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Less Than Total Recall

A prominent Brooklyn prosecutor, forced to testify under oath about allegations that he had railroaded a possibly innocent man in a murder case 18 years ago, said he had trouble remembering much about the case.

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Jabbar Collins at the law offices of Joel Rudin in May 2013. Collins, who served 16 years in prison for a murder he says he didn't commit, had a seat at the table for the deposition of the prosecutor responsible for what Collins says was his wrongful conviction. (Andrew Burton for ProPublica)

July 10: This post has been updated.

For Jabbar Collins, the moment just after 9:35 a.m. on June 21 had been a long time coming. Collins had served 16 years in prison for a murder he says he didn’t commit. He’d won his freedom, and then sued the prosecutor responsible for what he insists was a wrongful conviction.

Now, inside the offices of the New York Bar Association, that prosecutor, Michael Vecchione, was going to be placed under oath and interrogated by Collins’ lawyer. Collins, who had become a paralegal since his release from prison, had a seat at the proceedings.

Everyone politely introduced themselves into the record.

And then Collins’ lawyer, who is seeking millions of dollars in damages, asked Vecchione if there was any medical or physical reason he could not testify to the best of his recollection.

“No,” Vecchione answered.

There was cause for Collins and his lawyer, Joel Rudin, to be eager about what might come next. Vecchione, in fighting Collins’ bid for freedom over the years, had asserted in a sworn affidavit that he had personally made every significant decision in the prosecution of Collins.

At 4:54 p.m., almost seven-and-a-half hours after Vecchione’s deposition began, a halt was called. A lot of ground had been covered. Rudin had won some concessions. But Collins and his lawyer were as exasperated as they were satisfied.

Vecchione, asked everything from the mundane to the momentous, had answered some version of “I don’t recall” scores of times. Rudin counted them up: 324.

“This is evasive contempt if it happened in front of a judge,” Rudin had asserted several hours into his interrogation.

This week, Rudin asked the federal judge overseeing Collins’ lawsuit to force Vecchione to do better. And he asked the judge to sanction Vecchione and the lawyers for New York City who are representing him if he fails to do so.

“Mr. Rudin appears to be unhappy with the answers Mr. Vecchione gave at his deposition, mainly because those answers undermine his client's claims in this case,” said Arthur Larkin, senior counsel for the New York City Law Department. “But Mr. Rudin's disappointment with the testimony does not warrant extending the deposition. We intend to oppose the application and will file our opposition papers today.”

The allegations against Vecchione are some of the most serious in the recent and troubling history of wrongful prosecutions. Vecchione is a senior official in the Brooklyn District Attorney’s office, chief of the office’s rackets division and a featured character in CBS’s television series, “Brooklyn DA.” Collins and his lawyer have accused him of intimidating witnesses and suborning perjury in his prosecution of Collins, and of having then worked to thwart Collins’ effort to challenge that conviction during his years in state prison. More than that, Collins and his lawyer have accused Vecchione’s boss, Brooklyn District Attorney Charles J. Hynes, of having overseen for years an office in which similar misconduct was not only tolerated but rewarded.

Hynes, who is campaigning to win a seventh term, has both stood by Vecchione and denied the claims that his office condoned misconduct. Vecchione, at every turn, including during his sworn testimony last month, has insisted he did nothing wrong.

Certainly, witnesses invoking the “I don’t recall” response during depositions is a familiar phenomenon. And it can be anything from an honest statement to a prudent legal strategy to an outright lie. Bill Clinton, deposed in a sex harassment lawsuit years ago, offered his fair share of “I don’t recalls,” although conventional wisdom was that Clinton, ever the over-sharer, might have done well to have invoked the answer even more often. And the rapper Lil Wayne’s videotaped deposition in a legal dispute was so entertainingly full of “I don’t recalls” that it became a YouTube sensation.

Vecchione’s inability to recall things began early in his deposition and continued until its end. He could not recall some fairly basic things about how the Brooklyn district attorney’s office was run; he could not recall if Hynes, his boss, had ever discussed with him the allegations of misconduct made by Collins in his $150 million lawsuit; he couldn’t recall if he’d ever received formal training in the rules regarding what prosecutors were obligated to turn over to defense lawyers; he couldn’t recall how long the romance he’d had with his fellow prosecutor on the Collins case had lasted.

Nor could he recall the details of perhaps his most famous prosecutorial victory – the conviction of Clarence Norman, the Brooklyn political kingpin.

Rudin did not ask Vecchione about Norman by accident.

One of the allegations made in the Collins lawsuit involves what Rudin asserts was Vecchione’s practice of having someone else sign his sworn affidavits – for subpoenas or other kinds of orders or legal work. Doing so could be considered a crime. Vecchione has denied he authorized people to do so, but during Rudin’s examination, he could not account for repeated examples in which he acknowledged sworn affidavits bearing his name were signed by someone else.

To wit, Clarence Norman.

“Who is Clarence Norman?” Rudin asked Vecchione.

“He is a former assemblyman and former head of the democratic party in Brooklyn,” Vecchione answered.

“And did you handle his prosecution?” Rudin asked.

“I did,” Vecchione said. “Prosecutions. There were four.”

“And was he charged with, among other things, the filing of a false public document?” Rudin asked.

“I don’t recall,” Vecchione answered.

“You don’t recall what he was charged with?” Rudin asked.

“I recall some of the things he was charged with in general, but I don’t,” Vecchione started to answer.

“Do you recall whether or not he was charged with the crime of filing a false public document?” Rudin persisted.

“I don’t recall,” Vecchione maintained.

Rudin then produced one of a number of documents that Vecchione, during his time in the district attorney’s office, had sworn out under penalty of perjury. Vecchione agreed that the signature on the document was not his.

“During 1995 were you aware whether or not anyone employed by the Brooklyn District Attorney’s office had ever signed your name to either an affirmation or an affidavit that was submitted to court?” Rudin then asked.

“I don’t recall,” Vecchione said.

For Rudin, Vecchione’s most frustrating inability to recall things involved his sworn claim made years ago about his handling of the Collins case. In 2006, Collins, in large part as a result of his own intrepid work from prison, had mounted an appeal of his murder conviction. The Brooklyn District Attorney’s office had to respond, and as part of that response, Vecchione, as the senior prosecutor on the Collins case, swore out an affidavit.

The affidavit ran to seven pages. It was a point-by-point rebuttal of Collins’ claims of misconduct.

“As the lead prosecutor, I and I alone determined the course of our investigation and the manner in which the trial was conducted,” Vecchione said.

And his memory, he said, was sharp.

“Although I tried this case in March 1995, more than 11 years ago, I still have a clear recollection of it,” he said.

Seven years later, and despite 17 hours of prep work with city lawyers, Vecchione seemed to say his memory had suffered.

He couldn’t remember if he’d ever interviewed any other possible suspects in the case. He couldn’t remember if he’d ever interviewed an alleged key member of the group that plotted the robbery that led to the murder. He couldn’t remember if he’d ever interviewed any of Collins’ alibi witnesses.

Indeed, Vecchione said he couldn’t recall whether he’d actually prepared the affidavit refuting Collins’ allegations or someone else had. And he said he couldn’t recall if he had ever meaningfully reviewed critical aspects of the case with the person in his office responding to Collins’ legal challenges.

In the end, the record of Vecchione’s testimony ran to 354 pages. The final exchange with him involved potentially sensitive office emails concerning the Collins case. Vecchione could not remember much about them. Indeed, his final answer, after more than seven hours of questioning was, “I don’t recall it.”

Eleven days later, Rudin filed papers in federal court. He asked for more time to question Vecchione. And he asked that Vecchione be punished if the additional questioning went much as the initial seven hours had. Of Vecchione’s failure to recollect, Rudin wrote:

“He has the right to claim that if it’s true, but his testimony went further in its deliberate evasiveness, and should not be tolerated.”

Update (7/10): At a hearing on Tuesday, Brooklyn Federal Magistrate Judge Robert Levy granted Rudin’s request to question Vecchione for three additional hours in the second round of his deposition.

It appears this man is another example of a loose canon in the civil service.
If it can be   he has been less than honest during his duties as an officer of the court, then he needs to spend the rest of his life in prison.
If this is impossible to have him put a way; then the politicians must change the law.

It appears this prosecutor is another example of a loose canon in the civil service.
If it can be   he has been less than honest during his duties as an officer of the court, then he needs to spend the rest of his life in prison.
If this is impossible to have him put a way; then the politicians must change the law.

Thanks for writing this article.

The lead prosecutor sends a (signed?) affidavit calling the allegations of prosecutorial misconduct made by the man he convicted 11 years earlier, a bunch of lies, stating he has a perfect memory of the trial and case.  Then, 6 and 1/2 years later, can’t recall 324 times?

Hynes has been the Brooklyn D.A. far to long, and I’m not saying that because he supports Vecchione.

terri treinen

July 8, 2013, 2:29 p.m.

and so the prosecutor asks the defendant:
“Did you plan the Murder?”
    defendant:“I don’t remember”
“Did you bring the gun?”
    defendant:“I don’t recall”
“Did you pull the trigger?”
    defendant:“I’m not sure”
“Did you in fact kill this person?”
    defendant: “I don’t recall it”

Like we’d accept those answers and let the guy go on that! hmmmm the supposed Equal scales of justice. Crime, lies, and misconduct can exist anywhere. This is just another example of why America’s government, courts, police, and lawyers have become an embarrassment. Time to start over and clean house in the ‘System’. Especially when we are punishing with the death penalty and incarcerating for life without parol, and far to often we’re finding down the road we are doing it to the innocent! You can’t give a dead man back his life, and you can’t give decades of a stolen life back to a person held illegally against their will ... in fact we hold those conditions to be crimes, they are called murder and kidnapping, and we have punishments for those who KNOWINGLY perpetrate those acts upon the innocent! Shouldn’t matter if the perpetrator is a street thug or a suited-up maniacal in the prosecutor’s office stepping outside the boundaries of reason, moral right, and the law. Justice is not blind because she’s looking the other way, she’s supposed to be there looking out for EVERYONE regardless of which side of the courtroom they are sitting on. If indeed Mr. Vechionne did wrong he needs to be held accountable without benefit of any ‘public servant immunity’ or ‘fading memory’ BS. Mr. Vechionne needs to pull out his own department case file on this one to refresh his grey matter with the facts of who, where, when, and what he was doing back then. But alas, perhaps he simply can’t ‘recall’ where he put the file!

Your photo makes it look like Jabbar is the one failing to remember. You should post the prosecutor’s pic.

If the guys who hold the vey highest offices in the land get away and rewarded for this BS its not any wonder this lawyer would use the same tactic.  I’m not talking about “not recalling”, what we’re really witness to in this case is lies.  If it benefitted this lawyer to recall, he would, as he has in the past on the same case.

Wasn’t there a former attorney general for the bush administration who testified under oath before congress who did exactly the same thing! Just remember if you are asked to testify;“I DON’T RECALL”!

Mr Collins needs to be praised for developing the skills to be a paralegal, and using the same system of laws to exact justice for Mr Vecchione.

Anyone in a position of power within the legal system, where the public has by definition allocated enormous power and authority, who violates their office and public trust needs to be dealt with as harshly as the law allows.  Articles like this remind people of what is at stake. You lose the law, you lose the game.

Prosecutors use their office as a springboard to higher political office, as such the posts get filled with political hacks instead of dedicated civil servants. 

In addition, prosecutors shouldn’t have immunity from slander for what they say defending “the people,” when they lie and suppress evidence to further their careers, they need to be held accountable, criminally and civilly.

Dr. Kenneth Tennant

July 22, 2013, 5:37 p.m.

Google:  Kenneth Tennant (Domestic Terrorism: USA vs Veterans and the First Amendment) (563) 355-7073

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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