in on bail. But to take the question further, one of the things that will be different and will be a lasting change from this epidemic in terms of our office and Rikers Island is the practice that we should understand for every person in Rikers Island, why are they there and be able to respond to whether it is a court’s question or if appropriate, a journalist question, or be publicly accountable to the decision making that we’ve made to keep someone incarcerated.

I think that will continue past the epidemic, and I think that’s a good thing. And I think we ought to be able for any individual who is in Rikers Island to be able to pull a file and say, “Okay, I see.” Or, I see. Now, this isn’t quite, let’s make a change here.”

Preet Bharara:              And do you believe Rikers Island should be closed?

Cyrus Vance Jr.:            I have expressed my view that Rikers Island should be closed. I think Rikers Island partly it’s like Alcatraz, it’s got a history that needs us to move past it and all it represents. I think there are ways in which burrow-based jail cells, assuming they can be built and they can be built in time and with the money that’s available to present a more modern and a more welcoming for lack of a better word, but a prison facility that is not just cold, concrete and steel. That’s where we should be headed. Whether the money still exists to do this is a decision that’s over my head.

Preet Bharara:              Can I ask you about some of the things that you’re doing and other prosecutors are doing to stop prosecuting certain types of crime, like fare evasion, and other things, is that a sign that the doctrine or theory of broken windows policing is a dead letter, and should it be?

Cyrus Vance Jr.:            No. I’m just hesitating because I’m not reviewing any of these decisions with regard to the doctrine of broken windows policing. I think broken windows policing, and I’m not an expert, but that term was coined and it was applied at a different time in our city. It was that time that we talked about at the very beginning of this interview where crime was out of control and we are in a different time. And we were in a different time in 2019, which is why we reduced our population of folks we brought into the courtroom by 45%, and crime continued to decline.

So there’s a greater awareness I think of options to traditional prosecution that ends up actually, enabling the city to continue to enhance safety. And that’s why I think broken windows, I get it, but we have been reducing our prosecution of these low level offenses and crime continue to decline in Manhattan, and I think in the city broadly.

Preet Bharara:              On fare evasion, I heard Commissioner Brighton with whom I worked also and consider him a friend, speak a lot about how that was really important thing to prosecute because from time to time, you would get somebody who maybe was wanted in a warrant in a more serious crime. And he said a few years ago, quote, “The New York miracle, if you will, began with fare evasion. Fare evasion enforcement on the subway 25 years ago.” End quote. So that’s something from the past. When you made the decision not to prosecute those cases anymore, did you get any angry calls from current or former NYPD folks?

Cyrus Vance Jr.:            I did speak with Bill Bratton, who was both a friend and someone I admire a great deal, and I know how he feels about it. I think Jimmy O’Neill, the commissioner after him had some of the same concerns, but at the end of the day, Preet, I’ve got a different job than the police. I have an office with budget, with resources, and when I have to spend $2,000 to prosecute $2.50 theft, when we spend through court time, attorney time, court officer, time, defense lawyer time, and nothing happens to those cases if they’re prosecuted. Prosecuting someone for theft of services results in one result, a sentence of time served if they plead guilty.

So it’s an enormous devotion of time and effort to cases that are not providing any, either intervention or punishment. And at the time that this controversy was being discussed in 2019, transit crime continued to be low and with something like seven felony robberies committed in a day on a city, how many people were in the subway system a day, three million?

Preet Bharara:              Well, not anymore. Now, it’s probably gone down a lot.

Cyrus Vance Jr.:            Yeah.

Preet Bharara:              Are there any other types of prosecutions? What’s your view of criminalizing possession of certain kinds of knives?

Cyrus Vance Jr.:            Well, my view was, and we in fact achieved a settlement early on in my years as DA with regard to gravity knives, our position, the police department position, frankly, the governor’s position until last year, was that gravity knives, which are knives that are designed to flick open using gravity and flick at the wrist, present the same kind of risks as does a switchblade or stiletto. Ultimately, the legislature decided that they wanted to decriminalize possession of those knives and that is their prerogative, and they were clear about a change they wanted.

Preet Bharara:              We’ve gone very, very long into an interview and I have yet to ask you about that thing that a lot of people will want me to ask you about. And by that thing, I mean that person, also known as the president of the United States, Donald Trump. Mr. District attorney Cyrus Vance, what are you doing involved in an investigation of the president? His lawyers say you have no business even engaging in thinking about an investigation, much less trying to get documents or bringing a charge against the president. What are you doing?

Cyrus Vance Jr.:            Well, Preet, I’m going to have to dimmer on everything, but the most general comments.

Preet Bharara:              I know, because there’s a Supreme Court case pending, but can you just in a minute, describe what it is that your office is seeking?

Cyrus Vance Jr.:            Sure. Look, the Manhattan District Attorney’s office has jurisdiction and the history of successful investigation in crimes that go far beyond what, if there’s a word typical prosecutor’s office handles because we are in Manhattan, which is the entertainment center of America, if not the world, the business center. And so if there is an investigation that needs to be done of businesses and individuals in the event that there may be questions about conduct of those individuals and businesses in Manhattan, that is something which our office has historically, and I think should continue even if the Federal Government is unwilling or cannot for whatever reason conduct those investigator.

Preet Bharara:              Right. I don’t think we’re getting into anything that’s inappropriate given that the case is pending, but essentially, what’s in controversy is that your office is seeking financial documents and tax records relating to the president and his associates from a third party accounting firm. Is that right?

Cyrus Vance Jr.:            Right.

Preet Bharara:              And Carey Dunne of your office argued in the Supreme Court, by the way, everyone says he did a very nice job where you, can you answer this question? Were you proud of him?

Cyrus Vance Jr.:            Carey is one of the smartest and most talented lawyers that I know, and so I think he acquitted himself very well in that argument.

Preet Bharara:              But you’re not going to handicap it in any way?

Cyrus Vance Jr.:            I’m not going to handicap it in any way.

Preet Bharara:              And you’re not going to say anything else about how… I’ll say it for you in the stem of the question and then you can decline comment. You’re not going to say anything about how ridiculous the argument of the president’s lawyers is that he could literally shoot someone on Fifth Avenue and putting aside whether or not he could be indicted for it, the local district attorney couldn’t even investigate. Do you have a comment on that, Mr. Vance?

Cyrus Vance Jr.:            Well, I can make this commitment, I will have a comment when and if the Supreme Court renders its decision.

Preet Bharara:              Do you have a prediction as to when that might be?

Cyrus Vance Jr.:            Well, I don’t. I’m not a Supreme Court guru, but I’m led to believe it will be in the month of June or possibly into July, because I think things have been a little slower and pushed back because of the virus.

Preet Bharara:              Did you have a reaction to how the case against Paul Manafort concluded?

Cyrus Vance Jr.:            Look, I think that was another case where we believe there was evidence of criminal misconduct by Mr. Manafort in New York, serious crimes around real estate finance. And we believed that he should be held accountable for that serious criminal misconduct in New York court, and that this was not prevented by the fact he had been prosecuted in the Federal Government and there was a detailed analysis. They’re looking at number one, do the state court crimes have the same elements as the federal court crimes? And number two are the statutes dealing with federal offenses and bank fraud in some way, fundamentally different than the state statutes?

And to us one deals with protecting the bank and the other deals with protecting the shareholder or the person with money in the bank or with a mortgage. So that’s now before the appellate division, we filed briefs and I think the briefs are excellent. And we think that’s-

Preet Bharara:              You’re not going to handicap that either though. Go ahead, please.

Cyrus Vance Jr.:            Well, we have felt from inception that applying the legal analysis that we think does apply that this case should proceed in state court. And that’s something that just shouldn’t be allowed to pass away because he was convicted by some counts in a federal court.

Preet Bharara:              Do you want to announce right here on this award winning podcast whether you will seek a fourth term as district attorney?

Cyrus Vance Jr.:            I’ll tell you what, I don’t. What I feel is-

Preet Bharara:              You hesitated for a second, I thought I was getting lucky there.

Cyrus Vance Jr.:            I don’t. It is a privilege and it has been a privilege and it’s been fascinating and interesting. And you and I have shared some of those experiences together, to have been DA, it’s really been extraordinary, but at this moment, I’m not worried about running or politics, it’s still quite a long way away. And my focus is on an office that needs to be led, and I mean that led collectively through a very, very difficult period where there is uncertainty and there is fear by many of the participants in the criminal justice process that come to our office, lawyers, staff, victims, police officers, you name it.

And I need to be sure that I’m doing everything I can to manage that process as we go through it.

Preet Bharara:              So that’s a no.

Cyrus Vance Jr.:            That’s a no, I’m not going to announce anything. That’s a no.

Preet Bharara:              I can ask this question from time to time, but I’d like to ask another esteemed prosecutor. Do you think of people as being… Are there bad people or only people who do bad things?

Cyrus Vance Jr.:            Well, I think everybody comes into the world innocent, and so I don’t believe there are bad people who come into the world, something happens to them along the line where they fall off the tracks. Why that happens, in so many cases, you and I, Preet see that folks get involved in criminal misconduct because of stuff that’s not their fault, lack of employment, lack of education, lack of housing, addiction. There’s of course the concept of individual responsibility, I don’t deny that, but it’s also true that the American dream of prosperity and freedom is delivered in different doses depending upon where you grow up and where you reside.

I do think that as adults, there are some people who present as just dangerous and violent, and you could look at each of them and try to go back in their past and see if you can determine where it started and why it started, but I don’t think anyone starts at this world as a bad person. I think you become that and you can become that.

Preet Bharara:              Cyrus Vance, thank you for your service. Thank you for coming on the show. Really appreciate it.

Cyrus Vance Jr.:            Thanks Preet.

Preet Bharara:              My conversation with Cyrus Vance continues for members of the CAFE Insider Community. Insiders get Bonus Stay Tuned content, the exclusive weekly podcast I cohost with Ann Milgram, recordings of my weekly notes and more. To get a free two week trial, head to cafe.com/insider. That’s cafe.com/insider. Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Cyrus Vance Jr.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me @Preetbharara with a #AskPreet, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to [email protected] Stay Tuned is presented by CAFE. The executive producer is Tamara Sepper. The senior audio producer is David Tatasciore. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Calvin Lord, Noa Azulai and Geoff Isenman. Our music is by Andrew Dost. I’m Preet Bharara, stay tuned.

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Between Two Prosecutors: Part II (with Cyrus Vance Jr.)

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