Cascade of Overturned Cases May Emerge In Wake of Philly DA’s ‘Bad Cop’ List
By Maura Ewing and Daniel Denvir
In 2012, Gilbert Narvaez was convicted on drug-dealing charges and sent to a Pennsylvania prison for a three- to eight-year sentence. Narvaez maintained his innocence and argued that he was the victim of a bad cop named Christopher Hulmes, who claimed that in 2011 he had seen Narvaez in Philadelphia’s Fairhill neighborhood peddling narcotics.
“He was just standing on the corner,” said Narvaez’s lawyer, Christopher Jay Evarts. Narvaez told the Philadelphia City Paper that he bumped into a friend, who he suggested was likely dealing drugs, and stopped to chat. But the word of a young man with a rap sheet, who has admitted to drug dealing in the past, didn’t hold up against an officer with the Philadelphia Police Department.
Unbeknownst to Narvaez at the time of his conviction, however, Hulmes had openly admitted to committing perjury in an unrelated case in 2011. This should have caused the officer to be criminally charged and banned from providing testimony in court. But the Philadelphia Police Department allowed Hulmes to continue making arrests, and the district attorney at the time, Seth Williams, who is now serving a five-year federal prison sentence for accepting a bribe from a local businessman, continued to call him to the witness stand. A 2014 investigation in City Paper (now defunct) exposed the perjury incident, and ultimately Hulmes was forced to resign but spared a criminal conviction.
After Hulmes’s perjury was revealed, Narvaez’s lawyer petitioned the court to have his client’s conviction thrown out. On May 14, 2015, Narvaez’s conviction was overturned. But during Narvaez’s more than two years of imprisonment, he missed his baby daughter grow into a toddler — he will never get that time back.
Narvaez’s case is one of over a hundred cases involving Officer Hulmes that have been thrown out by Philadelphia courts since 2014, according to Bradley Bridge, the attorney in charge of police misconduct at the Defender Association of Philadelphia. And there could be more, Bridge said, because his office is still in the process of unraveling Hulmes’s dubious legacy.
The discovery of one bad cop, especially if their misdeeds were known by prosecutors yet hidden from defense attorneys, can result in a cascade of dismissed cases. In December, Deborah Katz Levi, the head of the Baltimore City Public Defender Special Litigation Section, said that she identified 2,000 cases that she described as “irreparably tainted” because of their connection to the corrupt Baltimore Police Department’s Gun Trace Task Force which saw eight of its nine members indicted in federal court (six later entered guilty pleas and two were convicted at trial).
In Philadelphia, the previous district attorney, Williams, did little to root out police misconduct. But in January, Larry Krasner, a long-time civil rights attorney, was sworn in as the city’s new DA after a campaign in which he promised major criminal justice reforms, including tackling police misconduct. Krasner’s promises, however, face a significant challenge: a police disciplinary system that rarely punishes officers for misconduct that has allowed a large number of cops with questionable records to continue to make arrests, about which they ultimately may have to testify in court.
The scope of Krasner’s challenge was highlighted last month when, under court order, he released a “do not call” list, compiled by Williams’s office, comprising 66 officers who the Police Board of Inquiry said had committed misconduct, including brutality, drinking on duty, and lying to investigators. The “do not call” list was compiled in March 2017 by top aides to former DA Williams. Of those who have been publicly named, only one is still working in the DA’s office, according to the Philadelphia Inquirer. About half of the officers on the list appear to still be on the force; nine are on active duty and collectively made 41 arrests last year. In the past five years, the 29 officers restricted from taking the witness stand have made more than 800 arrests.
In reality, the “do not call” list is a misnomer: The list either instructed prosecutors to seek a top official’s approval before allowing 29 officers to take the stand, or, in the case of other listed officers, to allow them to testify but disclose their record to defense attorneys, or for the prosecutor to simply be aware of the misconduct. Instead of barring the 29 officers from taking the stand, prosecutors simply dismissed cases to ensure that the officers did not do so, according to the Inquirer. Yet there are “thousands” of possible cases involving officers on the entire list, says Bridge. He and his colleagues are in the process of reviewing them, and potentially asking that they be thrown out.
Officer Hulmes, however, was not on the list. This is likely because Williams limited it to officers with recent misconduct findings. Neither were any of the six Narcotics Field Unit officers charged and later acquitted in federal court in 2015 in a high-profile corruption and brutality case — save for one, Michael Spicer. Over 1,000 cases involving these cops — as well as a seventh officer, Jeffrey Walker, who pleaded guilty in federal court to robbing a drug dealer and testified against his former colleagues — have been thrown out since Bridge started filing petitions to have cases that depended on these officers’ testimony tossed in 2015. The “do not call” list, then, represents just the tip of the iceberg of police misconduct in Philadelphia. When the entirety of the problem is fully exposed, the number of convictions subject to dismissal could become enormous.
By law, prosecutors are required to disclose all evidence that might be favorable to a defendant under the “Brady rule,” named after a 1963 Supreme Court case that enshrined this obligation, Brady v. Maryland. This includes information that the DA has on any arresting or testifying officers’ history of infractions that may undermine their credibility as a witness. Perhaps the most high-profile case of police misconduct in Philadelphia involves the rapper Meek Mill, or Robert Williams, who has most recently been jailed since Nov. 6, 2017 for violating the terms of his probation, which stemmed from his conviction on charges following a controversial 2007 drug and gun arrest by Reginald Graham, an officer who was on the “do not call” list. Mill has violated probation several times over the years, first in 2011 for opioid use. This is the second time he has been jailed for breaking the rules of probation. In a March 14 response to Williams’s Motion for Stay and Bail Pending Consideration For Post Conviction Relief, Krasner’s office admitted that “[A]t some point prior to 2018, the Commonwealth because aware of some issues or conduct bearing on the credibility of Officer Graham, yet there is no indication this material was timely given to the Court or Petitioner.”
Similarly, Bridge argues that prosecutors violated the Brady rule years ago, when Hulmes’ perjury was disclosed in 2011. “It was incumbent on the prosecutor to either nolle pros all subsequent cases, or at a minimum to notify the defense,” he said.
Indeed, the entire “do not call” list should have been made available to defense attorneys, said Philadelphia-based civil rights attorney David Rudovsky, who specializes in police misconduct. Even if prosecutors didn’t allow the 29 “do not call” officers to take the stand, the 37 on the list who were not restricted from testifying were still found to have committed misconduct. “We don’t know the extent of it, but for sure there were a category of cases where the DA knew we had a problematic police officer and [the DA] called him anyway,” Rudovsky said.
Ironically, Williams’s “do not call” list was a belated effort to deal with the mounting issue of police misconduct. For years, it was difficult to determine what a cop could do to get taken off the street or criminally charged. In 2010, Philadelphia police officer Eric Burke developed a reputation for stomping on civilians’ heads. In a rare move, Internal Affairs sustained excessive force findings against Burke but his punishment was merely a written “reprimand.” Burke left the force in May 2016 for reasons that the police department declined to specify. In 2015, the six narcotics officers in the Narcotics Field Unit scandal were reinstated through arbitration after being acquitted in federal court of charges related to allegations that they had systematically beaten and robbed drug suspects. In 2016, Officer Hulmes, exposed for committing and admitting to perjury, avoided prosecution by agreeing to a pretrial diversion program and agreeing to never try to re-enter the force.
So, the creation of the “do not call” list was a make-do solution to police misconduct that failed to get at the heart of the problem and only compounded the Brady issues related to the list. As civil rights attorney Rudovsky noted, the list should have been shared with defense attorneys in pretrial discovery.
Krasner’s office is still determining its procedures regarding the disclosure of information about police misconduct to defense attorneys. “We are currently hard at work at disclosing more information and trying to have a solid system for gathering, storing and providing information that rises to the level of Brady about police,” Krasner told In Justice Today. His spokesperson, Ben Waxman, said the office will have an upgraded “do not call list” by mid-May.
Still, Krasner’s office is in a bind: If a broken police department disciplinary system keeps putting bad cops back on the street, those officers could make arrests and their testimony might then be necessary in criminal trials. The DA’s office, after all, does not control the police department.
There are, however, concrete actions that Krasner’s office could take. One would be ensuring his office has access to Internal Affairs investigations and findings, as well as to decisions made by the Police Board of Inquiry, and a system within the DA’s office to make use of that information. Another possibility is “open-file discovery,” which provides defense attorneys access to prosecutors’ case files. As it stands, prosecutors privately make the decision of what evidence must be turned over pursuant to Brady — and thus fail to disclose a lot, as evidenced by the “do not call” list having been kept secret. Krasner can also prosecute police when they commit crimes, something that has been rare in the past.
“You can provide much needed support to reform police commissioners who want the system to be right,” Krasner said, “but who have been undermined by local prosecutors more interested in pandering to the police union for their own political ambitions than interested in having the police department be trusted and integrous. Another thing you can do is charge police officers who commit a crime instead of looking the other way.”