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A Simple Fix: Should New York Compel Judges to Report Problem Prosecutors?

When judges find that prosecutors have abused their authority, other states require them to refer such cases for investigation by disciplinary committees. Should New York follow suit?

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Michael Vecchione, a senior Brooklyn prosecutor, in court in June 2007. A federal judge determined that Vecchione had withheld critical evidence during a murder trial and threw out that trial's conviction. No disciplinary action has since been taken against Vecchione. (Mary Altaffer, Pool/AP Photo)

This op-ed was co-published with the New York Daily News.

Shih-Wei Su was jailed for 12 years on attempted murder charges before a federal appeals court overturned his conviction, finding that a Queens prosecutor had "knowingly elicited false testimony" in sending him to prison. The city eventually paid Su $3.5 million.

The prosecutor received a private reprimand.

Jabbar Collins served 15 years in prison for a murder he didn't commit before his conviction was thrown out in 2010. Michael Vecchione, a senior Brooklyn prosecutor, had withheld critical evidence during trial, a federal judge determined. Collins has filed a $150 million lawsuit against the city.

No action has been taken against Vecchione.

I’m editor-in-chief here at ProPublica. A recent investigation by our reporters Joaquin Sapien and Sergio Hernandez found these cases were hardly unique.

Sapien and Hernandez reviewed a decade's worth of court documents and found 30 instances in which state or federal courts identified misconduct serious enough to throw out a conviction.

Yet hardly anyone involved in the prosecutions was held accountable.

The reporters also identified more than 50 instances in which state appellate courts had criticized the tactics of prosecutors but let convictions stand.

But as far as we could determine, none of these cases resulted in disciplinary action against anyone in the DA's offices either.

Senior prosecutors we interviewed contend that almost all of the instances of alleged misconduct amounted to honest mistakes or differences of opinion on the requirements of the law. And they like to note that cases of misconduct represent a tiny portion of the criminal charges processed each year by courts in the five boroughs.

It's hard to know what to make of that claim. The vast majority of convictions, more than 90 percent, are plea bargains — deals struck outside of public view. If prosecutors are willing to violate rules at trial, who is to say what is going on behind closed doors?

More importantly, the claim that instances of serious misconduct are few amounts to a convenient bit of misdirection. The issue, at heart, is not the frequency of misconduct, but the lack of consequences for prosecutors who violate their oaths.

All of this forces us to ask: What are judges obligated to do, and should they be required to do more?

A judge in New York who learns there is "substantial likelihood" that a lawyer has committed a "substantial violation" of legal ethics must take "appropriate action."

A lawyer who "knows" that another lawyer has violated ethics rules so that a "substantial question" is raised concerning the suspect lawyer's honesty, trustworthiness or fitness must report the issue to an appropriate authority.

Take a close look at these words and you can see pretty quickly why the system has broken down. The words are fuzzy; they leave tremendous discretion.

Our reporters were told the state's disciplinary committees, which work for the court system, do not receive automatic referrals from trial or appellate judges, even when they have found prosecutors manipulated evidence, condoned perjury or worse.

The view of the judges seems to be: We included it in our opinion. That's enough.

The other means of bringing cases involving prosecutors to ethics investigators — referrals by defense lawyers — seems inherently flawed. Few who work regularly in the criminal courts are eager to bite the hand that plea bargains.

There are better ways. Some states have imposed much stiffer requirements on judges to report allegations of wrongdoing by prosecutors.

New York could easily emulate those states. And given what we've uncovered, it's hard to see why leaders of the legal community would want to do anything less.

While, yes, of course courts should have an affirmative duty to report malfeasance, I wonder what the Bar Associations have to say on the topic.  After all, mistrust of the prosecution affects everything they do, and they have a certain amount of power over everybody practicing law in their jurisdiction.

There are plenty of laws and rules on the books already, and no one does a damned thing about it. The whole system is a big joke.

The system is designed to protect their own. One scab gets peeled and a blood bath might start.

I made a complaint to the DDC. The prosecutor told the jury when his witness made a false statement, the prosecutor KNEW it. He just never bothered to correct it.  The Judge KNEW it. When the prosecutor writes his explanation to the DDC, the dummy puts it in writing as to how he knew it.  Crazy thing about it all is the prosecutor really didn’t know it other than the fact he knew everything his witness testified was one pack of lies created by the district attorney.

Made a charge against the Judge to the Comm.Jud.Conduct. If you think the above was funny, wait until you get a load of this:

The judge caused the record to be changed because he warned the prosecutor he would call a mistrial if the prosecutor ventured into forbidden territory. The prosecutor tells the judge he understands and adds : ...I am going to do it anyway.,,’  And he does within minutes.

Charged the judge with being involved in the case two years before the indictment. He was too close to the case not to recuse himself.

Told the CJC I told the judge that an attorney with an interest had a serious conflict of interest. The Judge was required to report this to the DDC. Apparently the judge did not report it.

It is a joke - from top to bottom and all the way to the 9 “Supremes” sitting in Washington.  If only they could sing like the real Supremes, at least it would be entertaining.

Lincoln Nielson

April 10, 2013, 2:47 p.m.

What do you mean New York? This should be happening everywhere.

Problems already being addressed above, I can vouch for the difficulty and opposition to the idea. Franklin Co, ID just recently placed a former prosecutor on the bench who withheld exculpatory evidence in a criminal case against me. 22 months of my life and an extortion to ‘file no further’ later, and they finally just let me out. No parole, fees, or fines. Just a felony scar on my record and no way to seek accountability or justice.

I worked for many years as a pediatrician working with child victims, including victims of the justice system.  I suspect I would come to the same conclusion if I had been working with adults, but as far as children are concerned, there is no justice.  Our so called justice system is actually a field of combat between the various interested parties, lawyers, prosecutors, judges, enforcement and, the role I frequently took, experts.  In this battle the prosecutors are the winning gladiators, but pretty much everyone gets well paid. Lawyers who seem not to understand the system, like Lynn Stewart, bless her heart, are made to suffer for their principles. The whole system has been designed to please prosecutors.  This would not be surprising to folks who live in transparent tyrannies, but in our Alice In Wonderland version of democracy, folks here in the US seem clueless about the authoritarian nature of our courts that operate under the tattered pretense of fairness and equality.  Never has a perception so deviated from reality outside the heads of individual psychosis.

I wouldn’t hold my breath on the issue of sitting judges going after criminal activity by prosecutors.  Anyone who tired would regret it shortly.

herb

Being that this question is even being asked appears to me that it is an indictment of the system. Attorneys, as Officers of the Court, have a responsibility, that if compromised by dishonesty, should receive automatic jail time!...Maybe they should be forced to serve the sentence of the accused. If the Judge hearing the case is guilty of culpability, he should share the same fate! The professionals in the legal industry should be held to a standard that even higher than an average citizen when it comes to abiding by the law. When they knowingly break, or abuse the law, they must be an example to the City, State, Country, that laws apply equally to everyone.

That this should be a question is mind-boggling.  Any officer of the court, judge, attorney, clerk, should be held responsible for and have the duty to report malfeasance publicly to the appropriate authority.  That it is not so in New York, or any other jurisdiction, is shameful failure of the justice system in the United States.  Not only should reporting be mandatory, but failure to report should be treated as an equal offense.  Because the perpetrator of the malfeasance (or in some cases felony) wears a robe, a tie or a badge should not shield them from the same treatment they mete out to those appearing before them.

For most of the same reasons I could not speak of what I witnessed being said by inmates, I also am a safe haven for a lot of really smelly details about the actions of courts.  The overall system is corrupt, you will know it by its fruits, but, from my experience in three California counties there are degrees of corruption. 

When I could act, I did.  For instance, while being the Medical Director at the Sylmar facility for juveniles, I was routinely encountering wards (children actually) that had been malled by police dogs.  In this case I was able to file State child abuse forms against the dogs themselves, by name, who left their dental records at the site of the crime, the wards bodies, complete with beautiful photography.  In short order they either began to take those particular victims to more compliant institutions beyond my knowledge (always a possibility), or, which I know to be the actual case, the word went out through the watch commanders to cut out letting the dogs chew on the suspects.  Paper work is hell after all.

But, as in all else in life, crimes tend to happen where consequences do not exist.  Above a certain grade level the incentives become counter intuitive.  The good people hang on to do good and the bad people are free to do what they can get away with inside their particular thin blue line.

Ultimately, people do what they have to do to be able to keep doing the good that they are doing.  That is often how the good end up standing by doing nothing.  My favorite Quaker aphorism is, “Don’t just do something.  Stand there.”

The prosecutor works for the District Attorney.  District Attorney is an elective position.

Which is more detrimental!  Having to pay out 3.5 Million to someone who was obviously innocent? (2) caused by a Prosecutor who was asleep at the wheel who makes how much money doing the job?  Plus, from this account will do it again? Unless someone say’s excuse me! are you aware of what you are doing and the cost in $$ and human suffering all because you decided to make some small mistake or oversight!

Yes, but try to get the Disciplinary Board to do anything about a wayward prosecutor.  The judges and prosecutors, or DA/s get notches on their belts for convictions. In my case, the D. A. got the District Judge to sign an exparte order for a mental competency evaluation for which the Rules clearly state an evidentiary hearing must be held.  Problem is that they all lie for each other.  The Judge asked in a hearing, “Did I really sign an exparte order?” when my attorney stood with head lowered and never spoke up for me to ask it to be dismissed, after all he is an officer of the court first and foremost.  Now they have recorded a hearing that did not happen, deleting the question asked by the Judge, and my attorney learning his has a real voice and spoke up heartily giving me a very good representation.  The DA was in on it since their conversation was timely and good tempo with appropriate response if they had actually done that in a hearing.  So what is one to do?  Complain to the Judicial Commission and have them accuse me of being delusional. Strange how records and recordings get changed, as well as dockets.  I hear this is a common problems.
There is no justice in America.  It is a game, and laws are enforced selectively, and incidentally in order to silence whistle blowers. Three a attorneys and $5K before one would file one piece of paper in my defense after nearly a year, and then neglect to follow through when the D.A. doesn’t respond to Motions. BTW, this DA got two judges to sign exparte orders within a month of each other, when never signing any notice of appearance more than four months after a misdemeanor charge filed with no corpus delecti, filed by a police captain, no signed affidavits of damages, and no witnesses.  Corrupt SOB’s.

There is an easy fix here. Simply have the Fed’s prosecute state prosecutors and, should a guilty verdict be found, asset forfeiture of proceeds from that crime.  The second time the Fed’s confiscate and sell an entire cities or states DA buildings or courthouse you will see some internal enforcement.  Ditto with the second time you imprison both the state prosecutor AND his supervisor for conspiracy.  After all false imprisonment is a denial of civil rights hence a Federal matter.

Most of what I know about the criminal justice system comes from watching Law & Order, which is, of course, fiction.  But I’ve served on juries, and been personally involved in administrative court proceedings.  I’ve also sat in courtrooms listening to proceedings involving friends. 

All I can say based on these experiences is that the only thing missing in our court system is justice.  We’ve got plenty of lawyers and more than enough laws.  We’ve got clever, well-educated, and terribly efficient prosecutors who can frighten just about anyone into a plea bargain.  But it all adds up to a bureaucracy for dispensing with troubled people and troubling questions—usually by institutionalizing people who aren’t wealthy.

Kenneth MacKenzie

April 11, 2013, 2:59 a.m.

Message: The following is an excerpt of my “Crime Complaint” filed under “Rule 15 Supplemental Briefs” to my U.S. Supreme Court 08-9595, Petition for Writ of Certiori (“Denied”):
. #. On or about the date of December 2008, in the county of Harris, in city of Houston, Southern District of Texas, defendant U.S. Attorney Johnson, a U.S. Department of Justice lawyer employee , violated U. S. C. Title
18 § 1512, Tampering With a Witness and violated U. S. C. Title 18 § 1513, Retaliating Against a Witness, said offenses described as follows:
. #. On December 2008, Plaintiff Kenneth MacKenzie phoned and notified Mitch Neurock, U.S. Attorney’s Office, of the following facts and requested Witness / Victim Protection program assistance from the U.S.
Attorney’s Office for the Kristian Menchaca family as the Kristian Menchaca family had been threatened with death in an eMail sent by terrorists to Plaintiff Ken MacKenzie’s eMail address. Witness / Victim Manager Mitch Neurock said he would submit Plaintiff Menchaca family request to Tim Johnson, a U.S. civil service Attorney employee temporarily appointed by former U.S. Attorney General Mukasey to manage the Houston Office of the U.S. Attorney, presumably until another U.S. Attorney could be appointed by the Obama Administration.
. #1. On or about the last week of December 2008, Plaintiff Kenneth MacKenzie phoned Mitch Neurock, U.S.
Attorney’s Office, and Neurock explained that U.S. Department of Justice lawyer employee Tim Johnson refused to provide Witness / Victim Protection program assistance to the Kristian Menchaca family and gave no reason for his refusal. After some discussion, Neurock explained that the Kristian Menchaca family could write to the U.S. Department of Justice in Washington, DC and seek Witness / Victim Protection program from the Washington, DC office.
. . In Crime Complaint filed with U.S. Supreme Court 08-9595, under Rule 15, “tssb MacKenzie, Vasquez, Menchaca #2; 08Jun2009 : Crime Complaint U.S. ATTY Page 3 of 14 . #. Plaintiff Kenneth MacKenzie informed Mitch Neurock, U.S. Attorney’s Office, that MacKenzie was the Uncle of U.S. Army PFC Kristian Menchaca. After PFC Kristian Menchaca’s Army leave time-period expired in the USA, May 2006, PFC Kristian Menchaca returned to Iraq in June 2006 and was eventually captured together with PFC Thomas Tucker by al Shura Nuclear Jihad Terrorists who barbarically tortured both to death from 16 Jun to 19 Jun 2006. SEE: http://christianmenchaca.com/publisher.php
. #. On February 2008, Plaintiffs Kristian Menchaca family including MacKenzie as member, filed a wrongful death War Crime Claim (Formatted on a U.S. Claim Form 95 ) with the U.S. Attorney General in Washington, DC, and filed said documents with U.S. Attorney DeGabriel in Houston, Texas, which incorporated U.S. District Court Case H-08-60 (Houston), set forth in its entirety within said U.S. Claim Form 95. U.S. Attorney DeGabriel phoned Kenneth MacKenzie and explained he had forwarded said Claim and Lawsuit Court Case H-
08-60 (Houston) to the appropriate persons in Washington for their decision.
. #. On 20 Jul 2008 Plaintiff MacKenzie received the following cited death threat by eMail at his eMail Address, .(JavaScript must be enabled to view this email address), on his computer, located in his home,  Houston, Texas 77009.
. #. Plaintiff MacKenzie forwarded following said 20 Jul 2008 Death Threat in its entirety by eMail to the Houston office of FBI, a portion of which is quoted as follows:

We need to re-design our own North-American Judcial model: as non-digital, outlandish, old model has aready become outdated.
Selected indirectly, money influenced Top judges still act like conditioned bad cats to confusingly honor outlandish and faceless thugs (in disguise).

I can’t see updating our judicial system to the Digital Age doing much good for anyone but computer companies and IT personnel.

In a bureaucracy gone wild, which our judicial system seems to be, the addition of digital systems will make the bureaucracy more efficient and impersonal in doing what it already does.  If our judicial system is hiding prosecutorial misbehavior, dispensing plea bargains rather than justice, and persecuting whistleblowers, digital equipment will only allow it to do so with more ruthless efficiency.

Cameras should be allowed in every court-house proceedings and nothing will be kept secretly outside the view of local or global public eyes anymore.

BabyBoomerWriter

April 14, 2013, 5:16 p.m.

Three serious misdeeds should result in the removal of their license to practice law. What good is it when prosecutorial errors are “handled” in private? Individuals in these powerful jobs are public servants. A serious mistake/oversight on their watch erodes trust for the authorities who chose them as well as for the fairness of our justice system. Reprimands, fines and any accountability statements must be made publicly. One hopes that will serve as a warning to all prosecutors that exceptional thoroughness in handling every case is expected.

This article is part of an ongoing investigation:
Out of Order

Out of Order: When Prosecutors Cross the Line

New York City prosecutors who abuse their authority almost never see their careers damaged.

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