The Manhattan District Attorney's Office is keeping a list of police officers who have credibility problems as witnesses on the stand but is refusing to make it public, an attorney alleges in a challenge to the DA's refusal to provide the list under the Freedom of Information Law.

In a suit filed in Manhattan Supreme Court, criminal defense attorney Andrew Stengel says he has personal knowledge of such a list from his previous stint as a prosecutor in Manhattan DA Cyrus Vance Jr.'s office and from statements that a prosecutor made during criminal proceedings for one of Stengel's clients. 

Stengel's client, who is not named in court papers, was charged with a criminal count based on the observations of two police officers who said the defendant committed an offense against two women.

But the two alleged female victims denied that the defendant committed a crime, according to the suit.

While arguing with the prosecution at a bench conference in February about submitting an audio recording of the officers who arrested Stengel's client, which the attorney argued was evidence that his client was framed, Assistant District Attorney Jeffrey Levinson approached the bench and said his office should be given an opportunity to investigate the arresting officers in the case.

Then, according to the suit, Levinson told Criminal Court Judge Lyle Frank that the Manhattan DA's office keeps a list of officers who have been given findings of “adverse credibility”: officers “that have been found to testify falsely,” Levinson told the judge, according to the suit. 

Stengel said that during his time as a prosecutor, his bureau chief let him know on two separate occasions when a police witness might have credibility problems. In one case, Stengel was told that a police witness was under investigation for a ticket-fixing scandal; in another, he was told that a police witness for a driving-under-the-influence case propositioned an arrestee.

These types of disclosures were colloquially referred to as the “naughty list,” Stengel alleges.

Stengel filed a FOIL request for the Manhattan DA's list of officers with adverse credibility findings but Assistant District Attorney Thandiwe Gray told him that no such list exists but that it does maintain information on adverse credibility findings.

In an Article 78 petition challenging the Manhattan DA's denial of the FOIL request, Henry Bell, who represents Stengel in the challenge, argues that adverse credibility rulings are made in open court and thus have already been publicly disclosed.

Bell also argues that the information was not gathered in preparation for trial, which refutes the DA's argument that it constitutes a work product that is exempt from FOIL; and that the information has already been disclosed to a third party, which waives privilege.

“Instead, the DA's office adopted a sue-me attitude and has fought to protect the disclosure of records that might hamper criminal prosecutions,” Bell said in court papers. “This can only serve to corrode the public trust in the fair operation of the criminal justice system.”

Danny Frost, a spokesman for the Manhattan DA's office, said the office will review the petition but did not comment further.

Unlike a finding that an officer committed perjury, an “adverse credibility” ruling is not a criminal offense, Police Commissioner James O'Neill explained in an op-ed for the New York Daily News.

In the op-ed, O'Neill also explains that, in 2014, his predecessor William Bratton told federal and state prosecutors' offices in the city to inform the NYPD when there has been an adverse credibility finding against an officer.  

Last year, the state's Justice Task Force, of which Chief Judge Janet DiFiore serves as chairwoman and Vance is a permanent member, announced a new rule for trial judges to inform prosecutors and defense attorneys of their responsibilities to disclose exculpatory material to the defense, which took effect this year.