Elected officials and public defenders are calling on Staten Island District Attorney Michael McMahon to drop his office’s charges against Jason Serrano, a man who accused an NYPD officer of planting marijuana while searching a car he was riding in. [Update: The D.A.'s office has decided to drop the charges; more details below.]
The demands come days after a judge vacated Serrano’s conviction citing body camera footage showing the apparent drug planting and police records, obtained by Gothamist/WNYC, showing the same officer had been disciplined for improperly invoicing drug seizures after arrests the same year.
Prosecutors never turned over these disciplinary records to Serrano. At the time of his arrest for drug possession, resisting arrest, and obstructing governmental administration, Serrano was injured. He said he eventually agreed to a plea agreement, which reduced his charges to just resisting arrest, to avoid going to Rikers in his debilitated state.
Jumaane Williams, New York City’s public advocate, criticized Serrano’s arresting officers and the Staten Island District Attorney’s office for “ignoring” the officers’ “egregious misconduct.”
“Both have willfully obstructed and denied justice without regard for the harm being caused, or consequences for the perpetrator of that harm,” Williams said. “That harm can never be entirely undone, nor can the erosion of trust that it perpetuates. Overturning Jason Serrano's wrongful conviction was a clear, if inadequate, necessity – now the case should be entirely dismissed and the officers involved face accountability."
In response to such calls, the Staten Island district attorney’s office said it had received and was reviewing the judge’s decision. The office also noted that it had previously cleared the officer in question, Kyle Erickson, of any criminal activity following an internal review.
“As always, RCDA remains committed to the fair administration of justice on Staten Island and will continue working tirelessly to keep our communities safe,” DA McMahon said in a previous statement.
Marion Elizabeth Campbell, one of Serrano’s attorneys at the Legal Aid Society, said she was “mystified and outraged” that the district attorney’s office appears to want to defend Erickson, who was previously accused of planting drugs earlier that year during a separate car stop that was also caught on police body camera.
“We again call on prosecutors to dismiss this case at once in the interest of justice,” she said.
Several other elected officials expressed outrage at the incident, which they argue points to the need to reform New York’s law on wrongful conviction claims.
Currently, New York judges can vacate a guilty trial verdict if a defendant has come forward with newly discovered evidence proving their actual innocence. But New York’s high court has held that judges do not have this power when it comes to guilty pleas, except in cases when the defendant has exonerating DNA evidence.
In this court decision, Judge Tamiko Amaker noted that Serrano’s attorneys' claims that the NYPD body camera footage proved Serrano was actually innocent was not a ground for relief available to Serrano.
Still, the judge vacated the conviction anyway, holding that the video and the withheld disciplinary files showed that Erickson’s car search may have violated Serrano’s constitutional rights.
“Jason Serrano has airtight evidence--a video of police planting drugs on him--yet New York's broken law bars him from claiming actual innocence because he pleaded guilty,” said Dan Quart, a Manhattan Assemblymember, who is sponsoring the bill. “A judge was able to vacate his conviction based on violations of ‘search and seizure’ but that still doesn't fully clear his name.”
To give judges more latitude to vacate other potentially wrongful convictions on the basis of actual innocence, Quart and other progressive Democrats in Albany are pushing for the Challenging Wrongful Convictions Act, which would allow defendants to have their convictions vacated based on new evidence not provided or available at trial.
“There’s plenty of other cases where constitutional violations aren’t caught on tape. Other states allow relief to people who plead guilty without DNA,” said Brooklyn State Senator Zellnor Myrie, the bill’s senate sponsor. “There is no reason why we shouldn't as well. It sickens me how big of a factor chance was in this case.”
Unlike Public Advocate Williams, Assemblymember Quart, and State Senator Myrie, Deborah Rose, Staten Island’s only Democratic council member, did not respond to questions about whether she believes Staten Island prosecutors should drop their charges against Serrano.
In an email Rose did, however, voice support for the Challenging Wrongful Convictions Act.
“Common sense dictates that Mr. Serrano should be considered innocent of resisting arrest and obstruction of justice in light of the fact that those two charges were instigated by a drug possession arrest that has been deemed improper by a judge,” she said.
Since the incident, DA McMahon’s office noted that Erickson has not made another arrest in Staten Island. Erickson did not respond to requests for comment submitted to his union.
In a statement, the NYPD said Erickson has retired from the force.
Update: The Staten Island district attorney's office told Gothamist/WNYC this morning, "After reviewing the judge’s recent decision in this matter, and considering changes to the law over the last few years, we have made the decision to dismiss the case against Jason Serrano in the interest of justice."