The Fox is Guarding the Station House

The sidewalk in front of Lakee McKinney’s home by the street-corner where he claims an NYPD officer assaulted him. (Lucas Manfield/NYCityLens)

It was a warm summer night in Bed-Stuy and Lakee McKinney was out on the sidewalk in front of his mother’s apartment, waiting for his girlfriend. He was 17, a running back on his high school football team. That night he was wearing green: a green T-shirt, green crocs and green Nike athletic pants that fit tightly to his body.

Suddenly, a black car pulled up – he thought at first it might have been his girlfriend’s Uber. It wasn’t. Three men jumped out and came at him.

Photographs taken later at the 79th precinct show bruises on the boy’s face and back. Did one of the three men – plainclothes officers, it would turn out – beat him, as McKinney alleges? Or was it a routine stop in search of a gunman, as claimed by one of the cops?

At a police disciplinary trial nearly three years later, it is up to a police administrative judge to determine what really happened – a process so shrouded in secrecy that even the chief of police is demanding it be reformed.

Nearly 5,000 official complaints were made against the NYPD last year. Each is investigated by the Civilian Complaint Review Board, which was formed in 1993 to provide independent oversight of the NYPD. Of those thousands of complaints, it completes investigations of a third and finds enough evidence to substantiate the claim in a fifth, according to statistics released by the board. But very few make it to trial, as did McKinney’s case in February – only 37 did in 2017.

Sitting behind the stand in Trial Room A on the fourth floor of 1 Police Plaza, McKinney – now 20 years-old and working as a security guard – has ditched the green, opting for a black sweater, slacks and leather shoes. He’s grown up, and when the courtroom catches a glimpse of his bruised face photographed nearly three years earlier, its youth comes as a shock.

That night, on August 27th, 2016, McKinney said he was frightened. Reaching into his pocket to put away his phone, McKinney prepared to run.

For Officer David Mercado riding in the backseat of the car, McKinney’s hand diving into his pants was a red flag. The three officers had been cruising down Throop Avenue on a tip: there was a kid on the corner with a gun, Mercado told the court. After yelling “Police!” out the window, Mercado said he jumped out of the car, grabbed McKinney by the wrist and searched the teenager’s pockets.

According to the complaint McKinney would file an hour later at the 79th precinct, three plainclothes officers came out of a car and attacked him. “I was punched in my face,” he said. At the two-day trial, he singled out Mercado, claiming the officer choked him to the point where he could not speak and then refused repeated requests for his badge number.

“None of that happened,” Mercado’s lawyer told the judge. “Just a complete fabrication, your honor.”

Neither Mercado nor McKinney agreed to comment for this article.

If this case had simply been the word of a kid against the word of a cop, it may never have made it this far. But McKinney and the officers were not alone that summer night. Craig Gaddy, a pastor who sits on the police precinct clergy council, was standing across the street and witnessed the incident. He assumed at first that McKinney was being robbed and afterward told the teenager to call 911.

Furthermore, there’s the question of McKinney’s pockets. The prosecutor would question whether the stop-and-frisk was justified, wondering: could McKinney’s “fitted” athletic pants have concealed a gun, as Mercado claims he assumed?

In concluding its investigation, the review board substantiated allegations against all three officers: that Mercado failed to identify himself, that he abused his authority by stopping and frisking McKinney and that he used excessive force by putting McKinney in a chokehold.

By the end of the trial against Mercado, the review board had called four witnesses to the stand: McKinney, McKinney’s mother – who Mercado apologized to the night of the incident – and two bystanders. Mercado’s case rests entirely on his own testimony; neither of his fellow officers were there to testify.

But Mercado, a seven-year veteran of the force, has engaged a private defense attorney, John Tynan. Tynan is a regular in this courtroom and is on familiar terms with the judge. He’s defended cops for everything from ill-advised tweets to groping young girls. In this case, Tynan emphasized the challenges of policing Bedford-Stuyvesant, a neighborhood that he characterized as “dangerous” following a spike in violent crime. He used Mercado’s race in an effort to undermine McKinney’s credibility, asking him, “Have you ever seen three white men rob someone in Bed-Stuy?”

Mercado enjoys another advantage: although Trial Room A has all the trappings of a typical courtroom – high ceilings, a court stenographer and American flag hung behind the bench – this is not a typical trial. There is no jury. And instead of an impartial judge, there is Jeff Adler, an Assistant Deputy Commissioner of Trials who is employed by the police department. He listens to evidence and then decides whether to recommend disciplinary action. In McKinney’s case, the prosecutor – a lawyer assigned by the review board – asked for a 15-day suspension for Mercado. But even if Adler agrees, the final decision lies with the commissioner.

Given the myriad ways that a prosecutor’s recommendation can be overridden – a not guilty verdict, a dissenting trial judge or a commissioner overrule – the final penalty imposed reflects the initial recommendation in only 27 percent of cases that go to trial, according to the review board’s annual report.

Cases of police misconduct, even those that make it to court like this one, rarely get much media attention. McKinney’s personal attorney, Abe George, expressed surprise that a reporter was asking questions and wondered if the accused cops had done something else.

This is partly by design. The police disciplinary process happens in near total secrecy. The NYPD does not publish a calendar of where and when the trials occur and the Legal Aid Society has resorted to posting an intern outside the courtroom door to find out when cases are called. The secrecy is the result of section 50-a of the state’s civil rights law, which prevents the public release of an officer’s personnel record. It was passed in 1976 to protect cops’ privacy and safeguard them from abuse.

It’s a law that frustrates city public defenders, who are forced to rely on their own patchwork database of police misconduct cases. As Christopher Boyle of the New York County Defender Services explained at a city council hearing in February: “Police officers should not be treated any differently from any other witnesses at trial. But illogically New York’s police witnesses are able to cloak their past misconduct in secrecy.”

And since it was passed, 50-a’s impact has been expanded. The NYPD has long refused to release court transcripts or evidence from administrative trials like McKinney’s and in 2016 it stopped publishing their verdicts as well. When it appeared that the police would reverse course last year, the police union successfully filed a restraining order to keep the court records secret. Their justification: 50-a.

But some of these records have leaked. Last year, Buzzfeed published disciplinary actions between 2011 and 2015 against roughly 1,800 NYPD officers. It found that over 300 officers had committed fireable offenses and remained on the force. And earlier this month, the Legal Aid Society released their database of thousands of lawsuits accusing NYPD officers of misconduct.

This back-and-forth has frustrated the department’s leadership. Last year, the police commissioner, James P. O’Neill, convened a panel of experts led by Mary Jo White, former chair of the Securities and Exchange Commission, to look into it. Its report, released in early February, was scathing, citing a “fundamental and pervasive lack of transparency” that undermines public confidence in the police.

The commissioner embraced the panel’s conclusions, calling on Albany to repeal 50-a and promised a slew of changes increasing transparency in the coming months. “The NYPD doesn’t fear scrutiny,” he wrote in a New York Daily News editorial. “The law must be changed.”

Constance Malcolm agrees. Her son, Ramarley Graham, was shot by Officer Richard Haste in Malcolm’s Bronx apartment in 2012. “It took five years of non-stop organizing before Haste even saw an NYPD disciplinary trial,” she said in a hearing before city council earlier this year. Eventually Haste resigned instead of facing disciplinary action. But, “every step of the way, 50-a was an obstacle” Malcolm explained, and cited a dozen other officers besides Haste who she believes are being shielded by the law and should have been disciplined.

A bill to repeal 50-a was introduced in January in the state legislature, and with Democrats firmly in control, its fate likely rests with Gov. Andrew Cuomo, who must sign it to make it law. The governor has so far not commented publicly on whether he supports repeal and it is not on his official legislative agenda.

Meanwhile, McKinney’s family has sought other ways to hold the police accountable. On February 25th, the week after his testimony, George filed a civil rights lawsuit against the police seeking punitive damages for the “racially motivated” incident, citing the review board’s investigation as evidence of police wrongdoing.

George praised the Civilian Complaint Review Board’s work. “This is a perfect example of how good the CCRB was working,” he said. But it’s taken nearly three years and McKinney is still suffering the consequences of his complaint. Since the incident, he says he has been targeted and frequently stopped by the police, George said.

At trial, McKinney explained why he was still fighting for some sort of resolution. Referring to Mercado, McKinney told the judge: “The way he treated me wasn’t right.”