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A Powerful Legal Tool, and Its Potential for Abuse

For years, prosecutors in New York have been using what are known as material witness orders to compel testimony from reluctant witnesses in criminal trials. But has the power to persuade led to coercion and tainted convictions?

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The Brooklyn skyline in May 2013. For years, prosecutors in New York have been using what are known as material witness orders to compel testimony from reluctant witnesses in criminal trials. But has the power to persuade led to coercion and tainted convictions? (Spencer Platt/Getty Images)

Aug. 16: This story has been updated to include a recent decision by the U.S. Court of Appeals for the Second Circuit in the case of a Queens woman who says she was illegally held as a material witness in 2008.

The 20-year-old document – labeled the Hotel Custody log by the Brooklyn District Attorney’s office – is not easy to decipher. It contains a list of New York City hotels beside columns labeled “Date In” and “Date Out.” There are names of individual prosecutors and the units they worked for at the district attorney’s office.

A spokesman for the district attorney’s office, asked to explain the document, refused to say anything. And a judge recently placed the document under seal at the request of lawyers for the city.

Ruddy Quezada and his lawyers, however, are pretty sure they have figured the document out, and that it – in particular the third line from the bottom – holds a key to Quezada’s freedom after more than 20 years behind bars for a murder he insists he didn’t commit.

Quezada’s lawyers assert that the document is a record of witnesses in criminal trials held in hotel rooms by the district attorney in the winter of 1993. Some of the witnesses were prisoners released to testify and held overnight in custody. Others were witnesses who were fearful for their safety.

But some on the list were held under what are known in the criminal justice system as material witness orders, men and women who were deemed “uncooperative,” arrested by detectives and not freed until they agreed to testify.

Most specifically, Quezada’s lawyers say that on March 11, 1993, a man named Sixto Salcedo was checked into the Holiday Inn Crowne Plaza. Salcedo, they say, was released the following day, after he agreed to do what prosecutors wanted: testify that he had seen Ruddy Quezada shoot dead a man named Jose Rosado on the streets of Brooklyn.

Salcedo did testify, and Quezada was convicted. But a lot has happened since – Salcedo has recanted his testimony, another man has confessed to the murder, and Quezada has asked a federal judge to free him from prison. And much of what happens next could turn on what took place at the Crowne Plaza that night 20 years ago.

Salcedo now says in sworn testimony that he never saw Quezada shoot anyone, and that he only agreed to say otherwise after he had been arrested on a material witness order, threatened by detectives and held overnight in one of the hotels used by the district attorney’s office.

“I’m not trying to justify myself,” Salcedo said in the sworn statement, “I’m just trying to have a clear conscience, since I regret the harm that I have caused.”

For some defense lawyers in New York, the Quezada case is just one example of a wider abuse of material witness orders.

The orders are meant to help prosecutors compel testimony from problematic witnesses in criminal cases. But the orders, which must be signed by judges, are supposed to be used only in extraordinary circumstances, as a kind of last resort, often when prosecutors fear a potential witness might flee instead of testifying.

Prosecutors are required to honor basic protocols aimed at protecting the rights of such witnesses: once detained, they are to be brought directly before a judge and provided with a lawyer. A hearing is then supposed to be held to explore the reasons behind a witness’ reluctance to testify: Is it fear? Possible complicity in the crime? Or are witnesses being intimidated into testifying falsely?

Determining much about the use of material witness orders is not easy. Court administrators in New York State are able to say that prosecutors continue to seek them and judges continue to grant them, but can’t say definitively how often the orders are issued or whether prosecutors abide by the law in executing them.

A spokesman for the Queens District Attorney said prosecutors in the office always take such witnesses before a judge. But the city’s other four district attorneys told ProPublica they would not answer questions about how material witness orders are handled by their offices.

But the Quezada case is not the only one dealing with the possible abuse of material witness orders to have surfaced in recent years. Some defense lawyers say they are concerned about how often local prosecutors might have disregarded the safeguards meant to protect the witnesses.

A lawyer for a Queens woman who says she was illegally held as a material witness in 2008 is now pressing to hold prosecutors accountable, seeking to find them personally liable. She scored a considerable victory in her effort this week when a three-judge panel on the U.S. Court of Appeals for the Second Circuit held that prosecutors in the case were not entitled to “absolute immunity” from her lawsuit, and ordered the case to be reconsidered by a district court.

"A material witness warrant secures a witness’s presence at a trial or grand jury proceeding," Judge Gerard E. Lynch of the Second Circuit wrote in an opinion made public Friday. "It does not authorize a person’s arrest and prolonged detention for purposes of investigative interrogation by the police or a prosecutor."

Another lawyer, Joel Rudin, has asked a federal judge in Brooklyn to force the Brooklyn District Attorney to turn over its records concerning the detention of witnesses in hotels over the years. Rudin, who is suing the city over a wrongful conviction that was achieved in part by the abuse of a material witness order, already has won rare access to some material.

Rudin said some witnesses held in hotels were formally classified as prisoners; they may have been inmates brought to court to testify in a criminal trial. But scores of others on the logs he has seen were likely innocent men and women who were being detained under material witness orders, he said.

“If they were not happening in Brooklyn, we would associate such practices with a police state,” Rudin said in court documents filed in May.

The Brooklyn District Attorney declined to respond to Rudin’s allegations.

Controversy arose around federal prosecutors’ deployment of material witness orders after 9/11, when it came to light that they had used the warrants to detain large numbers of people to provide information about terror cases.

But the use of these orders at the state-level remains largely unexamined. In New Jersey, legislators adopted reforms to the state’s material witness statute two decades ago, prompted by a case in which a man was held in jail to testify against a defendant who hadn’t even been charged with a crime yet.

The reforms came after a state commission surveyed the laws on material witness orders across the country.

“Some states had some protections for witnesses, some had none, but no state had a comprehensive set of protections,” said John Cannel, a member of the New Jersey Law Revision Commission, an arm of the state legislature.

One Living Witness, Perhaps Too Valued

Jose Rosado was killed in a drive-by shooting in the crime-ridden Brownsville section of Brooklyn on Oct. 19, 1991. Ruddy Quezada was arrested for the crime, based on the statements to police of two alleged eyewitnesses: Sixto Salcedo and John Delacruz.

But by the time prosecutors were preparing for trial in late 1992, Salcedo was the only witness alive. Delacruz had turned up dead in the Bronx, leaving prosecutors with a badly weakened case without Salcedo’s testimony.

But Salcedo now says that in the run-up to Quezada’s trial he was no longer so certain about what he’d seen that night and refused to testify. Frustrated by Salcedo, prosecutors went to a judge in December 1992 to get an order to arrest him, and question him about just how uncertain he really was.

Salcedo says he eventually was picked up by an investigator with the Brooklyn District Attorney’s office, and brought to the Crowne Plaza hotel. Salcedo says he was never brought before a judge or provided with an attorney, and the Brooklyn District Attorney’s office has offered no evidence to the contrary.

Instead, he got a night with a New York Police Detective named Thomas Buda, who, according to court filings, threatened Salcedo with jail if he didn’t cooperate with prosecutors. Salcedo relented and testified the next day.

At trial he said he was standing in front of a bodega when he saw a black Cadillac with the headlights turned off pull up across the street. Quezada was in the passenger seat. He raised a machine gun and fired multiple shots out of the window.

“I saw him,” Salcedo said of Quezada, according to records of the trial. “I saw his face and then I saw some movement, then the shots, then we ran.”

The prosecutor, Ephraim Shaban, reassured the jury that Salcedo had come forward voluntarily.

Quezada, then 30, was convicted of second-degree murder and sentenced to 25 years to life in state prison.

Quezada immediately began to file appeals. And he eventually pressed for information concerning the circumstances of Salcedo’s testimony. He and his lawyers wanted to know if Salcedo had been arrested under a material witness order prior to trial.

For nearly a decade, in court filings and hearings, the Brooklyn District Attorney’s office insisted there was no material witness order used to compel Salcedo’s testimony. State judges accepted the district attorney’s claims. Quezada’s appeals were rejected.

But in 2011, close to 20 years after Quezada’s conviction, prosecutors produced what they had long insisted didn’t exist: a warrant to arrest Salcedo signed by Judge Abraham Gerges on Feb. 8, 1993. It stated that Salcedo should be brought “before the court forthwith” for a hearing to determine whether he did in fact have testimony relevant to the case and whether he should be held in police custody. Quezada’s lawyers also were given the page of the hotel custody log that recorded Salcedo’s night at the Crowne Plaza hotel.

The Brooklyn District Attorney’s office offered no explanation or apology for its failure to turn over the material earlier.

A federal court is now deciding whether to hold a hearing to examine Quezada’s claim of innocence.

Rudin, who is representing a wrongfully convicted Brooklyn man named Jabbar Collins in a multimillion-dollar lawsuit against New York City, suspects the abuse of material witness orders has been a regular feature of the way the Brooklyn District Attorney’s office did business over the years.

Collins, convicted of killing a Brooklyn rabbi in 1995, was told for years that an order used to prompt the testimony of a critical and damning witness in the case against him didn’t exist. Rudin ultimately found that to be false. Much like Quezada’s lawyers, he found that the key witness was picked up on a material witness order and then held for several days before he testified.

Rudin is now digging into the office’s use of material witness orders to bolster his accusation that there has been systemic misconduct in the Brooklyn District Attorney’s office. As part of that effort, Rudin has obtained the sworn testimony of Christopher Salsarulo, a former investigator for the district attorney’s office who says he executed many material witness orders during his three years with the office.

Salsarulo said in his sworn testimony that he received next to no training on how to properly execute a material witness order. He says nothing about bringing witnesses before judges or getting them lawyers.

Salsarulo said he was simply told “to do your best to find the material witness and bring her back to the DA’s office.” Salsarulo said material witnesses were sometimes put in handcuffs and taken to locked hotel rooms under armed guard.

The Brooklyn District Attorney’s office has denied Rudin’s claim that the office ran a rogue operation in which witnesses were routinely jailed and coerced into testifying falsely. To date, the office has not responded to Salsarulo’s portrayal of how material witnesses were handled.

Salsarulo, in his affidavit, painted a vivid picture of how uncooperative witnesses were dealt with, and how such treatment could produce useful testimony.

Witnesses, he said, would be left handcuffed in their underwear.

“You like pants?” Salsarulo said he would ask the witness.

Salsarulo, who now works as an agent for the U.S. Drug Enforcement Administration in New Jersey, said the technique often worked.

“If they’re compliant,” he said of the jailed witnesses, “we dress them and give them water, whatever they need so they would be comfortable.”

“I Didn’t Want to Come to Trial”

At 6 a.m. one January morning in 1992, 19-year-old Michael Thompson was asleep in his mother’s apartment on Avenue C in Manhattan when police rousted him from bed, according to court records. They had a material witness order to bring him before a judge and explore why he had been resistant to testify in a murder case. Six months earlier, Thompson had told police he’d seen someone shoot a man outside a Manhattan nightclub. He’d said he could identify the dead man, and his killer, a man named Fernando Bermudez.

But police and prosecutors had become frustrated over the months by what they viewed as Thompson’s lack of cooperation.

According to court documents, Thompson repeatedly told a Manhattan homicide prosecutor, James Rodriguez, that he didn’t want to testify against Bermudez. He told Rodriguez he’d never been sure of what he had seen that night outside the club.

But Rodriguez wasn’t persuaded. Several other witnesses had also identified Bermudez as the shooter. Rodriguez was determined to have Thompson testify. And so Rodriguez went before Manhattan Judge John A.K. Bradley, and obtained a material witness order authorizing his arrest.

Under New York law, Thompson should’ve been taken before a judge immediately after his arrest. But testimony and court records indicate that didn’t happen. He was supposed to get a lawyer. That didn’t happen. Instead, police drove him directly to the Manhattan District Attorney’s office to meet Rodriguez.

The Manhattan District Attorney’s office, which is now being sued by Bermudez, has declined to comment on the case.

In court filings, city attorneys representing the Manhattan District Attorney have denied any wrongdoing in the case. They claim that neither Thompson, nor any other witness, was pressured to testify falsely. To the contrary, they’ve suggested that the witnesses who recanted did so only as a result of pressure from Bermudez. Rodriguez, the prosecutor on the case, no longer works for the Manhattan District Attorney.

Thompson had been at the scene when Raymond Blount, his 16-year-old friend, was shot to death outside the club. He and others later picked Bermudez’s photograph out of a smattering of pictures provided by police in the days following the shooting. Thompson also picked Bermudez out of a line-up. But the photo was just of his face. And during the line-up, Bermudez never stood up, so Thompson couldn’t see how tall he was.

The man who shot Blount, Thompson said, was 5’8” or 5’9” and weighed about 160 pounds. Bermudez was 6’2” and about 215 pounds.

Thompson says he repeated his concerns to Rodriguez at the office that day he was picked up.

“I didn’t want to come to trial. I kept telling the ADA this because I doubted the identification. It was dark when Raymond got shot, and late,” Thompson said in a sworn statement he signed a year after the trial.

Police had found a toy gun in Thompson’s bedroom that morning. Thompson, who already had a criminal record, said he feared they’d make a case against him for it.

So he testified against Bermudez, as did several others.

“Before I went into the trial court the ADA took me and Frank Kent into his office to rehearse us. I was mad at what I had to do,” Thompson said in his sworn statement. “When I was in court I wasn’t sure no more of what to do. I remember looking at the defendant and thinking ‘he ain’t the kid who did it.’ I said what I was told to say by the ADA… I know now that it was a mistake.”

Bermudez was convicted and given a sentence of 23 years to life.

A year later, all of the witnesses recanted, including Thompson.

After nearly two decades in prison, the case finally imploded completely. State Judge John Cataldo found that Thompson’s forced false testimony was one of a raft of problems with the prosecution of Bermudez: the witnesses, teenagers all, viewed pictures of Bermudez and discussed them while they were all grouped together, violating basic police procedure and rendering their identifications unreliable; one witness feared being charged with the crime himself, and a substantial amount of evidence implicated another gunman.

In the case of Thompson, Cataldo found that he was arrested and threatened in secret, resulting in false testimony that contributed to a wrongful conviction.

“He was arrested and taken to the trial Assistant and told to make the identification or see if the judge would jail him for his lack of cooperation. The resulting testimony was tainted by these actions,” Cataldo said in a 79-page decision.

Thompson and another witness against Bermudez, Cataldo ruled, were left with a “feeling they had no recourse but to walk into court and identify Mr. Bermudez as the shooter, no matter what their doubts might have been.”

A Rare Review for an Overlooked Statute

In the late 1980s, New Jersey’s Hackensack River was suffering from decades of heavy industrial pollution. The 50-mile-long river had absorbed the waste of the state’s booming chemical processing industry. There were high levels of lead, cadmium, petroleum products, and other toxic refuse.

In 1989, state prosecutors were trying to hold polluters to account, and they thought they’d found someone who could help them: a man named Janos Misik, a low-level employee who worked for the Petro King Terminal Corp., a company suspected of dumping petroleum into the river. But Misik failed to attend a scheduled appointment with prosecutors. The prosecutors obtained a material witness order from a state judge and arrested Misik.

Misik’s attorney objected to the arrest. Misik’s employer hadn’t even been indicted, the attorney pointed out; therefore the state had no business obtaining a material witness order to pick him up.

A state judge ultimately found that prosecutors used the warrant as an “oppressive tool which amounted to a clear abuse of the court’s process,” and also identified some glaring deficiencies in the New Jersey law governing material witness orders. For one thing, the judge noted, the statute was over a century old. Second, it didn’t even define the term “material witness.” It didn’t include standards for determining the circumstances under which a witness could be arrested.

The judge suggested the state legislature undertake a review of the law.

So a case of toxic waste dumping, it turned out, gave rise to an uncommon inquiry on the long-obscure issue of material witnesses.

The New Jersey Law Revision Commission— an investigative arm of the state’s legislature— began examining the state’s material witness law in 1990.

Comprised of deans from three New Jersey law schools, two state legislators, and four practicing attorneys, the commission spent nearly two years analyzing academic work on the subject, case law and material witness statutes from all over the country.

It found that other state statutes were similarly out of date. So in 1992, the commission suggested its own reforms and the state legislature adopted them in 1994.

In order to obtain a material witness order from a judge, a New Jersey prosecutor now has to prove by clear and convincing evidence that the person does indeed have information material to the case and will not agree to cooperate.

When judges authorize such orders, witnesses have to be brought immediately to court for hearings in which judges evaluate their testimony and determine whether they need to be held in custody.

To date, there has been no similar move to examine New York’s statute.

At ProPublica’s request, Professor Bennett Gershman, a leading expert on prosecutorial misconduct, reviewed the material witness laws for New Jersey and New York. He suggested that they’re actually quite similar. The laws are not problematic, Gershman said, but rather the compliance of prosecutors with them.

“These are strong-arm tactics under the guise of something that looks official to bring people into the D.A.’s office or hotel room or some other place where the witness is being held secretly incommunicado and the witness is interrogated,” said Gershman, who has closely followed the New York cases involving material witnesses. “It’s possible that material witness order laws are being bypassed in New York as a matter of policy.”

Well, let’s be honest, here.

The cops come to your house like movie-KGB agents insisting you know something you’ve never heard of.  They arrest you because you’re being difficult, and keep you in custody overnight, presumably without letting you lock up or tell anybody where you’ve gone.

The next day, they bring you before a judge.  At the end of the discussion, he’s going to put you back into the custody of essentially the same cops who kidnapped you.

Are you going to be honest about why you’re resistant to testify?  Are you going to risk the ride home with people you’ve just called thugs and liars?

In some ways, it’s not very different from Contempt of Court, which isn’t so much a law as a judge throwing a tantrum until he gets whatever he wants.

Just who is. Your expert Professor Bennett Gershman andwhere does he teach? Very sloppy parts of this story.

This is not an uncommon practice from the personal experience I’ve endured.  Being convicted of Capital Murder August 2008, my family and I have experienced first hand the “under the table laws” of the justice system.  Fortunately, my conviction was overturned and I was released in Dec. 2012.  Only did this occur by finding out 4 of my jurors were relatives of my prosecutor and lead investigator and a remanded autopsy proving that all 4 issues listed for the cause of death of our stillborn son, NOT ONE of the 4 ISSUES EXISTED!  It’s amazing how far the arms of District Atty.‘s and former ADA’s can reach, all knowing by some Judge’s in Baldwing C

In France, the innocent are rarely charged, let alone convicted. In the US, 5% of people in prison are innocent.

Why the difference? The system reformed by Napoleon tries to find the truth; the system in England and its former colonies does not.

Evan, that sounds a lot like the old line that “everybody’s happy in our country.  At least, the people who count are happy.”

The problem in this country, as this article makes pretty clear in one dimension, is corruption.  When it’s good business to have people railroaded into prison for minor offenses, the courts are going to get a lot of false positives.  When a track record of convictions is a career-booster, prosecutors will do whatever it takes to win their cases.  If, on the other hand, there’s no monetary or career incentive to destroy the maximum number of defendants, prosecutors won’t do it anymore.

It has nothing to do with some vague Napoleonic idea of truth and everything to do with the fact that the truth is harmful to the prosecutor who is supposed to limit false positives (convictions of the innocent), false negatives (guilty people going free), and abuses of civil rights (since it’s easy to be 100% right if you always monitor everybody).  If your career depended on convictions, which of the three components of the truth would you focus on most…?

John, There is more dat in my book, Our Corrupt Legal System: Why Everyone Is a Victim (Except Rich Criminals). It is largely sourced to more than 300 lawyers and judges who had a piece or pieces of the puzzle. The book can be downloaded free from netk.net.au/whittonhome.asp

clarence swinney

Aug. 26, 2013, 2:34 p.m.

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