A Screwy Sentence, Or Plea Bargains Don't Matter
Friends were surprised that I crossed the line to represent Jason Zullo, an East Haven cop accused of harassing Hispanics while on duty. And when he was sentenced to two years in prison by a federal judge, some of those same friends thought he wouldn’t be going to prison long enough.
But the decision to represent him was easy. Truth be told, I view him as a victim of our failure to have a sensible immigration policy.
Jason and three other East Haven cops were indicted and accused of being bullies with badges in East Haven, a town not exactly known for its racial and ethnic sensitivity. Among the charges were claims that they targeted Hispanics for stops, falsely arrested Hispanics and a crusading priest and used unreasonable force.
I put kids through college suing police officers for violating the civil rights of people of all colors, ethnicities and races back in the days when the Justice Department couldn’t care less about police misconduct.
In recent years, federal judges have slammed the courthouse doors in the face of ordinary civil litigants suing cops by creating a doctrine nowhere to be found in the U.S. Constitution — qualified immunity.
This pernicious judicial doctrine is the product of an activist and conservative federal judiciary that apparently believes that the nation’s lawmen are engaged in too important a set of affairs to be accountable to ordinary citizens.
Qualified immunity empowers a judge to throw a case out of court before a jury ever sees it, if, in the judge’s eye, it is a close and questionable call about whether a cop used too much force, falsely arrested or stopped someone unlawfully. In sum, it tilts the courthouse floor in favor of police officers, giving them the benefit of the doubt.
Qualified immunity protects all but the patently incompetent, the cases say.
In the East Haven case, cops stopped drivers who they suspected were driving cars with illegal plates. They had suspicions that plates from several states, including Pennsylvania, were traded among illegal immigrants. So they stopped drivers with Pennsylvania plates after checking to learn the plates did not belong on the cars they stopped. They searched a shop they thought sold illegal plates.
In a civil case, the officers would have had an articulable suspicion that something was wrong, the legal standard for a stop. They might also have arguable probable cause to detain people, the legal standard in the federal courts for a seizure of a person.
The officers’ private feelings, their subjective thoughts and impressions, would not be relevant for determining whether the stop was justified. The law evaluates an officer’s conduct from what is called an objective standard — do the observations the officers made support the stop?
There’s no doubt in my mind that stops and searches were objectively reasonable. It is an open secret in Connecticut’s federal courts that plaintiffs lose almost every claim they raise against the police for unreasonable searches and seizures. Qualified immunity and the various exceptions to the warrant requirement for searches and seizures have made litigation of Fourth Amendment claims in the federal courts a fool’s errand.
But in the East Haven case, an activist priest and students at the Yale Law School persuaded federal prosecutors to turn the law inside out. Now the officers’ state of mind would be placed front and center because, in a criminal case, the police officer’s specific intentions mattered. Their emails and text messages would be read. Any wisecrack about a detainee was suddenly admissible evidence of racial animus.
This was a political prosecution plain and simple. Were I a cop, I’d be terrified to stop a person for driving an unregistered car; what if they are an illegal immigrant, and I once made a wisecrack? I could be going to prison, too, just like Jason Zullo.
Jason Zullo never pleaded guilty to race-based charges. He entered a plea to one count, obstruction of justice, involving another Italian-American. That didn’t stop Justice Department public relations men from chest-thumping about race and ethnicity, however, claiming that my client’s plea had something to do with race. The cynicism of it all is breathtaking.
Mr. Zullo tried to stop a motorcycle operator who violated the rules of the road. When the driver fled and tried to evade, Mr. Zullo gave chase, just as he was trained to do. When the driver of the bike swerved to evade Mr. Zullo, he crashed his bike. He told a New Haven officer at the scene he lost control of his bike. In the course of the chase, Mr. Zullo’s cruiser and the bike collided.
After the feds got their hands on the biker, he told a judge Mr. Zullo rammed him and tried to kill him. It was a preposterous claim.
The only thing Jason Zullo pleaded guilty to was failing to mention any collision between his car and the motorcycle in a police report. Period. Federal prosecutors knew that was all he would plead to. They accepted the deal.
Two of Mr. Zullo’s colleagues went to trial on the race-based charges and lost. Mr. Zullo did not go to trial.
At sentencing the other night, the feds could not talk enough about the trial they won against Mr. Zullo’s co-defendants, the trial Mr. Zullo was not present at, the trial he avoided when the feds agreed to let him plead to one simple count not involving race.
The judge before whom Mr. Zullo appeared for sentencing told Mr. Zullo he wanted to promote respect for the law by imposing a stiff sentence. He never paused to explain why punishing a man for a crime to which he did not plead guilty was just. He did not ask federal prosecutors why they were arguing for prison time for crimes for which no guilty finding was made.
The law was not honored; fair play was mocked. Rather than promote respect for the law, the law was shown to be a political tool, putty in the hands of the Justice Department when it seeks to score a point or two at the expense of a street cop, but a dead letter in the hands of ordinary citizens looking for money damages.
I am proud to have represented Jason Zullo. It’s the law that fills me with shame and regret.