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Nassau police exposed informant in open court, settled $305,000 lawsuit

An informant in 2012 filed a federal lawsuit

An informant in 2012 filed a federal lawsuit charging that Nassau police had broken its promise to protect his identity from a homicide suspect, who authorities said was a member of a notorious criminal gang. Credit: Newsday / John Paraskevas

When a man called a Nassau County crime-tip hotline in 2010 with information on the whereabouts of a homicide suspect, police promised him protection in exchange for his help.

The man did his part, and his cooperation led to the suspect's capture. But the arresting detective later revealed the informant's role in open court, exposing him to threats of violent retaliation. Although the detective did not name the informant, a Nassau County prosecutor prompted him to identify the tipster as the rear-seat passenger in a vehicle carrying the suspect when he was collared.

The informant in 2012 filed a federal lawsuit charging that Nassau police had broken their promise to protect his identity from the killer, a member of a notorious criminal gang. The lawsuit also faulted the county for not properly instructing police on how to keep its informants safe. The county settled the lawsuit in September 2014 for $305,000.

The case, which has not previously been reported, highlights the importance of safeguards when it comes to handling informants and points to weaknesses in an area where Nassau law enforcement has been resistant to outside scrutiny.

On several occasions between the time the informant filed his federal lawsuit and when it was settled, Newsday made public records requests to Nassau police and prosecutors for copies of their written guidelines on informant use, only to be told none existed. In May, a police commander said that some written rules did exist, but the department has not produced them.

Alexandra Natapoff, a professor at Loyola Law School who has done extensive research on the role of informants in the criminal justice system, said that for Nassau to pay out such a substantial sum suggests that either an enforceable agreement likely existed between the informant and police, or "the government itself felt that a very bad mistake had been made."

The county attorney's office did not respond to requests for comment.

The informant's case proceeded entirely under a court-ordered seal, and a database that catalogs federal cases does not even identify the county or its police agency as defendants: The parties are listed simply as Sealed v. Sealed. Newsday asked the judge in the case to provide records with all identifying information on the informant removed, but he declined to do so, citing opposition by the attorneys involved.

Merrick attorney Andrew Campanelli, who represented the informant in the case against Nassau and now has a contract with the county for legal work, declined to be interviewed for this story.

Although the Nassau Legislature approved the settlement at a public meeting, it held no discussion. And the public would have had no idea what was being decided because the agenda for the meeting referenced a different federal case against the county, not the one involving the informant. Agenda records on the county's website still give the wrong case number.

A Newsday reporter uncovered the case while reading county financial documents that included a summary of the incident, which had been produced in an attempt to pay the settlement costs with bond debt.

Given the secrecy surrounding the case -- and the absence of information on what rules guide informant use in Nassau -- it's impossible to give a full account of how law enforcement left a man marked for revenge and taxpayers forced to pay for the mistake.

What's clear is that a fundamental rule of handling informants was violated, and the county has thus far kept that fact secret.

Local officials have maintained they can't provide even general information on their use of informants because doing so could put cooperators at risk. In the case of the exposed informant, that's a self-serving argument, said Michael Levine, a former DEA agent who consults with law enforcement agencies on informant use.

"The only reason for secrecy is to hide what you did wrong," Levine said.

Informant outed

The informant's case arose from a 2010 Long Beach shooting that involved a dispute between neighbors over dogs. The suspect fled New York State immediately after the shooting. Police tracked his cellphone to Virginia but soon lost the trace, according to the trial transcript.

Three weeks later, the informant called a Nassau crime-tip hotline. Detectives headed south, including department veteran Milton Aponte, who had been with the homicide squad 15 years. Police had solid information on where to find their suspect -- who would ultimately be convicted of first-degree manslaughter and sentenced to 30 years in prison -- and the department's informant received $4,000 in tip money.

The informant was then outed during the 2011 murder trial when Nassau Assistant District Attorney Melissa Lewis was questioning Aponte on details of the arrest, which followed a vehicle stop. Aponte told the courtroom that the murder suspect was in the passenger seat of the vehicle, which was being driven by a woman, and that there was another male passenger in the back.

Lewis asked Aponte whether he knew the identities of the driver and rear-seat passenger before the vehicle stop and Aponte told her that he did. "How is that?" Lewis asked. "Through the tip," Aponte said. Lewis then asked whether the female driver or the male in the backseat was the individual who "assisted you in finding" the suspect.

"Yes," Aponte said.

"That would be the male?" Lewis asked.

"Yes," Aponte said.

A police department spokesman said Aponte declined to be interviewed for this story. Glenn Ciccone, president of the Nassau County Detectives Association, blamed Lewis for asking Aponte about the tipster.

"This was a prosecutorial blunder that caused my detective to give up information," Ciccone said. "He's under oath and he's required to answer questions. He was put in that position by the prosecution's direct questioning."

The district attorney's office, which at the time was headed by now-U.S. Rep. Kathleen Rice, declined to make Lewis available to answer questions.

Chief Assistant District Attorney Albert Teichman emailed a statement that said his office strives to protect witnesses and informants whenever possible.

"The DA's office was not sued and took no part in any settlement negotiation or agreement," Teichman said. "Ms. Lewis is one of our best prosecutors and her trials have resulted in the convictions of some of the most dangerous criminals in the county."

Aponte again identified the informant when questioned by an attorney representing the suspect. Aponte said that during the arrest, he initially went to the rear passenger and brought him to the ground outside the vehicle before turning his attention to the suspect. The rear passenger was handed over to U.S. marshals, who were at the scene.

The defendant's attorney, Jeffrey Groder, asked Aponte whether the man "was the person who actually tipped you off as to the location" of the suspect.

"Correct," Aponte said.

Groder said he did not recall prosecutors informing the court of a need to keep testimony about the tipster confidential. Groder said when he asked Aponte about the rear passenger, he was just following up on a point the prosecutor had raised during direct examination.

"It just kind of happened," Groder said. "It was a very matter-of-fact thing."

Target of threats

A Newsday reporter learned of the case only because the county sought to issue a bond to cover the cost of the informant's settlement, and approval was needed from the Nassau County Interim Finance Authority. The county attorney's office provided a summary of Confidential Informant v. County of Nassau to NIFA, which considered the matter in January.

The summary was one of seven posted online describing various judgments and settlements that county officials hoped to pay for by borrowing money. NIFA voted against approving bonds to pay for the seven settlements.

The tip line the informant contacted was Nassau County Crime Stoppers, according to the summary. He later testified at a deposition that police promised to keep his role as an informant secret.

The informant and police developed a plan to capture the homicide suspect while also making it appear as if the informant was being apprehended at the same time, leading the suspect to believe that nobody at the scene of the arrest had cooperated with the police, the summary states.

After being identified in court, the informant became the target of threats, according to the summary. Revenge seekers posting to Facebook called for street justice, and one commenter wrote that the informant needed "a nice buck fifty across the face," a reference to a cut that requires 150 stitches. The summary does not say whether any of the threats were carried out.

The sparse summary prepared for NIFA is the only publicly available document that gives an account of the federal lawsuit. Additional records provided by the clerk of the Nassau Legislature identify the informant as John Doe, and the defendants named are Nassau County, the county's police department, Aponte, Ronald Walsh, John Lopiccolo and Robert Nardo.

Walsh, Lopiccolo and Nardo are Nassau police officers, and Walsh is also the commanding officer of the Nassau County Police Academy, according to an online profile. The clerk's records do not describe the allegations made against the men. A police spokesman said the department and the officers would not be answering questions about the case.

The federal lawsuit itself proceeded entirely in secret, despite a federal court policy that strongly discourages judges from sealing entire civil case files.

In 2011, the Judicial Conference of the United States, which sets guidelines for the federal courts, adopted a policy that such broad sealing is only "justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives (such as sealing discrete documents or redacting information), so that sealing an entire case file is a last resort."

Newsday asked U.S. District Court Judge Leonard D. Wexler, who handled the case, to unseal records after removing personal identifying information on the informant. Newsday also asked Wexler for a copy of any sealing order describing the basis for the secrecy.

In a reply letter, Wexler said he'd held a phone conference with attorneys who "strenuously oppose your request that any aspect of this matter be unsealed, even in redacted form, and each side presented detailed and extensive reasons on the record."

The judge provided no sealing order and denied the request for redacted case records.  

Jane Kirtley, a professor at the University of Minnesota and director of its Silha Center for the Study of Media Ethics and the Law, said Wexler's decision is "clearly inconsistent" with the policy of the judicial conference and "contrary to Supreme Court precedent."

"The idea of closing an entire civil proceeding is anathema to the concept of public oversight of the judicial system," Kirtley said. "A much less restrictive alternative exists, and the most obvious one is to redact identifying information, assuming that any additional harm could actually be done."

'Culture of secrecy'

In its request to Wexler, Newsday specifically asked for records that detail the informant's claims against authorities and the responses to those claims. Given the judge's decision not to release information, it's unclear whether any written guidelines on informant handling were violated.

Having written rules on informant use is widely considered a best practice in law enforcement. In 2012 and again in the months before the settlement in 2014, Newsday asked the Nassau Police Department and district attorney's office for copies of their written rules for handling informants. Both agencies said they could not provide any written rules because they had none.

In May, a police commander responding to a Newsday story on a veteran narcotics detective under investigation for his handling of an informant said that, in fact, some procedures regarding informant use exist on paper, while others have been established only verbally.

The commander, Steven Skrynecki, acknowledged the value of having a more comprehensive written policy and said the department was examining practices nationwide to develop formal guidelines. Newsday asked for the written procedures that Skrynecki said were already in place. They have not been provided.

The uncertainty over the existence of written guidelines comes as no surprise to Natapoff, the law professor, who said "the culture of secrecy that surrounds informant use creates all kind of public policy and criminal justice dysfunction."

"All too often the government will tell us they have no rules or records," Natapoff said. "This is an extraordinary assertion that we would not accept in any other area of public policy, but then it will turn out that they do in fact have rules and records that they just don't want the public and the courts to find out about, an equally astounding assertion."

Wrong case number

On Sept. 22, 2014, four months before NIFA voted against approving bonds to cover the cost of the informant's lawsuit, the Nassau Legislature unanimously approved the $305,000 settlement.

The case number on the agenda prepared and made public for the meeting was incorrect, referring instead to another federal case against the county involving charges of false arrest and police brutality.

A transcript of the public meeting shows that immediately before voting on whether to settle the informant's case and seek bond financing to cover the cost, Presiding Officer Norma Gonsalves amended the official record to include the correct index number. It was not read aloud and agenda records with the incorrect number are still on the legislature's website, effectively concealing the existence of a sealed federal lawsuit against the county from the public.

Before the legislature voted, Gonsalves asked if any members had questions for a county attorney who was present. She expressed relief when none did.

"Anyone? No questions?" Gonsalves said. "Lucky."

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