Journalism in the Public Interest

Problem Witness: A Case to Make Prosecutors Personally Accountable

Alexina Simon was picked up as a witness in a minor criminal case. Prosecutors in Queens held her over two days without a lawyer. Now, she wants to make them pay for what she says was misconduct.


The New York Criminal Court (Jewel Samad/AFP/Getty Images)

It wasn't much of a case: Queens prosecutors wanted to prosecute a woman for having falsely reported her car stolen in a bid to collect on theft insurance. A non-violent crime. Small-time really.

But the prosecutors went to unusual lengths in 2008 to try and make the case. They tracked down a person they thought had information about the alleged fraud, told her she was under arrest, and over the course of two days interrogated her in a room in the Queens District Attorney's office. The woman, Alexina Simon, was not a suspect. She was, in truth, nothing more than a potential witness.

Today, Simon is the named plaintiff in a federal case that has reached the U.S. Court of Appeals for the Second Circuit. The case is noteworthy for two reasons:

It shines a light on the issue of what are known as material witness orders, a poorly understood aspect of New York's criminal justice system in which people who are potential witnesses to crimes can be detained, evaluated and perhaps compelled to disclose what they know.

The case is also seeking a remedy that those concerned about misconduct by the country's district attorneys have long sought, namely that individual prosecutors be held personally liable for their misdeeds.

Lawyers for Simon have argued that the prosecutors in the case failed to do what is required when such material witness orders are granted by a judge — bring the witness before that judge and make sure that witness has a lawyer. Simon, they say, had no meaningful information about the alleged fraud. That might have been sorted out had proper procedures been followed, they say. In all likelihood, they suggest, prosecutors not only would have figured out that she had no information, but also that she, owing to a mix up in names, was not the person they were actually looking for.

Instead, Simon says she was detained twice — arrested first at work and then at home the following day — and questioned for hours without a lawyer.

Lawyers for the Queens prosecutors have insisted Simon willingly cooperated and thus the warrant they had obtained, and the requirements that came with it, didn't apply. They argue further that, even had the prosecutors erred, they were, under the law, immune from being held personally liable for their misconduct.

A district court judge ruled for the prosecutors, holding that the broad protections given to law enforcement officials as they pursue cases applied in this instance. But the case was appealed, and since then, a brief has been filed by the U.S. Department of Justice in support of the district court's ruling and another has been submitted by defense lawyers in opposition. A decision is expected soon.

The issue of the use and misuse of material witness orders came under scrutiny after 9/11. Federal authorities used the warrants to lock up any number of people they suspected might have information about terror investigations. A subsequent lawsuit that sought to hold former U.S. Attorney General John Ashcroft personally liable for the abuse of material witness orders made it to the Supreme Court, which held that Ashcroft was immune.

The use of material witness warrants in state cases has garnered far less attention and the Simon case has to date been a relatively obscure one. But a lawsuit brought by a man who says he was wrongly prosecuted for murder could give the use of material witness warrants in state prosecutions an explosive airing.

Lawyers for Jabbar Collins, who spent 16 years in prison before prevailing in a rare federal petition for his freedom, have accused Brooklyn District Attorney Charles J. Hynes of running what amounts to his own civil jail system. Collins's lawyer, Joel Rudin, has charged in court papers that he has evidence Hynes's office routinely and illegally detained witnesses to compel and sometimes coerce testimony.

Hynes's office has denied the assertion.

For Rudin and other defense lawyers, the misuse of such warrants — locking people up until they tell a story the prosecutors need told to make a case — could be a central cause of the kinds of wrongful convictions that, again and again, have been uncovered across the country in the last decade or so. And they argue that the problem is not likely to be corrected unless prosecutors can be held personally responsible.

The abuse of such warrants, Rudin wrote in a brief that is part of the Simon case before the appeals court, "threatens the rights of individuals held as material witnesses to prompt arraignment, representation by counsel, and an independent determination of their status." Granting prosecutors immunity when they abuse the warrants, he wrote, "would deny aggrieved individuals any compensation or other remedy for their constitutional injuries and would encourage law enforcement authorities to continue such practices."

We surely can digitally help change a few heads at the top of our territorial judicial authority and only then, such incidents of injustice will discontinue to happen repeatedly under outdated model -designed by super wealthy lazy bums of the old
Visiting may help you see a real picture of secret but systemic manipulation of laws which is a commonplace in Northern part of our Great North-America.

home of the brave, land of the free—unless, of course some overzealous prosecutor decides not to wait for justice to work its way legitimately through a constitutionally guaranteed process. This is what 2013 looks like as we stand on the eve of 1984.

In this developing digital age privacy will be diminishing inevitably and mainly the super-rich thugs in disguise will benefit from outdated ‘privacy protection laws’, classified information type of old dishonesty motivated political instruments.

Every global citizen should have access to digitally captured every true fact whether it involves crime or wealth accumulation of a petty thief or a noble king or a social business, political head of state of any piece of lands on planet: Earth.

We surely can digitally help change a few heads at the top of our territorial judicial authority and only then, such incidents of injustice will discontinue to happen repeatedly under outdated model -designed by super wealthy lazy bums of the old
Visiting may help you see a real picture of secret but systemic manipulation of laws which is a commonplace in Northern part of our Great North-America.

People are being criminally prosecuted via persecution for things that aren’t unlawful and are being targeted to give them a record and to raise revenue to justify more police presence and to criminalize everyone so everyone is accounted for!. When did the law get so Orwellian that real criminals get off (even in the CA. judicial courts or county DA’s office..katy’ Who is behind this but the “corporate citizens” and we need to make sure that all professionals are being educated and trained correctly unlike the CA.UC Davis police (trained by the military) as done by all other U.S.A.police departments. Our due process, our near and dearly needed to protect us from tyranny, the 14th Amendment which is now only in the existence for the those who want to protect the 2nd Amendment by and for corporate citizens who are funding the DA’s supposedly for fraud (although innocents are being persecuted and prosecuted and the courts at all levels go along with this oppression of due process denial) but instead used for other criminal activity, racketeering anyone. This country is for the citizen corporations rather than for WE THE PEOPLE and our younger folks need to learn from their parents how dear our 14th Amendment is as well as our 1st.

I have a friend who spent 14 months in Rikers waiting for trial because he insisted he was not guilty of armed robbery, rape and other violence towards an older man. The jury acquitted 100% partly because the defense lawyers found ATM security videos showing no knife, the defendant walking into an ATM 6 feet in front of his accuser, not looking back to see if he was following, the two of them taking money, then the defendant walking out, again far ahead of his accuser. Then they stand chatting outside the bank while the defendant smokes a cigarette, they hug each other goodbye and walk away in opposite directions. Turns out, as the accuser said on his 3rd day of testimony in the transcript of the 10 day trial, when asked why he waited two days to report the violence and then only because his estranged wife who lived next door told him someone rang her bell by accident: “I didn’t want my wife and others to know” (he’d just been saying he’s not gay, but sometimes has sex with men.)  He had picked up the young defendant at a gay club and when the young man returned, the older man became afraid that his wife would figure out what was going on and use it in a divorce suit… so he went to the police to get a restraining order and was pressured into giving reasons.

How could the A.D.A. go to trial after seeing the videos? Because the Grand Jury, that did not see the videos, indicted (the defendant was young, brown and not American; the accuser was an older, white distinguished professional with a British accent) and the A.D.A. was forced to prosecute… but the videos had not surfaced before the indictment. The defendant was put in the Seven Main cellblock at Rikers with men accused of the most violent crimes, mostly gangs, afraid for his life… and 37 days in solitary because he did not dare tell the guards some cigarettes had been put in his pocket by a gang leader just before the guards arrived… if he “snitched” the gangs would cut him, as they did other inmates who irritated them. The defendant was suicidal in Rikers and, after acquittal, emotionally unstable for about three years.

All the A.D.A. did was tell the accuer the jury didn’t understand “reasonable doubt.” But jurors told defense lawyers they didn’t believe the accuser because there were too many discrepancies - and because of the videos. All because of the prosecutor or because of the gap between Grand Jury indictment and discovery of new evidence??

NO ONE in law enforcement or the judicial system—and this includes judges, prosecutors, jurors, witnesses, plaintiffs and defendants— should be immune from prosecution or censure for illegal acts, or those perhaps not illegal by reason of the law not specifically addressing them but patently unfair, prejudicial, and damaging to individual rights and the interest of fair play and justice. Exempting prosecutors only is an outrage, destroying even the illusion of a fair playing field, encouraging egregious misconduct, and assuring down the line expensive litigation where taxpayers pay court costs, fines levied upon prosecutors (if they ever are) and also share the ethical responsibility for gross miscarriages of justice where someone has been unjustly incarcerated or perhaps executed.

“And liberty and justice for all” who can afford it!

The CA fraud assessment commission receives about 33 million dollars form selfinsured corporations a year to go after fraudulent injured workers. How come they think that 33 mil is enough to go after about 700 people. When a person reports actual fraud by employers, judges, doctors and attorneys on both sides, the law becomes one sided. The courts are bought and paid for by corporations. Due process dos not exist for those who are falsely prosecuted and persecuted. One injured worker (ex police dispatcher) spent 2 months in solitary confinement for not telling her doctor she drove herself to his office (really that was it) and she had to drive herself because the police department’s 3rd party insurance carrier refused to pay for her rehabilitation. She was forced to do this on her own and then sent to jail for it. for TWO MONTHS in solitary confinement and losing her home and everything else she owned. This isn’t the first time that tax payer is used in an unlawful way! It had to go all the way to the CA Appellate Court to show she did not have any intent to not mention her drive. The many CA. Marin county DA;s when prosecuting her did not even know what her case was about and why would they, they’re the ones who receive part of that 33 million from the law of the land, bought and paid for BY corporations!
Women, minorities, older people, the poor are ongoing victims of victimless crimes. It’s all about revenue and ultimately control. Who gets the house, why lawyers or the state does.There are many parasites to assist corporations in persecution, theft, illness, injury and also death! Death brings in dead man policies for CEO’s retirement pensions by any of these workers!

if your poor or homeless you will be prosecuted to the fullest degree of the law weather your guilty or not. if your a huge corporation, or law enforcement the system will protect you. what type of persons are ok with this? im not. and it seems that they do want to make criminals out of all of us so that THEY can keep track of everyone. personal rights and freedoms are an illusion in this “free” country

take a quick look at what happened here in colorado a few years back with a very abusive prosecutor in arapahoe county. the denver da did press charges of abuse of power but lost. the system protected her


June 1, 2013, 3:18 p.m.

I was the victim of grand larcency for over $250,000 worth of jewelry.  You would think I was criminal.  My girlfriend stole my jewelry.  Police came twice. Did you see her take it? No.  Ok, sign this that you wont call us again.  In the meantime I was trying to get my jewelry back on my own.  On the 3rd complaint, an older officer finally took my complaint.  May 2009.  I also was contacted by a friend of her’s that she brought him a bag of jewelry and some autographed items and would he put them on Ebay for her.  Here comes the Detective….. meanwhile a good friend of mine saw her wearing pieces of my jewelry after my complaint and before her arrest.  they were at the same doctor’s office.  went for coffee and my friend asked if the jewelry was mine and she said yes, that I was still mad at her.  She lived in Staten Island.  when they went to arrest her almost 3 weeks later, she wasn’t home.  they called her to come back to Staten Island and brought her to the 5th pct in elmont, NY.  The detective called me after her arrest.  I asked if she was wearing any jewelry?  Yes.  Good, did you hold it for me to look at?  No, it didnt seem like it was expensive.  (gasp)..  Can I have a search warrant?  No,  And by this time I had discovered she pawned a few things by my house.  Her arraignment was 7/9/09.  the detective told me he told her to bring all my jewelry to the hearing.  Why not bring it to him, I dont know.  Well I went with a friend to the hearing.  We were standing outside the courtroom when she arrived with her girlfriend.  We were about 10 feet away.  Now mind you she doesnt know the detective told me what he told her to bring.  Before we were to go in, she reached into her pocketbook and pulled out a grocery type plastic bag.  You could see it was weighted at the bottom and heavy.  she gave it to the g/f who took it to car.  GONE!!!.  I didnt do anything.  My bad.  I contacted the detective and the ADA knows everything as I kept him informed and questioned him about what are we doing.  finally he calls the girlfriend in for questioning.  I am contacted to come identify some things. I did. A diamond bracelet signed cd and a spring jacket.  I wanted to speak to my det but he was busy with another case.  I complained to his commander and the DA about this woman having some of my things as I didnt know her, so where did she come to bring back to the station my property.  No one has done anything.  The case took two years.  she pled guilty to an A mis/3 years probation and financial restitution.  I even went to probation with all my paperwork as I was asking for $25,000.  I did not attend any of the hearings or sentencing as I couldn’t take th time off from work.  The restitution was $660 and I only know this because I followed the case on E-courts.  DIANE SPAGNOLO finally convicted.  I called probation and was told I was not on the restitution, only the pawn shop was.  Do you believe this?  I wrote the DA’s office on their site about this.  got a phone call and was told the police said I got my stuff back so there was no restitution.  I met with the ADA twice and was told I was getting restitution during the case.  Have a witness.  This ADA Kramer did nothing for me.  I had witnesses, pictures, receipts and complaints about the detective not doing a proper investigation.  I HAD TO VALUE the property that was recovered for the court.  since the conviction in 2011, I have called and been back to the 5th precinct to file charges against Eileen gould, the girlfriend who had brought some of my things back to the pct.  I was practically ushered out of the pct by the detective. Because I mumbled.. why do you and that was it.  This tall menacing law enforcement agent bellowed to me “This conversations is over!” and walked away.  Oh, my detective retired and when I called his partner about Ms. Gould’s involvement, he asked “what do you want to do arrest all her friends?”  I think my last DA assigned and the detective handling my case should be held accountable and I would sue them if I knew what to sue them for.  I feel like my civil rights were violated because it was a lesbian relationship.  And recently I spoke to the DA’s office again about this and was told the criminal case was over and there was nothing he could do.  He also commented on the extensive communication by me but alas there was no indication of a financial restitution.  “Take her to civil court”  She doesn’t have anything.  she lives off the government.  Time is ticking.  I have done a lot of research but I’m not a lawyer.  any suggestions would be appreciated


June 1, 2013, 3:43 p.m.

I wanted to add Ms. Spagnolo still has my jewelry and other personal items that were stolen.  Isn’t that great?  For some reason, even with a grand jury indictment, the things that werent recovered weren’t in play. But the DA had witnesses of her wearing my jewelry, my pictures and detailed info about almost all the pieces like he requested to bump up the charges and leverage the return hopefully, her girlfriend having my stuff and my persistence with the police and his dept.  He was inept, rude and misleading and he could have gotten a search warrant.  She was living with her ex-husband who KNEW she had my stuff.  He told her to give it back to me.  The Nassau County DA’s office did nothing for me as a victim.  The 5th precinct was under investigation for closing out complaints too quickly and my case was one of them in my opinion.
It seems the criminals have more rights and the victims are further victimized.  Yes, let them be accountable as a public servant.  I bought these pieces of jewelry for my daughter over 15 years ago for her future.  they were unique and expensive pieces that can never be replaced and at that time gold was $300 an ounce.  Ah, I just get aggravated all over again.  thanks for letting me vent

Two points made in the article strike me as at best amusing, at worst terrifying…

...bring the witness before that judge and make sure that witness has a lawyer.

It’s presumably a sign that we literally have too many lawyers in this country when we create laws that encourage witnesses to lawyer up, along with the prosecution and defense.  Perhaps the jurors should also hire lawyers, and the bailiff…

They argue further that, even had the prosecutors erred, they were, under the law, immune from being held personally liable for their misconduct.

Can I suggest that, when there’s a law that explicitly blocks prosecution of intentional wrongdoing by powerful people, that maybe that law is not serving the public and therefore should be struck down?  I realize this is a radical concept and not likely to get much support from the shielded officials, but…

Both the abuse of the Grand Jury and of the material witness by US authorities led to the abandonment of these practices in the other common law countries as early as 1933 in the case of Great Britain.

Bro. Keith "X" Hudson

June 3, 2013, 10:01 p.m.

I have successfully proved that prosecutors aren’t immuned from civil suits in the case of Hudson-v-Hughes, et al, USDC MD of La. 1998. But the federal judge who has been protecting the local D.A. for (30) plus years seem to always be alloted cases involving Prosecutorial Misconduct, and he ALWAYS dismiss it as frivolous and without merit, YET, the 5th Cir. remands it back to the this judge, and the political games begin. The U.S. Supreme Court has reversed (4) cases last year against this same office, YET, legislators refused to enact an ordinance/act/statute/law to protect citizens against this injustice. Most of the lawyers are designers (meaning they’re high priced nothings) who couldn’t win an appeal if their lives depended on it!

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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