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Justices set new, laxer rules for obtaining police discipline records in court


Justices set new, laxer rules for obtaining police discipline records in court

Mar 31, 2023 | 3:14 pm ET
By Nikita Biryukov
Justices set new, laxer rules for obtaining police discipline records in court
Justice Fabiana Pierre-Louis said there’s no reason why criminal defendants should have less access to police records than the general public. (Amanda Brown for New Jersey Monitor)

The New Jersey Supreme Court this week set new rules for criminal defendants seeking to obtain internal affairs records during discovery, replacing old rules the court found placed defendants at an unfair disadvantage.

Under the new framework, a defendant can file a motion seeking specific types of information in an officer’s internal affairs file — like prior shootings, for instance — and argue that information is relevant to their case.

If a judge agrees that the information would be relevant, they would then review the records and provide relevant portions to the defense and prosecutor, subject to some redactions.

The new framework replaces a 25-year-old predecessor used by some courts that required defendants to provide evidence showing it was likely internal affairs records contained information relevant to their case before a judge would review an officer’s records.

For defendants, that system often ended in a paradox reminiscent of Joseph Heller’s “Catch-22” — they could not obtain records without knowing what was in them, and they could not know what was in the records without obtaining them.

CJ Griffin, a transparency advocate and attorney who filed a brief in the case as a representative of the Association of Criminal Defense Lawyers of New Jersey, said the old way of seeking internal affairs “used the wrong standard.”

“It places a burden upon the defendants to identify contents of a file that’s completely secret and that they don’t even know about in order to get the file,” said Griffin, who has represented the New Jersey Monitor in several legal matters.

The American Civil Liberties Union of New Jersey, the Office of the Public Defender, and the Office of the Attorney General also filed briefs in the case.

The court predicted many defendants would be able to meet the new, lower standard imposed on the disclosure of internal affairs records.

The case that spurred the change involves conflicting accounts of an East Orange police shooting.

Police claimed Andre Higgs fatally shot his romantic partner before being shot by police. Higgs said he had taken a gun from his partner and was shot while trying to surrender to police, while the shooting caused him to involuntarily discharge the gun, killing her. Higgs was charged with her murder.

Higgs’ attorneys had sought the internal affairs records of East Orange Police Officer Kemon Lee on the grounds that Lee had previously shot his gun while on duty and those incidents are relevant to Higgs’ case.

A trial court judge denied Higgs’ access to the records, and an appellate panel rejected his arguments without discussing them. A jury found Higgs guilty of murder, aggravated assault, and weapons charges.

The Supreme Court ruling reverses those decisions, orders a new trial, and says Higgs’ attorneys can question Lee about his prior shootings.

The new ruling also overturns trial court decisions in Higgs’ case that allowed a detective to opine on the presence of a gun in police dash camera footage and that allowed prosecutors to use Higgs’ past criminal convictions, some decades old, to impeach his credibility.

The Supreme Court’s decision follows other opinions and administrative actions that have increased the public’s access to police disciplinary records, including annual releases of major police disciplinary records mandated by a directive issued by former Attorney General Gurbir Grewal. The Attorney General’s Office has not released 2022’s records yet.

Meanwhile, the high court in March 2022 unanimously ruled that internal affairs records, while exempt from disclosure under the Open Public Records Act, can be released to the public under the common law right of access if the public interest outweighs privacy concerns.

The court cited the increased access as a reason for the policy shift it made Thursday.

“There is no logical reason why criminal defendants, whose life and liberty are at stake, should have less access to those records than the general public,” Justice Fabiana Pierre-Louis wrote for the court.

Open government advocates are seeking further improvements. They hope another active Supreme Court case, Gannett v. Township of Neptune, will require that governments pay attorney’s fees for lawsuits that successfully force the disclosure of public records under the common law right of access.

“We see that as a big one because, without a fee-shifting mechanism, public agencies, police departments can just deny access to internal affairs reports and know that no one could afford to sue for them,” Griffin said.

The Open Public Records Act includes a similar fee-shifting provision.

Advocates are also eyeing a bill that would make police disciplinary records subject to disclosure under OPRA, which would also allow plaintiffs to recoup attorney’s fees after successful public records lawsuits seeking police disciplinary records.