Two are now New York State judges. Several
others are accomplished lawyers at some of the city’s more respected firms.
Four have risen to be senior officials in the Brooklyn District Attorney’s
office, one of the largest municipal law enforcement agencies in the country.
These people – and likely dozens of others – are linked in at least
one, suddenly noteworthy way: they prosecuted cases over the last two decades
with Louis Scarcella, a former Brooklyn homicide
detective whose work, and possible misconduct, has become the focus of intense
public scrutiny. Charles J. Hynes, the current top prosecutor in Brooklyn, has ordered a formal review
of 50 cases
that Scarcella investigated, an enormous undertaking
that was prompted by Scarcella’s alleged role in wrongly convicting a
Brooklyn man of murder more than 20 years ago.
The stakes for Scarcella are obvious and serious: a
possibly ruined reputation; exposure to possible litigation; concerns about his
personal safety (he and his house have already received some formal protection
from the New York City Police Department.)
To date, Hynes has refused to say explicitly whether his inquiry will examine
the work done by the prosecutors who worked alongside Scarcella,
accepting his evidence, making use of the confessions he obtained, vouching for
the witnesses he helped locate and interview.
In emailed responses to questions from ProPublica, Hynes’s spokesman, Jerry Schmetterer, said that the investigation is “confidential.”
“We’ll go wherever the investigation leads us,” Schmetterer
said.
One person familiar with the inquiry said Hynes’s had enlisted a panel of former judges and lawyers to assist in the review, but it is unclear what precise role they will play.
But legal experts, defense lawyers for the men Scarcella
helped incarcerate, and Hynes’s political rivals have all said that any
investigation of Scarcella’s cases that does not
extend to the prosecutors who worked with him would be fundamentally suspect.
Certainly, should additional people be freed as
a result of Hynes’s probe, lawsuits would follow, efforts that doubtless would
seek to explore the role of prosecutors in any tainted Scarcella
case. Already, the one man freed because of concerns about Scarcella’s
work – David Ranta, who served 23 years in
state prison for the murder of a rabbi in Brooklyn – has filed a notice
that he intends to pursue a
malicious prosecution lawsuit.
Laurie Levenson, a former assistant U.S. Attorney who
now teaches criminal law at Loyola Law School in Los Angeles, said that if
Hynes truly intends to conduct a thorough investigation, his current and former
prosecutors should be scrutinized just as much as Scarcella.
“Frankly, there could be plenty of blame to go
around,” Levenson said.
The number of current and former prosecutors
whose handling of cases could be put under the microscope is formidable. Scarcella was a very active and aggressive detective
working Brooklyn at a time when there were hundreds of murders a year in the
borough. And the length of his career – 26 years – means that he
worked with succeeding generations of prosecutors.
The two prosecutors who tried the case against Ranta
have gone on to prominent jobs. Suzanne Mondo is now a Brooklyn judge; Barry
Schreiber is a respected defense lawyer. Neither returned calls for comment on
the Ranta case.
Scarcella, in recent interviews with New York
reporters, has cited the credentials of those prosecutors and others he worked
with as evidence that he could not have done what he has been accused of
– framing defendants, concocting confessions, coercing witnesses. He said
in one interview that Schreiber was
thrilled with his work in the Ranta case.
Scarcella’s partner for 12 years, Stephen Chmil, said that prosecutors were aware of their every
move. Chmil said he and Scarcella
regularly apprised prosecutors of their routine police work, notifying them of
arrests, identification procedures, suspect line-ups, and sharing with them
their notes of interviews.
“They knew what we were doing with the
witnesses,” Chmil said. “There was no secret stuff
that wasn’t turned over. Whatever we did, they knew what we were doing.”
The role and responsibility of prosecutors in
their work with detectives has been the subject of considerable debate as, with
each succeeding year, the examples of wrongful convictions has grown. A
prosecutor’s mandate — to win convictions or to determine the truth –
too often gets confused or clouded, experts say.
Eugene O’Donnell, a former New York police officer and prosecutor in Queens and
Brooklyn who now teaches at John Jay College of Criminal Justice, told
ProPublica that prosecutors often avoid asking too many questions because they
don’t want to risk weakening their case.
“Only on TV do these cases stand up on their
own; the reality is they are usually held together with a string,” O’Donnell
said. “If you’re trying to make a case against a guilty person you don’t want
to pull too hard on that string and have the whole thing collapse. The more you
know, the less sanguine you can be. It’s a dirty system, it’s an unsavory
system: built from the bottom-up with troubling tactics and techniques, born in
coercion and deception.”
Bennett Gershman, a professor at Pace University Law
School and an expert in prosecutorial misconduct, summarized his view of a
prosecutor’s top priority – the truth — in an article in the Georgetown Journal of Legal Ethics.
“The prosecutor’s duty to the truth arises from several sources,” Gershman wrote. “The most important source is the
prosecutor’s role as a minister of justice. In this role, the prosecutor has
the overriding responsibility not simply to convict the guilty but to protect
the innocent. The duty to truth also derives from the prosecutor’s
constitutional obligation not to use false evidence or to suppress material
evidence favorable to the defendant. The duty to truth also arises from various
ethical strictures that require prosecutors to have confidence in the truth of
the evidence before bringing or maintaining criminal charges. The duty is found
as well in the prosecutor’s domination of the criminal justice system and his
virtual monopoly of the fact-finding process.”
The Legal Aid Society has been given a list of 20 of Scarcella’s cases that involved their clients, and it has begun to pull together the documentary record.
“In our experience with cases of wrongful convictions, over many years and in all five boroughs, there are elements of misconduct by the police and elements of misconduct by prosecutors,” said Steven Banks, the Legal Aid Society’s chief attorney. “That’s why we for years have been calling for independent oversight of all prosecutors.”
Many of the prosecutors who worked with Scarcella
attended suspect line-ups along with him; they accepted the confessions he
obtained, and they ultimately decided to take people Scarcella
arrested to trial. In the courtroom, they vouched for the integrity of Scarcella’s evidence and won convictions. Then, when
defendants in some of the cases fought their convictions on appeal, prosecutors
denied wrongdoing and enjoyed the professional benefits of victory.
Some observers – both critics of Hynes and defense lawyers eager for his
review to be aggressive and efficient – have been frustrated at the lack
of details
Hynes has provided about how the inquiry is being conducted, and they have
questioned if he has the will and the resources to do such an epic and
potentially troubling review.
The group of prosecutors who either worked
directly with Scarcella or who oversaw the work of
the office’s homicide bureau includes Lance Ogiste,
who currently serves as counsel to Hynes, and Anne Gutmann,
who has the title of executive district attorney.
Ogiste worked with Scarcella on a 1997 case that involved the tragic murder of
a 4-year-old girl. According to the defendant, Sundhe
Moses, Scarcella rousted him from bed, dragged him to
a precinct, slapped him, yelled at him, and choked him until he signed a bogus
confession. He’s now serving a 15-year-to-life sentence.
Gutmann prosecuted a 1991
murder case against Derrick Hamilton based primarily on the testimony of one
eyewitness who has since recanted and alleged that Scarcella
coached her on what to say at trial.
In another case — a high-profile 1996 murder
and arson prosecution — one of three defendants said Scarcella
elicited a false confession from him by banging his head against a locker,
giving him a cut above the eye. At trial, the defendant’s
lawyer, Ron Kuby, said “after that kind of treatment,
I think he was ready to confess to any crime in the city.”
That case was tried by Joseph Alexis, a 22-year
veteran of the office who now heads the Rackets Division, and Jonathan Frank,
who finished his career as an executive assistant Brooklyn D.A. in 1999 and now
works as a defense lawyer.
In each of these cases it’s not clear what the
prosecutors knew about Scarcella’s efforts to
persuade witnesses to cooperate and defendants to testify. Requests to speak
with the current or former prosecutors were declined.
For his part, Scarcella
denies the allegations against him in full.
“I have never, never, never fabricated one
letter of a confession in my life,” Scarcella said.
“It never happened in my presence and I would’ve never allowed that to happen.
I never physically manhandled or abused any defendant in any shape or form. I
always treated my defendants well.”
Those who, day in and day out, handled murder
cases when Scarcella was at his busiest also includes John O’Mara. O’Mara was Deputy Chief of the
homicide unit when Scarcella worked the Ranta case. And he later served as the top prosecutor in
the unit. Hynes’s spokesman would not say what O’Mara’s responsibility would
have been for decisions made in individual murder cases.
As it happens, O’Mara is today the head of
Hynes’s Conviction Integrity Unit, and the man who, at least initially, directed the Scarcella investigation.
