Last February, NYPD Detective Michael Bergmann filed a report accusing Pedro Barbosa of attempting to run him over with a car. In court, Bergmann gave a dramatic recounting, telling a grand jury that Barbosa had “locked eyes” with him before speeding forward so fast that the car had “left skid marks,” and that he’d injured his elbow diving away from it.
Security footage later proved that Bergmann had fabricated the whole story, and he eventually pleaded guilty to perjury, making a false statement and official misconduct. Last week—despite unequivocal proof that the then-cop had tried to send an innocent man to prison for more than 10 years—Brooklyn Supreme Court judge Danny Chun dismissed prosecutors’ request for a one-year sentence and instead gave Bergmann a single day in jail, already served, and four years probation. All in all, the case is a sadly typical example of police lies and abuse, and how the criminal justice system is actively complicit in both.
Bergmann’s crime is one so common that it even has a punny name, “testilying.” Secret lists of cops considered too unreliable to serve as trial witnesses were released by District Attorneys’ offices in the Bronx, Queens, Manhattan and Brooklyn last last year. Seven of the listed Brooklyn officers had collectively been sued more than 40 times, resulting in settlements that cost the city an estimated $1.6 million. (Bergmann, who did not appear on that list, nonetheless was a defendant in a 2015 police misconduct lawsuit settled by the city for $175,000.) Nearly all these named—a fraction of the unknowable number of cops who lie on the job—are still employed by the NYPD, despite prosecutors and judges considering them untrustworthy. On Friday, Manhattan Civil Court Judge W. Franc Perry ruled that city prosecutors aren’t required to provide the names of blacklisted cops in response to Freedom of Information Act requests.
Of course, police who lie don’t tend to do so against those with power or money. They instead target the most vulnerable citizens, whose innocence claims are least likely to be believed because of racist and classist stereotypes about criminality. Bergmann’s target was a Latino indigent defendant, whose court-assigned lawyer thankfully undertook an investigation that uncovered video footage proving Barboa’s innocence. That was after Barboa had spent five months in jail, awaiting trial. Without the surveillance video, he’d likely have spent decades in prison.
But even with video that proved Bergmann had acted criminally, and under the color of his legal authority, it was no surprise when Chun shrugged. The judge had previously given no-jail sentences of probation to two cops who admitted having sex with a teenage girl while on duty; to an ex-officer captured on video shooting a rival in the mouth and planting a knife at the scene; and to a cop who fatally shot an unarmed man who’d committed the crime of walking into a stairwell. In each case, the judge ignored prosecutor requests for jail time.
That spirit of forgiveness was absent when Chun sentenced Marcell Dockery, a black teenager who set a mattress on fire in his apartment building, accidentally killing a responding officer who was dispatched to the scene. The judge gave the teen a sentence of 19 years to life—a year more than prosecutors had requested.
New York’s new bail reform was undertaken because of judges like Chun, as well as the many prosecutors, police and other criminal justice players who perpetuate a criminal justice system that is criminally unjust. The new bail law, which took effect New Year’s Day, eliminates cash bail for most misdemeanors and nonviolent felonies—roughly 90 percent of the cases that come before the criminal court. The new policy ends a system that forced defendants who couldn’t afford to pay bail to await their trials in jail, even as wealthier defendants were able to return home.
Opponents of bail reform are now in the midst of a campaign to convince the public that the new rules will flood the city with dangerous criminals, promoting stories that play off fears of mentally ill homeless people, street gangs, and—most notably—valid concerns about increasing anti-Semitic hate crimes. What gets left out of that coverage is the fact that the defendants in each of those cases would’ve been released from jail under the old bail laws if they’d had the resources. What’s more, judges can still impose bail on defendants facing violent felony or sex crime charges.
Reform extends the idea of “innocent until proven guilty” to the overwhelmingly poor and disproportionately black and brown people who end up in the system. Bail was never supposed to be punitive, but to the extent that it keeps people jailed because they don’t have money, it specifically punishes the poor. The only difference between the years preceding bail reform and the weeks that have followed is that now, poor offenders don’t have to wait longer than their wealthy peers to get out of jail ahead of their trials. From that angle, it sure seems like critics of bail reform aren’t afraid of violence, but of their own imaginings about the innate criminality of both poor folks and people of color—blacks and Latinos—that twist allegations of criminality into evidentiary proof.
An oft-cited argument for bail reform notes that, despite conservative scaremongering, it actually makes communities safer. Letting folks go home to their families minimizes the collateral consequences of arrest—such as getting fired from a job—which lend themselves to desperation and criminal behavior. Bergmann’s case, in its everydayness, suggests bail reform is also a kind of safety measure against the criminal justice system itself. In an institution that primarily serves the wealthy and white, bail reform protects against some of the cruelties and abuses it has long inflicted upon poor people of color.