An Illegal Gun on the Streets is no Slam Dunk in Court

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Illegal guns seized by the NYPD and displayed during an August 2013 press conference at City Hall.

Spencer T. Tucker

Illegal guns seized by the NYPD and displayed during an August 2013 press conference at City Hall.

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This story appeared first on TheTrace.org
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New York Police Department Detective Matthew Jogoda was working a funeral detail last December when he says a traffic infraction and a whiff of marijuana led him to put his hand down a Brooklyn man’s pants and pull out a Smith & Wesson .380 Bodyguard, a compact little weapon that holds six bullets in the magazine and one in the chamber.

Rayon Gordon was arrested and charged with criminal possession of a weapon, setting in motion one of the dozens of cases to come before New York City’s latest experiment with specialized gun courts.

Established by the administration of Mayor Bill de Blasio, the courts are part of Project Fast Track, a multi-pronged effort to reduce gun violence launched this January. Amid a rise in shootings in cities across the country (an increase from which New York City has largely been spared), the initiative is testing a larger question: how to dissuade people from unlawfully carrying firearms, and thus reduce the opportunities for confrontations to turn deadly.

One response to a surge of gunfire, embraced by Democratic mayors in Milwaukee and Chicago, is to seek tough minimum sentences for people caught with firearms they shouldn’t have — the very kind of mandates that have been rejected by policymakers on both sides of the ideological divide, due to the racial disparities those minimums produced in the mass incarceration that resulted from the war on drugs. New York City’s approach to gun courts provides an alternative, where the goal is not to make punishment more severe, but instead more certain and swift.

Achieving that objective seems straightforward: Someone is caught with a gun they aren’t supposed to own; that someone is brought before a judge to receive their due punishment.

The speed gun courts aim for is important because defendants in cases that linger are harder to convict. With more gun arrests sticking, and sticking more quickly, the rapidity and consistency generate benefits of their own as word gets out among the young people who are responsible for the bulk of urban gun violence.

“In that age group, if you don’t move swiftly you lose the impact of the punishment,” says says Richard Ahorn, the head of the Citizens Crime Commission, a nonprofit group that advocates for measures to reduce crime. “The immediacy is important because you want to send a message.”

The message being, of course, that carrying illegal firearms poses too high a risk of getting caught, and being convicted of a gun charge.

As part of Project Fast Track, the NYPD set up a 200-member gun suppression division that will use a database to track trends and identify offenders in high-crime precincts. When those offenders are apprehended, the division will also provide a dedicated officer to follow each gun case through the courts and work closely with prosecutors to build a case most likely to lead to conviction. Through their rulings, the courts are supposed to complete a virtuous cycle, providing consistent evidentiary standards that can give cops and prosecutors a better roadmap for how to raise the rate of gun possession convictions.

But what happened to Rayon Gordon after he was arrested outside that Brooklyn funeral shows how complicated it can be for gun courts to deliver the kind of straightforward results politicians promise. Just as in traditional judicial proceedings, cases can be thrown out because police were deemed to have violated constitutional safeguards, or because officers secured weapons in the course of by-the-books police work whose nature makes proving illegal possession inherently difficult.

“Straight gun possession cases,” says former NYPD cop and current John Jay College Professor Eugene O’Donnell, “are not uncomplicated.”

Whose gun was it?

Police unions and right-wing tabloids have cultivated a myth of rising violence during de Blasio’s administration, but the reality is that the city is remarkably safe. There have been 131 fewer shootings in the city so far this year compared to the first seven months of 2015, a year that saw a the third-fewest number of homicides in the city’s modern history.

Police are also making lots of weapons arrests. In 2015, there were more than 13,000 arrests where weapons charges were the top offense, 54 percent more than in crime-fighter Rudy Giuliani’s final year in office.

Conviction rates, however, have not kept pace with the climbing case load. Statistics from the state’s Division of Criminal Justice indicate that the ratio of convictions to arrests in cases where a weapons charge was the top offense dropped to 18 percent from 2009 to 2013, down from 40 percent in the 1994 to 1998 period.

The drop in convictions, law enforcement officials say, is at least partly because of changes in state law that stiffened penalties for gun possession, reducing the number of plea bargains and sending more cases to court. (It was this statutory change that undermined a previous gun court experiment in Brooklyn, where the new surge of cases overwhelmed district attorneys and judges.)

Boosting that conviction rate is the goal of Project Fast Track.

“The real problem has been their inability to make gun cases – not that the process wasn’t efficient or quick,” says City Councilmember Rory Lancman, a Queens Democrat who stood with the mayor when Project Fast Track was announced. And changing that, he argues, “means good police work, good evidence collection.” For a prosecutor to win a gun possession case, she has to prove several critical facts: that the defendant actually possessed the gun in violation of the law (in New York, it is nearly impossible for average residents to secure a permit to carry a gun in public), and that the police officers who found the weapon were in their rights to search for it in the first place.

Proving the former is fairly easy when the illegal gun is found tucked in a waistband or secured in an ankle holster, says David LaBahn, president of the National Association of Prosecuting Attorneys. But such clear-cut busts are also rare, he says.

The farther the gun from the body, the easier it is for defense lawyers to raise doubts about who actually possessed the weapon. A gun jammed into the pocket of a jacket? The arrestee could say he grabbed the wrong jacket at a party, Le Bahn says.

“The most common gun case,” Le Bahn says, “is the gun in the car, it’s not lying there in plain site. It’s under a seat. It’s in a glove compartment.” The person nearest to the weapon can say he’s just a passenger, and has no idea where the gun came from.

“Who can you say truly possessed it?” LaBahn asks, channeling a defense lawyer.

Cutting through the fog of doubt might require an affidavit from someone attesting to the fact that the person arrested did, in fact, own the gun; or finding social media posts that show the person holding a gun of the same make and model.

“Or you might get really lucky,” LaBahn says, “and get fingerprints or DNA off the weapon or a cartridge.” Without that kind of direct, physical proof, the door is open to the defense that “the gun wasn’t mine.”

Determining whether physical evidence exists to tie suspects to firearms is part of the daily grind at Brooklyn’s gun court. In Gordon’s case, at least, the process appeared neither fast nor simple. On May 25, five months after the arrest, prosecutor Elaine Albenda told Judge Susan Mondo “the gun has been swabbed.” But it was still unclear whether there was enough DNA on the gun to warrant testing Gordon for a match.

In some cases, fingerprinting the firearm might help prove possession. But Fordham law professor Jim Cohen says that tool is not often employed in New York. “It’s extremely unusual to have a gun possession case in which the police have subjected the gun to fingerprint analysis. Fingerprinting is not what the NYPD does, except in the most heinous and highest profile of crimes, and not always in those.”

Circumstances also often conspire to obstruct evidence collection: Often, police officers encounter illegal guns amid the tension and danger inherent in a street encounter, where their first job is to make sure the gun isn’t used to injure or kill someone, and their second task is to make sure the suspect doesn’t flee. Ensuring that evidence is collected in a fashion that will best preserve it for use in building a case is a tertiary priority in those situations, says Cohen.

In other situations, a cop reaching under a car seat or into a tightly packed bag may accidentally touch a gun he didn’t expect to find, contaminating the evidence.

“There’s no certainty that even if you’ve properly handled it, that you’re going to pull prints off it,” LaBahn notes. It can be easier to get gun evidence at a crime scene where a gun has actually been used and discarded, he says, because police can take their time in treating the gun as evidence, not a direct threat.

The right to search

Even when a gun is found in a waistband, and there’s no doubt about who possessed it, prosecutors aren’t home free. For starters, there is the obvious obstacle of the defense attorney, who will be in no hurry to move things along. “The system is very, very difficult to move,” says Cohen. “Defense attorneys are not going to cooperate with that. They understand very, very well that time is their friend in terms of getting adjournments.”

And then there is the important question of why cops had their hands in that waistband to begin with. If prosecutors cannot prove that the officers had the right to find the gun, the case could run into trouble under what’s called the exclusionary rule.

That rule, established in a series of U.S. Supreme Court cases that includes the 1966 Miranda decision, holds that evidence obtained through illegal means — such as an unconstitutional search — cannot be used against a defendant. “There must be reasonable, articulable suspicion in order to do that stop,” says LaBahn, “and there must be further evidence for why you went ahead with an actual search.”

The legal standard creates opportunities for police to make mistakes that will upend a gun case, says Bennett Capers, a professor at Brooklyn Law School. “There are officers out there who will frisk as a matter of course. Unless that officer can articulate why that person was dangerous, that frisk — if it uncovers a gun — will be thrown out.”

As an officer enters a residence, other potential pitfalls await. “Sometimes officers go into a home and end up seeing a gun. Did they have proper justification for going into a home without a warrant?” Capers adds. “So much of this is fact-specific, which is why officers have a difficult time because they’re not legal experts.”

Nationwide research indicates that the exclusionary rule is invoked successfully by defense lawyers in a minority of cases, and many scholars say the Supreme Court under Justice John Roberts has reduced the rule’s scope, mainly by carving out wider good-faith exceptions for cops who unintentionally violate it (say, by pulling over a car based on a misinterpretation of what type of vehicle an all-points bulletin described). And Cohen notes the enormous political pressure on judges — and the politicians who appoint them — to punish alleged violent criminals and avoid setting free someone who goes on to commit a heinous crime.

But those curbs notwithstanding, the exclusionary rule remains a potent play for defenses. “Gun cases are won or lost at the suppression hearing,” Lancman, the Queens councilman, notes. At those pretrial hearings, a defense attorney can try to prevent a gun from being admitted as evidence — and thereby destroy the case against their client.

Which is how Rayon Gordon beat the gun rap he was facing.

The brief hearing was held in the new gun court in Brooklyn — really just a set of regular courtrooms in the massive Supreme Court building in the borough’s downtown. During testimony, the arresting officer, Jogada, explained that he and colleagues were patrolling outside the memorial service for a slain gang member late last December, collecting intelligence on which gang members showed up and keeping an eye out for violence, when he saw a Nissan Sentra drive into a bus lane on a street where traffic was partially obstructed and then change lanes twice without signaling. Approaching the car, he said he smelled marijuana and saw flakes on Gordon’s pants. The police officer ordered Gordon out of the vehicle. As he was frisking him, he felt the gun in Gordon’s jeans. Jogada told Gordon he was getting a ticket for the pot, cuffed him, then pulled the gun out. Jagoda testified that Gordon admitted he had a gun when asked.

When Jagoda and a fellow detective were cross-examined in gun court in May, however, they offered conflicting rationales for why they pulled the car over in the first place. The other detective said nothing about smelling marijuana, and when he spoke to an assistant district attorney shortly after the arrest, he told a different story about where the gun was found. No pipes or rolling papers were in the car, and city policy is now to issue a ticket — not cuff people — for small amounts of pot.

What’s more, the arrest documents prepared separately for Gordon and two other occupants of the car indicated that each of the three arrested men were individually responsible for possessing the .380 — which is not possible, under the law. “All of this raises serious questions about the credibility of the account,” Judge Alan Marrus said. “On that basis alone, I am unable to credit their account.” With that, the defense’s motion to exclude the gun from the evidence that the gun court could consider was granted. The Brooklyn district attorney decided not to appeal, and the case against Gordon was dismissed.

One gun at a time

For now, the latest experiment with New York gun courts is limited to Brooklyn. City officials are monitoring its performance to see if the idea warrants expansion citywide. As cases make their way through the docket, Project Fast Track is filtering lessons about evidence collection back to the NYPD to improve procedures and training, so that arrests are standing on firmer foundations when they reach prosecutors.

John Jay College professor Eugene O’Donnell, a former cop, says that officials ought to be careful not to tie success in reducing gun violence too closely to conviction rates. People carry guns for different reasons, he notes, and not everyone caught carrying a firearm should face the same consequences.

“What do you do about the person who’s trying to protect themselves? Or who didn’t know the gun laws? We have all these laws predicated on the idea that there’s no reason to have a gun. There’s going to have to be exceptions because otherwise you have injustice”.

As powerful as the desire to remove guns from circulation might be, Capers wonders if resources might be better spent focusing on the guns that actually have been used to commit crimes. “I’m always sort of thinking, our homicide clearance rate is still way too low. We only solve two thirds of homicides,” he says. Nationally, the FBI reports a homicide clearance rate of 64 percent; it can be much lower in high-crime cities. “There are people who’ve already been shot. We ought to address that too.”

Or maybe the effectiveness of gun courts at surmounting the challenges of evidence en route to swift and certain justice is beside the point. As LaBahn notes, even when an illegal gun is ruled inadmissible in court and the person accused of carrying it goes free, they don’t get their firearm back.

“At a minimum,” he says, “you’re taking that gun off the street.”

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Weapons arrests and convictions, New York City, 1994-2015

Statistics from the New York State Division of Criminal Justice Services. Numbers reflect cases in which the top charge was a fingerprintable offense within section 265 of the New York State Penal Law, including Criminal Possession of Weapon (1st-4th degree), Criminal Use of a Firearm (1st-2nd degree), Criminal Sale of a firearm (1st-3rd degree), Criminal Sale of a firearm to a minor and related charges. Convictions are based on year of sentencing, which could be different from year of arrest.