4539 D4N8FLO1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 DAVID FLOYD, et al., 3 4 Plaintiffs, 4 5 v. 08 CV 1034(SAS) 5 6 CITY OF NEW YORK, et al., 6 7 Defendants. 7 8 ------------------------------x 8 New York, N.Y. 9 April 23, 2013 9 10:05 a.m. 10 10 Before: 11 11 HON. SHIRA A. SCHEINDLIN, 12 12 District Judge 13 13 APPEARANCES 14 14 BELDOCK LEVINE & HOFFMAN, LLP 15 Attorneys for Plaintiffs 15 BY: JONATHAN MOORE 16 JENN ROLNICK BORCHETTA 17 COVINGTON & BURLING, LLP 17 Attorneys for Plaintiffs 18 BY: KASEY MARTINI 18 GRETCHEN HOFF VARNER 19 ERIC HELLERMAN 19 BRUCE COREY 20 20 CENTER FOR CONSTITUTIONAL RIGHTS 21 Attorneys for Plaintiffs 21 BY: DARIUS CHARNEY 22 SUNITA PATEL 22 BAHER AZMY 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4540 D4N8FLO1 1 APPEARANCES (Cont'd) 2 2 MICHAEL A. CARDOZO 3 Corporation Counsel for the City of New York 3 Attorney for Defendants 4 BY: HEIDI GROSSMAN 4 BRENDA E. COOKE 5 JOSEPH MARUTOLLO 5 MORGAN D. KUNZ 6 SUZANNA PUBLICKER 6 LINDA DONAHUE 7 LISA M. RICHARDSON 7 JUDSON VICKERS 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4541 D4N8FLO1 1 (Trial resumed) 2 JULIE SCHWARTZ, resumed. 3 DIRECT EXAMINATION (Cont'd) 4 BY MS. BORCHETTA: 5 Q. Good morning, Commissioner Schwartz. 6 A. Good morning. 7 MS. BORCHETTA: Your Honor, before I begin the 8 questioning, I just have one administrative item. After 9 reviewing the transcript from yesterday's testimony, I realized 10 that when we had moved to admit Plaintiffs' 112, although the 11 Court overruled the objection to admission, it was never 12 formally said that it was admitted. 13 THE COURT: Right. 112 is admitted. 14 (Plaintiffs' Exhibit 112 received in evidence) 15 MS. BORCHETTA: For the purpose of notice. 16 THE COURT: Right. 17 BY MS. BORCHETTA: 18 Q. Commissioner Schwartz, you testified yesterday regarding 19 the case file review that assistant advocates conduct, correct? 20 A. Yes. 21 Q. In reviewing the case file and determining whether to 22 recommend action on a substantiated CCRB case, assistant 23 advocates to not interview the subject officer, right? 24 A. Correct. 25 Q. But you may use the commanding officer's evaluation to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4542 D4N8FLO1 Schwartz - direct 1 judge credibility of the officer, right? 2 A. No. As I said yesterday, it's not for that purpose. 3 Q. I am going to refer you to your deposition in the Floyd 4 case. And this morning, for your assistance, I wrote at the 5 top of each of the depositions the name of the case so you can 6 find it. 7 Looking at your deposition in the Floyd case, at page 8 243, reading from lines 4 to 23, do you recall giving the 9 following answers to the following questions: 10 "Q. Would the recommendation from their supervisor go into 11 their credibility assessment?" 12 A. One second. 13 Q. 243. 14 A. I was on 244. I'm sorry. Thank you. 15 Q. Line 4 to 23. 16 "Q. Would the recommendation from their supervisor go into 17 their credibility assessment? 18 "A. It generally goes more to the type of discipline and the 19 appropriate penalty, unless it was that the person cannot be 20 trusted, very low recommend. I would take that into account 21 because the officer, the COs are, really sending me a very 22 important message by saying that. 23 "Q. So if they state something specifically into the officer's 24 credibility, you may take that into account? 25 "A. Or even if there were -- was a poor evaluation, I would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4543 D4N8FLO1 Schwartz - direct 1 use that to judge their credibility. If it was an outstanding 2 evaluation, that may be something that I may consider. But if 3 it were average to good, I would just use it on the other end." 4 Did you give that testimony? 5 A. Yes. 6 Q. And in the talking points prepared by the NYPD regarding 7 the CCRB's 2007 annual report, it was noted that the Department 8 Advocate's Office believes that when an officer is acting in 9 good faith, fairness dictates that that good faith should be 10 considered as mitigation by the CCRB investigator and the panel 11 and should favorably impact the evaluation of the officer's 12 credibility, right? 13 A. For recommendation of the level of discipline. 14 Q. But it says it should be considered -- 15 A. I don't know where you're reading. Can I have an 16 opportunity to look? 17 Q. It's on your screen. 18 MS. BORCHETTA: For the record, this is Defendants' 19 W13 that we are looking at. 20 A. For the record, as I said yesterday, just to make it clear, 21 I don't know if this was in response to the report or for the 22 City Council. And it says that, and I think it says in another 23 part, it's to the level of recommendation. 24 Q. You recall testifying yesterday about recidivism? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4544 D4N8FLO1 Schwartz - direct 1 Q. I want you to assume that an officer has a substantiated 2 CCRB complaint for which you recommend that he receive 3 instructions. OK? If that officer receives a second 4 substantiated complaint for the same conduct, you would 5 recommend the next highest level of discipline, right? 6 A. Not necessarily, but I would not recommend instructions 7 again. 8 Q. Instructions are the lowest form of discipline, right? 9 A. If someone received instructions and they commit the same 10 misconduct again on the same allegation, I would not recommend 11 that they receive instructions again. I can't say that they 12 would definitely get like, say, for example, a command 13 discipline, because what they did the second time could rise to 14 the level of charges and specifications. 15 Q. So you're taking issue with the next highest, right? 16 A. I am just saying I can't say for sure that would be what I 17 would recommend. 18 Q. But you can say for sure that you would not recommend 19 instructions again for an officer who had a second 20 substantiated CCRB complaint for the same conduct? 21 A. If he or she already received instructions on that. 22 Q. But if the officer receives a second substantiated 23 complaint for a different type of conduct, you may again 24 recommend instructions for that officer, right? 25 A. If it's separate, yes, I may. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4545 D4N8FLO1 Schwartz - direct 1 Q. Do you recall yesterday testifying about your knowledge of 2 how discipline is meted out at the command level? 3 A. That's a really general question. So no, I guess I would 4 have to say no. 5 Q. It's true that you do not have knowledge of how discipline 6 for an improper stop and frisk is meted out at the command 7 level, right? 8 A. I know, to the extent of cases that come through the 9 Department Advocate's Office, what we send back to the command 10 and what is returned to us. We don't close anything out until 11 we get back from the command that what they were instructed to 12 do was done. 13 Q. Is it your testimony that you do have some knowledge of 14 what happened at the command level in terms of meting out 15 discipline in stop and frisk cases? 16 A. If we send a case that involves a stop and frisk with a 17 penalty instruction, and I know that it's done because it will 18 come back from probably the ICO to my office, the Department 19 Advocate's Office, and I will indicate that the penalty was 20 taken or instructions were given. I also get a report, if the 21 person is to go to the police academy or to the legal bureau 22 for instructions, they send it back to us that it was done. So 23 to that extent I know that it was done. 24 Q. But you would agree with me at your deposition in this case 25 you testified that you had no knowledge of how discipline was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4546 D4N8FLO1 Schwartz - direct 1 meted out with respect to stop and frisks at the command level, 2 right? 3 A. I believe that question was things that did not come 4 through my office. 5 Q. All right. Why don't we look at your deposition and see if 6 it refreshes your memory. At the Floyd deposition, page 51. 7 Are you on page 51? 8 A. Yes. 9 Q. Lines 14 through 19, just read that to yourself. 10 A. It's exactly what I just said to you. That question refers 11 to if a sergeant observes a stop and frisk and what that 12 sergeant does at the command level, not cases that come through 13 the Department Advocate's Office. 14 Q. Reading from page 50 of your deposition in the Floyd case, 15 starting at line 16, through page 51, line 19.