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Who Polices Prosecutors Who Abuse Their Authority? Usually Nobody

The innocent can wind up in prison. The guilty can be set free. But New York City prosecutors who withhold evidence, tolerate false testimony or commit other abuses almost never see their careers damaged.

Tony Bennett near Jamaica Bay, N.Y. After serving 13 years in prison for murder, Bennett was released when a state appeals court found that the prosecutor who had handled his case had violated a basic rule of law by withholding critical evidence from Bennett's attorney. In an interview, Bennett confessed to the crime. (Andrew Burton for ProPublica)

This is Part 1 of a series. Read Part 2.

The murder case against Tony Bennett seemed pretty straightforward.

Shortly before midnight on May 7, 1994, police found a 26-year-old man in the foyer of an apartment building near Flushing, Queens. Jake Powell was near death, blood pouring from a gunshot wound, but he managed to speak the name of the man who had shot him: "Tony Bennett."

Bennett, a two-time felon, was eventually captured, convicted of murder, and sentenced to 25 years to life in prison.

But Bennett never served anywhere near that sentence. He has, in fact, been free since 2008 because Claude Stuart, the former Queens assistant district attorney who handled his case, violated a basic rule of law by withholding critical evidence from Bennett's attorney. A state appeals court overturned Bennett's conviction and released him after 13 years in prison.

That early release has freed Bennett to describe his role in a crime he had insisted for two decades he did not commit.

"He was wrapped up in a shower curtain in the corner of the bathroom, shivering and shaking," Bennett recalled of Powell, who Bennett said had terrorized his family for years. "He was saying all this, 'Please, please, don't hurt me, don't shoot, I'm sorry, I'm sorry.' And I said, 'Yeah, I'm sorry, too.' And I did what I had to do."

Stuart's wrongdoing in the Bennett case wasn't his only act of misconduct. He manipulated evidence in another case, and that conviction wound up being reversed by the courts, too. But his bosses took no action after that misconduct became known. A state disciplinary committee reprimanded Stuart, but that fact remained secret from the public. Indeed, Stuart's superiors did not act until another conviction was overturned, and Stuart was found to have lied to a trial judge about the whereabouts of a key defense witness.

That, at last, cost Stuart his job.

Stuart's career, across many years and with repeated abuses, helps demonstrate a broader truth: New York's system of attorney oversight is ill-equipped or unwilling to identify, punish and deter prosecutors who abuse their authority.

A ProPublica analysis of more than a decade's worth of state and federal court rulings found more than two dozen instances in which judges explicitly concluded that city prosecutors had committed harmful misconduct. In each instance, these abuses were sufficient to prompt courts to throw out convictions.

Yet the same appellate courts did not routinely refer prosecutors for investigation by the state disciplinary committees charged with policing lawyers. Disciplinary committees, an arm of the appellate courts, almost never took serious action against prosecutors. None of the prosecutors who oversaw cases reversed based on misconduct were disbarred, suspended, or censured except for Stuart. (Stuart declined repeated requests for an interview for this story.)

Nor were any but Stuart punished by their superiors in the city's district attorney offices. In fact, personnel records obtained by ProPublica show, several received promotions and raises soon after courts cited them for abuses.

The damage from prosecutorial misconduct can be devastating, not only allowing guilty people like Bennett to go free, but also putting innocents behind bars. In 10 cases identified by ProPublica, defendants convicted at least in part because of a prosecutor's abuse were ultimately exonerated, often after years in prison.

Shih-Wei Su was incarcerated for 12 years on attempted murder charges before a federal appeals court cleared him, finding that a prosecutor had "knowingly elicited false testimony" in winning a conviction. The city eventually paid Su $3.5 million. The prosecutor received nothing more than 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. Collins has filed a $150 million lawsuit against the city. No action has been taken against Vecchione.

Last July, two men filed lawsuits for a combined $240 million against the city for wrongful convictions that a state appeals court found were won in part because Manhattan prosecutors had withheld evidence. The men served 36 years in prison, collectively. The prosecutor, who long ago left the district attorney's office, has not been publicly disciplined.

"It's an insidious system," said Marvin Schechter, a defense attorney and chairman of the criminal justice section of the New York State Bar Association. "Prosecutors engage in misconduct because they know they can get away with it." (Schechter said he was expressing his own opinion, not that of his bar section.)

New York City's district attorneys say concerns about misconduct — heightened by several recent high-profile cases — are largely misplaced.

Allegations of such practices are substantiated in only a fraction of the roughly 285,000 cases they handle each year, they assert. Even in those, they add, what courts deem misconduct often amounts to inadvertent error.

Top prosecutors also say their offices have taken significant steps to limit and expose misconduct, in part by establishing internal units that examine claims of abuse.

"The egregious cases don't mirror the larger universe, but are rather somewhat isolated," said John O'Mara, head of the Brooklyn District Attorney's Conviction Integrity Unit.

There have been a variety of reports over the years, both national and local, that documented a substantial array of serious misconduct involving front-line and senior prosecutors alike.

Across those years, there has been at least one constant: the inability or unwillingness to meaningfully punish the offending prosecutors.

ProPublica, in the latest analysis, examined the years 2001 to 2011, chiefly scrutinizing instances in which state or federal courts identified misconduct serious enough to throw out a conviction. The analysis also incorporated civil cases during those years, virtually all of which resulted in financial awards being given to the victims of such misconduct.

The analysis found a total of 30 cases that met those criteria. Four of them involved civil cases addressing harmful misconduct that took place as far back as 1985. Again, in all those cases, no prosecutor other than Stuart was seriously disciplined for misconduct.

Calculating the full extent and impact of prosecutorial misconduct can be difficult. More than 90 percent of criminal cases never go to trial, so the public has no way of knowing how prosecutors conduct themselves in the tens of thousands of cases every year that, for instance, end in plea deals.

Moreover, state appellate courts — in theory the first check on misconduct allegations — often criticize prosecutorial tactics but let convictions stand if they conclude the conduct did not decide the outcome of the case.

ProPublica identified more than 50 instances in which appeals courts essentially gave prosecutors such no-harm, no-foul free passes. In a 2009 ruling, for example, a court found that a Manhattan prosecutor should have disclosed a co-conspirator's statement that the defendant wasn't actually involved in the shooting he was charged with, but concluded there was "no reasonable possibility that the failure to disclose … contributed to the verdict."

Academics and defense lawyers say such rulings allow prosecutors to engage in bad practices as long as they don't result in unjust convictions.

"If you're in the Olympics and you're in a race and you win and then it's found that you took steroids, they take your medal away," said Larry Goldman, a former Manhattan prosecutor who is now a defense attorney. "No one says, ‘Oh well, it doesn't matter if you took steroids, you would've won anyway.'"

When courts and grievance committees shrug off problematic conduct, Goldman and others said, they miss opportunities to deter more misconduct before it worsens, often disastrously.

When prosecutorial misconduct goes unchecked, said Hal Lieberman, a former chief counsel for a New York grievance committee, it "undermines the integrity of the entire system."

* * *

Stuart was assigned the Bennett case as he neared his 10-year anniversary with the Queens District Attorney's office, soon after being promoted to the Career Criminal Major Crimes Bureau.

Stuart had Powell's final words identifying his killer, and he notified Bennett's lawyer that those words would be the key to his prosecution.

But on the last day of the trial, Stuart produced a surprise witness: a man who testified that he, too, had heard Powell identify his killer.

The jury returned a guilty verdict.

Looking back, Bennett said, Stuart had "pulled a rabbit out of his hat."

A state appellate court took a dimmer view, finding that Stuart had "ambushed the defense by his deception."

The court overturned Bennett's conviction. Bennett, after pleading guilty to a lesser charge, was soon free.

Prosecutors' obligation to disclose potentially important evidence to defense lawyers is a bedrock principle of the justice system. Under the U.S. Supreme Court's 1963 Brady v. Maryland decision, prosecutors must disclose any evidence that is material to either the guilt of the defendant or the severity of the alleged crime. Under New York state court ruling People v. Rosario, New York prosecutors must turn over statements by witnesses who will give testimony.

But ProPublica's analysis showed that violations of these obligations were the most common form of serious misconduct by city prosecutors, who failed to meet these standards in more than half of the 30 cases reversed by state or federal courts based on misconduct.

Prosecutors said Brady and Rosario violations are almost always accidental and sometimes involve complex judgment calls about what evidence needs to be turned over and when.

"The decision as to what constitutes material that must be disclosed under Brady is not always simple to make and often subject to debate," John Ryan, the chief assistant district attorney in Queens, said in a letter to ProPublica. The case law governing Brady is always changing, he added, and sometimes even appellate judges disagree on what is required.

Dozens of current and former prosecutors told ProPublica they received vigorous training on how to make decisions on Brady, worked closely during trials with supervisors, and were urged to err on the side of disclosure.

But Schechter, the head of the criminal section of the state bar, has said the culture and training in the offices of prosecutors may sometimes lead prosecutors to skirt the rules in their desire to win victories in court.

"Assistant district attorneys do not emerge from law school with a genetic disposition to hiding Brady material," he wrote in a July 2012 letter to the bar association published in the New York Criminal Law newsletter. "Instead this is something which is learned and taught."

The letter triggered an explosive reaction: Bronx District Attorney Robert Johnson called Schechter's allegations "outrageous," and Schechter's own bar association section passed a resolution disowning his statements.

Yet a number of former prosecutors have made similar observations.

Mortimer Lawrence, Claude Stuart's former colleague at the Queens district attorney's office, testified at a disciplinary hearing for Stuart that supervisors bore some responsibility for Stuart's troubles.

"I know there to be an unspoken pressure on assistants to press the edges of discovery and evidence and just how far you go," Lawrence said in his testimony.

Stuart lost his job in 2002 and had his license to practice law suspended in 2005.

Ryan, the Queens chief assistant district attorney, stressed that once Stuart's supervisors knew of his misconduct, they moved swiftly to alert disciplinary authorities.

To critics, however, Stuart's pattern of abuses shows how much a prosecutor can bend the rules before suffering any consequences.

Over the course of his career, Stuart's tactics prompted appellate courts to toss two other convictions in addition to Bennett's and forced his superiors to abandon at least one other case, records show. He also had received a private letter of caution from a disciplinary committee related to one of the reversals, although his bosses say they were not aware of this.

Yet, until Stuart's forced resignation, there were no signs that Queens District Attorney Richard Brown saw him as a problem. Instead, Stuart had garnered a string of raises, promotions, and positive performance reviews, winning a reputation as an aggressive litigator, according to records and interviews.

"We have a broken system," said New York University legal ethics professor Stephen Gillers. "We disbar lawyers for taking two hundred dollars from a client's escrow account, even if they return it. But there are rarely consequences for someone who has stolen someone else's due-process rights and possibly put an innocent person in jail."

* * *

In the early 1990s, parts of Queens were plagued by Chinese gang violence. There were the White Tigers and the Green Dragons, grudges and guns.

In 1992 prosecutors charged Shih-Wei Su with ordering the attempted executions of two Green Dragons in a Bayside pool hall.

The star witness for the prosecution was man named Jeffrey Tom. Tom had agreed to testify that he heard Su order the shootings in exchange for prosecutors scaling back a criminal case against him.

But at trial, under questioning by Queens Assistant District Attorney Linda Rosero, Tom denied any deal with prosecutors existed. Rosero let the lie stand and then, in summation, lauded Tom's testimony as "truthful and honest."

Su, 19 at the time of his conviction, was sentenced to 16 to 50 years in prison.

It would take years, but the conviction did not survive. Su's lawyers successfully proved a deal had existed, and in 2003 a federal court overturned the outcome. The judges savaged Rosero, calling her conduct "repugnant to the Constitution."

Su filed a wrongful-conviction suit against the city, but he wanted Rosero punished, too. With the help of his attorney, Joel Rudin, he lodged a disciplinary complaint with the Second Department Grievance Committee. Rudin shared the correspondence with ProPublica.

To trigger investigations against prosecutors, grievance committees depend largely on reports from defense attorneys, who may be reluctant to come forward and antagonize a prosecutor with whom they must continue to work.

ProPublica interviewed eight current or former disciplinary committee officials, who said they recalled very few complaints filed about prosecutors.

Average Outcomes of Attorney Complaints Filed in Manhattan and the Bronx, 2001 to 2009

 

 Complaint Dismissed
 Attorney Privately Reprimanded
 Attorney Publicly Reprimanded

Average Outcomes of Attorney Complaints Filed in Brooklyn, Queens and Staten Island, 2001 to 2009

 

 Complaint Dismissed
 Attorney Privately Reprimanded
 Attorney Publicly Reprimanded
Note: The department that adjudicates attorney complaints in Brooklyn, Queens and Staten Island also considers cases in seven additional counties north and east of the city.

The committees operate almost entirely in secret, dispensing little public discipline—disbarments, censures, or suspensions. Between 2001 and 2009 (the latest year for which data are available), just 1 percent of the roughly 91,000 complaints received by the First and Second Department committees resulted in public sanctions. And just 5 percent of all the complaints resulted in even so much as private letters of caution or admonition, which remain confidential to all but complainants and the attorneys who receive them.

Though prosecutors are public employees, members of the public have virtually no way to find out if they have been sanctioned privately or why.

Ellen Yaroshefsky, a Cardozo Law School professor, has tried for years to obtain records of complaints and disciplinary actions against New York prosecutors. The disciplinary committees have refused to comply, citing confidentiality laws.

Richard D. Willstatter, former president of the New York State Association of Criminal Defense Lawyers, argues that prosecutorial oversight should be more transparent.

"We understand the need to protect attorneys from scurrilous complaints, of course, but we don't think these rules should apply to public officials like judges or prosecutors," Willstatter said. "If the information is brought to the attention of the public, then it is more likely that there will be pressure to make the system fairer."

To critics like Yaroshefsky and Willstatter, private discipline can be a grossly inadequate way to hold prosecutors accountable.

Certainly, Su's bid to have Rosero punished fizzled.

As part of the disciplinary process, Rosero claimed her supervisors pressured her into trying a case "thought to be a loser." Still, she insisted her handling of the witness testimony was an innocent mistake, not gamesmanship to score a win.

Rosero, who has left the Queens District Attorney's office, declined to comment about the Su case. In a letter to the grievance committee, her attorney, Jerome Karp, said that Rosero, who had been with the Queens District Attorney's office for five years when she tried Su, had been "naïve, inexperienced and, possibly, stupid."

In December 2004, the grievance committee decided to issue Rosero a confidential letter of admonition. Publicly, Rosero's record remained unsullied.

Su would not relent. While there is no formal appeals process for disciplinary decisions, nevertheless Su wrote back to beg the committee to reconsider: "How is it possible that an experienced prosecutor who knowingly broke every bar association code, every Constitutional law, and more, only gets an admonition?" he asked.

The committee was unmoved.

"The matter," it told Su in a letter, "is closed."

* * *

Queens Assistant District Attorney Elizabeth Loconsolo was a rising star when, in October 1989, she began work on what appeared to be a horrific case of child abuse. Amine Baba-Ali, a 33-year-old Algerian man, had been charged with raping his 4-year-old daughter in the midst of a nasty divorce with the girl's mother.

Loconsolo had recently won several high-profile rape cases, including one against a man known as the "duct tape rapist" for his use of the material in assaulting eight young girls.

Critical to the Baba-Ali case were medical evaluations done on the child. One examination, done less than a week after the alleged rape, showed no indication of physical harm. Another, done more than three months after the alleged assault, supposedly showed evidence of rape.

Loconsolo used the damning examination results at trial. But she didn't turn the potentially exonerating results over to Baba-Ali's lawyers until the eve of his trial. His lawyers never used the material in his defense.

Baba-Ali was convicted of rape and sodomy and sentenced to up to 25 years in a maximum-security prison.

Less than a month after the conviction, Loconsolo was given one of the biggest pay raises of her 10-year career and eventually rose to head the office's Major Offenses Bureau, the first woman to hold the post.

Two years later, Loconsolo's victory was thrown out by a state appellate court. The court ruled that Loconsolo's handling of the exculpatory medical records was "inexcusable" and a violation of a direct court order.

Baba-Ali was freed in January 1992. Loconsolo, despite the stinging rebuke, got another raise later that year.

Loconsolo's career underscores a question that has frustrated defense lawyers and legal experts for years: Why don't district attorneys reliably punish assistants under their command?

Senior prosecutors across the city insist they have reprimanded subordinates whose actions have resulted in wrongful convictions and have used such cases to guide how all staffers are trained.

But ProPublica's review of personnel records for assistant district attorneys involved in the 30 harmful misconduct cases showed that none of the prosecutors were dismissed, demoted, or sanctioned in any formal way except for Claude Stuart. (We have not received personnel records for prosecutors involved in three of the cases.)

The records were often incomplete, but at least seven of the prosecutors received raises or promotions after convictions were reversed.

Joel Rudin, the lawyer who handled Su's civil suit and who now represents Jabbar Collins, found a similar pattern in older personnel records obtained from Queens and the Bronx as part of litigation on behalf of defendants who were wrongfully convicted.

In a 2011 article for the Fordham Law Review, Rudin wrote that just one Bronx prosecutor found to have committed misconduct by appellate courts in 72 cases from 1975 through 1996 was even briefly disciplined by his superiors.

The same prosecutor was blasted in three more appellate opinions over the next three years for conduct described as "egregious," "outrageous and abusive," and "improper and tasteless," Rudin found.

None of the Queens prosecutors who handled 73 cases reversed by appellate courts between 1985 and 1998 based on misconduct even received a negative performance evaluation, Rudin found.

In most of the 30 reversals examined by ProPublica, where courts cited prosecutors for harmful abuses, city district attorneys maintain that no abuses occurred, only mistakes.

Of the 12 cases involving Queens prosecutors, Queens Chief Assistant District Attorney John Ryan said the only ones involving bona fide misconduct were those handled by Stuart. The others were either inadvertent errors, the fault of police, or "simple disagreements over the requirements of the law" between prosecutors and the court, he said.

In the eyes of Manhattan prosecutors, none of the six Manhattan reversals involved true misconduct, Chief Assistant District Attorney Daniel Alonso said.

"Some judges opined that a prosecutor had acted improperly, while others disagreed," Alonso said in an email to ProPublica. "This is the nature of criminal litigation, and it happens with respect to defense lawyers and judges as well as prosecutors, the overwhelming majority of whom are simply making judgment calls in good faith."

The judges in Baba-Ali's case could hardly have been more emphatic about Loconsolo's misconduct and its consequences. And it was not the only time she would have her work criticized. In October 1992, she had another child abuse conviction reversed by a federal judge, who found "troubling issues" with the prosecution.

As far as her personnel records show, however, Loconsolo was never formally reprimanded by her bosses. She stayed in the Queens office, got another raise, and was assigned to head what was known as the intake bureau, where she would oversee and train young front-line prosecutors making sensitive judgment calls on how to handle new arrests.

Baba-Ali, released from prison after two years, wanted compensation for the years he'd lost and the horrors he'd experienced in prison. He filed a complaint with the state court of claims, saying that when he was incarcerated, mostly at Sing-Sing correctional facility, he was beaten and had witnessed, among other things, a young inmate serially gang-raped as guards looked on. Perhaps most damaging, Baba-Ali claimed, the case had left him permanently estranged from his daughter.

State Court of Claims Judge Melvin Schweitzer didn't spare Loconsolo. He said what she did was "tantamount to fraud" and awarded Baba-Ali $2.1 million — an award the state is still contesting to this day. Last June the State Court of Appeals sent the case back to the court of claims for retrial.

In a letter to ProPublica, Ryan said Loconsolo "has maintained for the last twenty years that she disclosed the records in a timely manner" and there was no reason to take any action against her.

Loconsolo, who didn't respond to requests to be interviewed for this article, seems to have done just fine.

She's now general counsel for the Nassau County Sherriff's Department.

"You just can't expect the district attorneys to hold their own people accountable for wrongdoing," said Hugh Mo, a former New York Police Department deputy commissioner and Manhattan prosecutor who is now in private practice. "It's a serious conflict of interest."

* * *

Prosecutorial misconduct, and how to deal with it, is not a new legal topic. For years, defense attorneys and prosecutors have debated ways to keep prosecutors in line and discipline them when they err.

In the last few years, the New York State Bar Association has taken on the issue of how to define prosecutorial misconduct and what should be done about it as part of a larger initiative to address wrongful convictions.

In a 2009 report, the group made several recommendations aimed at stiffening oversight of prosecutors and stamping out problems with evidence disclosure.

New York lawmakers have introduced several bills incorporating the bar association's ideas. Some are pending this session, but none have gained much traction. The District Attorneys Association of the State of New York has opposed them, and city district attorneys have said they could adversely affect public safety and are unnecessary in light of their own efforts to improve training and oversight.

There is ample skepticism among defense lawyers and other legal experts that any reforms will prevail.

A former grievance committee member, who declined to be named because of his ongoing work with the courts, said the state's most senior judges could take the lead and make something happen.

"I think the presiding justices would have to recognize the seriousness of the situation and take the initiative and say, ‘Listen, from now on, when you identify an act of misconduct, you have to open up an investigation,'" he said.

Prosecutors in Manhattan and Brooklyn say they have moved voluntarily to accomplish some of what the proposed legislation would have mandated.

The offices have set up conviction integrity units to review cases in which there is compelling evidence of innocence. The Brooklyn unit has assessed 14 cases and exonerated three defendants since it was established two years ago. Manhattan would not provide details about its unit.

In October 2009, the Brooklyn office created an internal ethics panel to investigate allegations of misconduct made against its attorneys. Based on the panel's work, Brooklyn officials said, two attorneys have been asked to resign. Another resigned in May while the ethics panel was investigating her conduct in a rape case.

John O'Mara, who leads the Brooklyn Conviction Integrity Unit, said these steps make outside intervention unnecessary.

"We are comfortable with our current system," O'Mara said.

Outside observers are less certain.

"You can't have a system where everybody that has the ability to do something about a problem is saying ‘it's not my responsibility,'" said professor Steven Goldblatt, a former prosecutor who is now director of the Appellate Litigation Program at the Georgetown Law Center. "There is a public trust at stake here."

Aarti Shahani and Melanie Hicken contributed to this report.

Live chat: What is being done to improve oversight in these cases? Join reporter Joaquin Sapien and a team of legal experts this Thursday at noon ET to discuss our latest investigation into prosecutorial misconduct. You can also tweet questions with #PolicingProsecutors.

A big problem seems to be that, largely, nobody cares.  Normal people don’t investigate arbitrary cases to see if they think the person is guilty, unless the national media turns it into a circus—heck, most people don’t even hear about cases if they’re not explicitly in the news.  Add to that the fact that the Constitution insists that we’re innocent until proven guilty exactly because the typical inclination is the opposite.

So what we have is a system that acts unethically, but it does so in the service of stopping people we assume are bad guys.  And the average person looks at that and figures it’s like a cop shooting a violent criminal, distasteful, but “whatever gets the job done.”

Unfortunately, that’s also a crappy world to live in, and expedient choices always call a person or organization’s credibility into question in the long term.

That said, I agree that the number of infractions is probably small in comparison, but the number—especially among people whose job it is to credibly decide someone’s guilt or innocence—should be zero.  We’re not talking about bugs in software or flaws in a scientific theory.  We’re talking about the behavior of human beings who are employed by the government and have formal responsibilities to their office, their profession, and the people.  If the people in charge can’t manage this, they should probably step down.  The American people (because New York City isn’t unique, here) don’t grade on a curve.

adele bernhard

April 3, 2013, 10:41 a.m.

nice work Joachim

“doing what you have to do”.....seems like it applies across the board here, from the necessity to bring the atrocities of empowerment gone wrong to light as well as its struggle to provide a safer society in which the majority of a law abiding populace can live…I would have selected a more appetizing example, perhaps one of those buried in the article, to make a point…but then you are only “doing what you have to do.”

How come there’s a list of defendants who were wronged but not the names of the prosecutors who were blamed for the wrongdoing? Aren’t their names and the kind of cases they messed up on and how they did so, a public record? Looking at the story it looks like only three prosecutors in a decade of cases were actually investigated

Clark Baker (LAPD ret)

April 3, 2013, 12:56 p.m.

Despite having arrested thousands of felons since 1980, I’ve been concerned about prosecutorial indemnity for MANY years.

While prosecutors claim that indemnity allows them to perform their duties, thousands of other public servants perform their duties every day despite the absence of similar indemnity.

Most of the prosecutors I’ve worked with are honorable, but most city, district and state attorney offices are political, which generates pressures that can influence even meritorious cases in nefarious ways.  Until prosecutors understand that deliberate misconduct can have a detrimental effect on their pocketbook, “badge-heavy” lawyers will continue to abuse their powers to the detriment of the innocent.

Clark Baker
Principal Investigator
OMSJ.org

The idea is that we’re supposed to know who is sitting in our public offices, DAs and all, BEFORE they get elected to office so we can check their backgrounds and make certain they are capable of meting fair justice in ALL cases and to make certain they don’t have backgrounds as members of any hate groups or political ties that may sway or interfere with their ability to decide.

It is a direct result of not watching who is running our government BEFORE they start running it. It’s supposed to be “the people” who police them before they become the police.

However, even with a citizens ‘watch’ community in place [AND EVERY SINGLE SOLITARY STATE, MUNICIPALITY AND JURISDICTION IN THE NATION SHOULD HAVE ONE IN CRIMINAL CASES (as well as citizen ‘arbitration’ committees for civil cases that could be prejudiced or unduly influenced)], error (and bribery) is still possible.

Still NO judge and NO prosecutor and NO jury should ever have a final FINAL say until the case is thoroughly reviewed externally by an independent board of everyday citizens and business people in the community with jurisdiction. The jury gets to decide guilt or innocence, but the case (all criminal cases) should still be subject to automatic review by an independent public judging committee in each and every case for extra insurance against abuse of judicial authority. Judges, policemen and prosecutors have come up with dirty hands one time too many, especially when dealing with certain racial ethnicities across the nation.

Too many errors are made in the system for anyone to keep overlooking the fact that the Fed should order Citizens Watch Boards for every state and jurisdiction where there exist courts with judges and prosecutors who can take away someone’s life and freedom with the sweep of a pen.

Those who find this piece troubling might want to review two similar cases:

a ) Michael Morton, who served two decades before being vindicated in a prosecutorial misconduct case in which the prosecutor had subsequently been named a judge by Texas Governor Rick Perry.  Texas Monthly has a great two part piece on this case.

b ) John Grisham has a great non-fiction book “The Innocent Man” about a guy who had messed up his life and was named by the local police when there was a murder in an Oklahoma small town.

Incidentally, one thing that amazes most people is the enormous amount of power that country sheriffs have.

I was a criminal defense attorney several years ago in Orange County, California.  On a local level, prosecutors and defense attorneys did a good job of policing their own.  Everyone knew who the bad guys were.  If I had an unethical prosecutor, I contacted the head D.A. and lo and behold, he was replaced.  I’m not certain what is happening today, however, I am aware that the SOL at UCI has changed their curriculum to emphasize ethics the first year.  I don’t condone bad behavior, but you will never get rid of all the rotten apples.

I would imagine that in the vast majority of cases of prosecutorial misconduct, the overwhelming criterion driving the prosecutors actions is career advancement. And while there are prosecutors who are pathological enough to fabricate evidence in order to secure a conviction in order to advance their career, there are far more, who persist in an unwarranted prosecution, hoping to badger the defendant into a plea, and thereby cover their own incompetence.
I was the subject of an unwarranted prosecution 14 years ago, that was so egregious, that I remain bitter to this day. The last time I received a jury summons, in 2008, I responded that I am not qualified to serve as a juror in Bexar County, Texas, because my experience with the judicial system in Bexar County was so traumatic that it renders me incapable of weighing an allegation made by an attorney (prosecutor) without profound prejudice.

Mad Scientess

April 3, 2013, 2:40 p.m.

Great job. Now would you please look into the family court where victims of domestic violence are abused by the court system and their abusers, and never receive the domestic violence assistance they are entitled to.

http://vimeo.com/8593689

http://nowayoutbutone.com/

Women and children are in danger and in desperate need of your help.

And on the other end of the spectrum you have the prosecutorial overreach of a Carmen Ortiz who hounded an innocent Aaron Swartz, who’s only real crime was simple trespass, to the point of suicide.

She piled on the far-fetched and inconceivable charges to the point that he was facing 40+ years in prison and personal ruin. She refused to even consider any sort of plea bargain, but Obama and Eric Holder never tired of singing her praises.

Meanwhile HSBC openly launders the money of drug cartels and murderers in the 100’s of Millions, and Steve Cohens of the world trade 100s of millions on insider information and these sociopathic prosecutors are silent.

Ortiz is the textbook example of prosecutorial overreach and not only does no one ‘police’ her, she’ll probably get a promotion.

frantz gedinez

April 3, 2013, 4 p.m.

Please people go check this out case# 05 cr1162 Southern District court of New-york and Appeal case# 07cr1586 Second Circuit Court of appeal.Because they judge,prosecutors,lawyers all of them violates my due process rights.I went trough Hell.I was beating. They put me in Box, they put me and private plane flew me to psychiatric wall.After they make sure for me to get deported to Haiti. I went to a hunger strike i was beaten in sexually abuse in Boston,Krome detention center.Did we still have people in this country who stand against injustice!! Immigration# 072088090 i still have to check-in with ICE in 26 federal plaza. I need help My # 347-5690928 My email .(JavaScript must be enabled to view this email address) Help

sadly but true our prosecutors are more criminal than the people they put in jail as a rule of thumb, but there are one or two just havent met any personally only met the ones on the take i think they used to be lawyers anyway how many honest lawyers you know

Not questioning the facts of this story, necessarily, but certainly questioning the timing so shortly after the murders of the Kaufman County. Texas prosecutors and wife. Really

Gary k., if anything I would put I’m eligible for jury duty. I would not mention was convicted or indicted and go through as a juror . & if I saw prosecutorial misconduct or prosecutorial malicious would still go through as a juror. And I would tie up grand jury w/ a conviction by a seeking to get a ‘feather in the cap’ prosecutor , that is what I would do.

By the way Beverly , this is called payback time & karma for malicious & overzealous prosecutors as far as what happened in Texas (Kaufman county). You wrong people there is a karma that happens . and maybe that’s why new prosecutor withdrew from Texas case. He would be next one knocked off. Many prosecutors lie, withhold evidence & suppress evidence & do case for political/career advancement

With respect to the sage advice rendered above by rb, Gary k. you could open yourself up to a world of trouble if you answer any jury pool questionaire in anything less than a fully truthful manner.  You have a couple of strikes against you and some might think that some of the allegations in the past had some merit.

Life is too short to open yourself up to avoidable difficulties of this nature.

I was recently called for jury duty in a local court in Fl.and when I was asked by the judge(a rather pleasent fellow),if I would have any problems with a trial I stated that,because of the many false imprisonments here in Fl. and across the USA,I could not convict any person based on any evidence from the PD,prosecutor or prison snitch! I was immediatly discharged before I could say any more!

Listen dormand, in Italy convicted felons of past time can serve as jurors. And as far as lying - prosecutors in the u.s. are biggest liars. And as I paraphrase ex judge Sal wachtler a number of years ago, and as I quote ‘prosecutors can indict a ham cheese sandwich with what they misrepresent and lie & withhold evidence’. If I got called for jury duty I refuse to be honest with my past with legal stuff. I think whole u.s. justice system a lie, agenda driven and politically/career driven. It convicts innocent people & makes not guilty, guilty people. Whole usdoj & local justice system a scam & con. Lady justice with scales has died. & died a number a years ago.

I have been following the stories of the wrongly convicted for years and my hair still stands on end when I read about instances of misconduct and/or incompetence of the police and prosecutors.  There needs to be an oversight system of appointed lawyers to review cases.  The appeal system only reinforces convictions.  Perhaps an appointment process instead of elected officials would be more appropriate for criminal justice.  In Canada we use an appointment system but from time to time judicial misconduct issues are discovered.  A big-city coroner was biased against parents in cases of suspicious child deaths and a number were convicted and served jail time before it came to light that the parents had not harmed their children and were innocent.  It took a number of years to get him removed from his position and his victims released from prison.  It is time to review and fix the “justice” system in both Canada and the US.

76 year old Patrick Dunn remains incarcerated in Corcoran in California for a murder he did not commit. Read Mean Justice the prosecutor made a deal with a heroin addict to arrest Pat…the jury was railroaded by a zealot who became the foreman ....

76 year old Patrick Dunn remains incarcerated in Corcoran in California for a murder he did not commit. Read Mean Justice .  the prosecutor made a deal with a heroin addict to arrest Pat…the jury was railroaded by a zealot who became the foreman ....

Laura that prosecutor along w/ juror heroin addict should share same jail cell together . for a railroaded conviction along w/ circus judge who permitted it in his or her court. Like I said b4, lady justice died a number of years ago.us courts are in shambles w/ jury nullification all over place . guilty being innocent and innocent being guilty. Overzealous, agenda driven prosecutors and career/political driven prosecutors along w/ judge for cases should be fined and jailed (& not cushy jails) for doing cases for illegal reasons. I’d like to see it in my llifetime. For accountability of judges & prosecutors that should be fined & incarcerated in real animal prisons not cushy ones.

Why is Radley Balko not mentioned in this article? He’s been reporting on things like this for years.

On these recent few pieces citing severe misconduct, organize the facts and present them in a logical, NON-EMOTIONAL BASIS to whomever you find to be the most effective investigative journalist in that area.

If you rant and rave, expect to be disregarded by all.

Good luck!!!

I think that many posters hit the nail on the head when they used the word ethics or ethical.

Ethics, morality is learned from the bottom up from institutions such as the family unit and church. From the top down in schools (lower-grade), higher ed, institutions of government and business.

When institutions look the other way meaning no punishment being imposed then the institution is sending a message that winning at all cost is acceptable.

The article you have written proves the point. I am not sure that the justice system is totally broken just that we have broken characters (moral responsibility, ethics or the building blocks of good character).

As we adults make our way into the workplace we have a way of compartmentalizing right and wrong. When ethics does not exist at the top and those in charge reward bad unethical behavior then unethical behavior continues.

Unethical behavior was promoted from the top down in institutions of Wall Street and banks. No punishment to the top players and the wheel of bad behavior continues.

I’m confused!

We are talking about New York right?

New York, as in one of the three most corrupt parts of the USA, right?

New York, where buying of political offices happens all the time right?

New York, where corrupt politicians like the Clintons go, right?

New York, where it takes more fulfilling of residency requirements to get help than it takes to get (purchase) elected!?!

What exactly is there to be suprised about this sort of thing happening in New York?  I mean if this were happening on Wisconsin or Minnesota or the Dakotas, now that would be news, but New York that is not news except maybe old news.

Pretty good article, but does not clearly differentiate between the term of art “prosecutorial misconduct” and true ethical lapses, or even despicable, and knowing Brady violations.  When a prosecutor makes a mistake in trial, it is labeled “prosecutorial misconduct” at the appellate level.  When a trial judge makes a similar mistake, they only “err” in the eye of their appellate brethren.

That said, not all prosecutors who commit even Brady violations do so knowingly or with bad intent.  The vast majority of Brady violations I have seen in my career as a prosecutor are a result of the police not telling the prosecutors everything they know.  At the appellate level ALL knowledge of the police in a certain case is imputed to the prosecutor.  Simply put, even if the prosecutor does not know about the Brady evidence, he is deemed to have known about it because the police and the prosecutor are deemed to have been on the “same team.”  Case in point: A prosecutor I supervise was preparing for a DUI trial.  Two officers were at the scene dealing with the driver who had, in fact, been drinking.  The driver was arrested based upon the preliminary investigation by officer A.  The driver then refused to provide a breath sample to establish his alcohol level.  In preparing for trial the young prosecutor should have talked to officer B, whom she did not plan on calling to testify.  I prodded her to speak to officer B, and she was only able to after the jury was picked and sworn.  (There are no criminal discovery depositions in my jurisdiction in this kind of case, and no, prosecutors have no unique power to make police return our calls, either.) Officer B told her he did not agree with officer A’s decision to even arrest the defendant, and, in fact, called both he and A’s supervisor on a cell phone in an attempt to stop the arrest.  This is the most common Brady violation I have seen in cases ranging from misdemeanors to murder.  We immediately called the defense attorney, notified him of the Brady “violation” on our part, and dropped the case.  Had Officer B remained behind the thin, blue line of silence, perhaps an innocent would have been convicted.

Here is my proposed rule for any prosecutor who thinks they might have Brady evidence: Always disclose it!  If it is Brady, that is your ethical duty, and if it is not Brady, it should not materially hurt your case.

Paul-,basically your agreeing with Sal wachtler judge that prosecutors are scandalous in not presenting all evidence of case. Withholding , tayloring, suppressing evidence of case. If that is proven after fact w/ conviction / indictment judge & prosecutor should be fined and jailed & not cushy jails but real hardened animal jails.

Start bringing cases, even old cases like my federal case w/ msm news media exposure.

Judge & prosecutor should go to jail like judge edward korman of eastern federal court, Brooklyn, ny & Andrew luger esquire of past eastern federal court, brooklyn, ny now of Minneapolis, minn private law firm. Bring them to jail (real animal jails not cushy jails) and fine them to set an example to other judges & prosecutors that do this behavior.

Peter, no one expects prosecutors or the judicial system as a whole to perform perfectly, that wouldn’t be realistic. However, it is reasonable to expect them/it to perform honestly. My previous comment, 9th from the top, refers to a prosecutor ignoring the written reports of 2 police officers (who honestly and correctly reflected the situation), filing charges (4 months after the alleged incident), then over the course of a full year, attempting to shove a plea deal down my throat, when I was clearly the victim and not the perpetrator. You may be wondering why a prosecutor would act in such an unprofessional manner. My only explanation is pressure from misguided, but very powerful local constituents.

Dear Mad Scientess (posted above) Thank you for your comment above. Ditto from me!!...

“Great job. Now would you please look into the family court where victims of domestic violence are abused by the court system and their abusers, and never receive the domestic violence assistance they are entitled to.

http://vimeo.com/8593689
http://nowayoutbutone.com/

Women and children are in danger and in desperate need of your help.”

AND, for rb, just above. This is the kind of extremist, “racist” thinking that is at the root cause of corruption, based on “the ends justifies the means” rationalization.

Scams, cons, frauds, criminal activity, immorality, etc. is not linked to religious persuasion, nationality, gender, race, political convictions, etc. As they say in spanish “Hay buena gente y mala gente en todos partes del mundo.”

Quenby

I would love to start seeing prosecutors & judges names plastered all over the place w/ illegal cases they have done in past like my 10-31-1989 case from new Hyde park, long island, ny . That too that was published in msm news media as they had done to me ‘Asso’CIA’Ted news press’, as article went From 10-31-1989->11-03-1989, as what’s good for goose is good for gander. With judge edward kormans name & Andrew luger name published in msm newspaper for illegal fraudulent agenda & political/career driven case.

Paul, the most significant difference between New York and the rest of the world is the high concentration of journalists.  I’d tend to doubt that there’s much different between New York and any major city, corruption-wise, but other cities don’t have thousands of cub reporters ready to kill for a job.

I mean, there’s more money flowing through here, too, but everybody has stories at every level of prosecutor overreach and other corruption, so I doubt it’s isolated.  That’d be like saying that the epicenter of drugs is LA, because the people you hear about going to rehab are celebrities.

Then there is the other end of the spectrum.
Melinda Loveless masterminded the 1992 kidnapping, torture, and murder (burned alive) of 12-yr-old Shanda Sharer. Hope Rippey assisted her; Search: “Shanda Sharer”
Both belong(ed) to a raciest prison org called ICAN, only Caucasians in this grant-funded org.
http://www.youtube.com/watch?v=1jjBo93K8T0 

Hope Rippey was in the ICAN program and was released early under suspicious circumstances in 2006.
Search: “Hope Rippey”+”Early Release”
Melinda made an attempt at release in 2007 but was denied, public petitions played a part. No one knows who paid for her lawyer but both women are white and “Born Again” in prison.
Sally Irvin runs the ICAN program and is affiliated with an all white prison ministry called Kairos, funded with “Faith Based Initiative” money.
http://kpmifoundation.org/index.php

ICAN’s mission statement is, “violent offenders are not allowed in their program.” So why is Melinda, and Hope before her in this program? Indiana prisons are overflowing with non-violent offenders, so better choices are available.

NASCAR driver Tony Stewart is also very much involved with the ICAN program.
Quote:
Irwin also said that ICAN partners with the Tony Stewart Foundation for financial support,
http://www.zoominfo.com/CachedPage/?archive_id=0&page_id=5094214752&page;_url=//www.rotaryofcentralindiana.org/index.php?option=com_content&view=article&id=64&Itemid=86&page_last_updated=2011-04-06T08:36:50&firstName=Sally&lastName=Irvin

The recipients of the dogs ICAN trains appear to be all Caucasian families. Hope Rippey now free is a follower of Sally Irvin’s ICAN blog as (Anna R) Anna is Rippey’s middle name.
http://icanholidaylitter.blogspot.com/

Christopher E.

April 6, 2013, 1 p.m.

I want to piggy back onto rb’s comment (April 4 @ 9:46). Perhaps someone should create an online database/blog where this information can be readily available including the prosecutors name (not address - I am not advocating violence, the case name, etc.  (There already is The Robing Room where people can rate and comment on judges.  http://www.therobingroom.com/ )

Perhaps this blog or whatever could be a resource for others to post actual court documents, etc., that can be used against these criminal prosecutors - yes - CRIMINALS!!  Prosecutors who do this are no better than actual thugs. Defendants only have their attorneys. Prosecutors have the police who give the air of authority and who are ready, willing, able and do lie. Look at the NYPD. (When I was a law student intern at the DA’s office, as a prosecutor was prepping a cop for testimony, the cop, who was getting frustrated, finally asked the prosecutor “What do you want me to say?”  I walked away. I later got a job at a private law firm instead.)

New York’s Disciplinary Committees (or whatever other moniker is used in the varying departments) really do nothing. They do not want to be bothered. Nobody becomes concerned unless it somehow affects their political career.

How do confidentiality laws such as those mentioned above square with the First Amendment, which seems to prohibit such laws?

These type of Prosecutors need to spend some time in prison with the people they have illicitly sent there! This is what is meant by the term Domestic Enemies! what appears to be occurring is a compounding of a system by the people who are there to uphold the Laws, all the while they are the people who need to be in “Prison” Michael Vecchione or as this article has it http://www.nydailynews.com/news/crime/brooklyn-prosecutor-michael-vecchione-hit-150-million-lawsuit-alleging-widespread-misconduct-article-1.138278

This is not just a problem in New York.  I and my family have experienced 1st hand prosecutorial misconduct and the laws that protect them.  My Capital Murder conviction of LWOP was overturned in 2009 and I was finally released from the infamous Tutwiler Women’s facility in Wetumpka,Al., Dec. 12,2012.  My prosecutor at the time of my trial was later sponsored by my judge for the Dist. Atty. position.  If it was not for unrelentless hours of not giving up and the representation of Equal Justice Initiative, I would still be in prison.  Presently, I’ve been ordered for a court appearance by the District Atty.‘s Office for nonpayment on fines, even though I’ve only been out for 5 months, I have paid 6months of full payments.  By the Dist. Atty.‘s actions and a protection of DR99 a 30% increase was added to my fines. Trying to find someone to listen and try to correct prosecutorial misconduct is dangerous and hard.  It is almost taboo!

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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