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#3083: Safir Denies Release of Dorismond Record Broke Law (fwd)


April 1, 2000 NY TIMES
Safir Denies Release of Dorismond Record Broke Law 

At a contentious hearing, police officials and city lawyers     
yesterday denied that the Giuliani administration broke the law       
in releasing the sealed juvenile record of Patrick M. Dorismond after  
he was killed by the police last month. Police Commissioner Howard Safir
told state lawmakers investigating the release that the police had made
similar disclosures of sealed records in the past without quarrel. 
He said that city lawyers had decided in those cases that the state
law that prohibited the release of juvenile records did not apply after
The person died. Mr. Safir said that he and Mayor Rudolph W. Giuliani
had relied on that legal advice in deciding that the release of Mr.
Dorismond's Robbery arrest as a 13-year-old would not violate the Family
Court  Act, which prohibits the release of the juvenile records of
persons whose criminal cases were later dismissed.  "All the other three
cases passed without comment," Mr. Safir said. He said that in each of
those cases the sealed information had been released about citizens who
had, like Mr. Dorismond, been killed by  the police: two under a former
commissioner, William J. Bratton, and one during his own term.       
Mr. Safir did not elaborate on why he believed the release of Mr.      
Dorismond's record had, in comparison, provoked outrage among  some
people and a fact-finding hearing by state legislators. But other     
aides to Mr. Giuliani have previously suggested that much of the      
uproar has been politically motivated. Neither the commissioner's
testimony nor that of the corporation counsel, Michael H. Hess, appeared
to persuade many legislators who attended the special hearing ordered by
the Assembly speaker, Sheldon Silver, a Democrat, to investigate whether
Mr. Giuliani had violated state laws on confidentiality. Assemblyman
Joseph R. Lentol, a Democrat who is chairman of the Codes Committee,
said that after hearing the testimony of the city officials and that of
other legal experts, he was convinced that the  city had violated the
law.  "The law is pretty clear in my opinion that records remain sealed
 whether someone dies or not," he said.  Mr. Bratton said in an
interview that he had no recollection of ever releasing sealed
information and did not remember ever hearing city lawyers propose that
juvenile and other sealed records were  releasable after someone died.
This argument they are using, that is a new one to me," he said.        
Mr. Dorismond's arrest record, including his robbery arrest as a     
juvenile, was released by Mr. Safir, with Mr. Giuliani's permission,    
during a meeting with reporters at City Hall on March 16. The     
meeting occurred several hours after Mr. Dorismond, an unarmed      
security guard, was shot during a scuffle with an undercover police    
officer. The mayor has said the release of the information helped to
balance  the media portrayals of the incident. He said some of arrests  
demonstrated that Mr. Dorismond had "a strong propensity for         
violence" that was relevant to the question of what had happened on    
Eighth Avenue between Mr. Dorismond and the police officers. But many
critics have said the mayor's main motive was to smear Mr. Dorismond and
somehow make his death seem less  objectionable. Mr. Safir said
yesterday that the city viewed the release of this sort of information
as a rare exception. But he added that in releasing the record,
officials hoped to avoid a repeat of what happened in 1992.That year,
the commissioner said, unbalanced misinformation about the police
shooting of a man in Washington Heights, Kiko Garcia,led to violent
disturbances in Upper Manhattan.Assemblyman Roger L. Green then asked
Mr. Safir whether that rationale still seemed valid, given the deep
anger the release of Mr. Dorismond's record had provoked. Mr. Safir
said, "I think if you look at the Kiko Garcia case, where Washington
Heights burned for three or four days, I think it was the correct
decision." During his testimony, the city's top lawyer, Mr. Hess, said
that the  Family Court Act did not specifically prohibit the release of
sealed records after death. Furthermore, Mr. Hess said, a review of   
legislative records indicated that the lawmakers who adopted the     
sealing provision more than two decades ago only intended to protect
people from harm that could occur while they were alive, such as
discrimination in employment. "The cold words of the statute do not tell
the whole story," said Mr.Hess, who at several points cited the legal
opinions written by people not traditionally viewed as friends of the
Giuliani administration, such as Fritz Alexander,a former judge who had
served as a deputy mayor under David N. Dinkins.  But several lawmakers
and legal scholars who testified characterized Mr. Hess's interpretation
as tortured. They said there was no significance to the fact that the
statute did not specifically prohibit the release of sealed information
after death. "The act requires the sealing of records in certain cases,
period," Mr. Lentol said. Merrill Sobie, a professor at Pace University
Law School, said, "I  have never heard of a sealed court record in any
court being unsealed or released without a court order." The hearing, in
an auditorium at the John Jay College of Criminal Justice, was called to
decide whether the law needed to be amended, perhaps by adding a penalty
to sanction those who violate it. Only 2 of the 20 legislators who
attended were Republicans, David Seaman and Willis H. Stephens Jr., and
they spoke infrequently, so Mr. Safir and Mr. Hess spent much of the
hearing facing questions and comments from Democrats.  "No single
person, no matter how powerful a station in life they have attained, may
stand above the law," said Helene E. Weinstein,chairman of the Judiciary
Committee. Mr. Safir said that sealed arrest information had also been
released after the April 1994 killing of Ernest Sayon, the January 1995
death of Anthony Rosario and the April 1997 death of Kevin Cedeno. 
 After the recent incident, Mr. Safir said, he received a staff memo 
that included Mr. Dorismond's arrest record, which he used to brief the
mayor. Although Mr. Dorismond had been arrested as an adult for assault
and gun possession, he had pleaded guilty in each of those cases to only
disorderly conduct. The commissioner said that, in their discussions, he
and the mayor recalled prior incidents in which sealed records had been
released and that city lawyers had raised no objection at the time. Mr.
Giuliani has said he then made the ultimate decision to release the
sealed information. Mr. Hess said he was contacted after the release to
reconfirm that the city's position was a lawful one.