From The Crime Report:
March 27, 2014
In October 2003, a star college football player named Mark Fisher was found
shot dead on a leafy, residential Brooklyn, NY street. The crime attracted intense media coverage and stymied investigators for months.
Indeed, according to a 2005 New York
Daily News article, it
wasn’t until an “elite team” was set up to investigate the killing,
headed by then Brooklyn district attorney Charles Hynes’ controversial
top deputy, Michael Vecchione— that prosecutors were able to break what
was termed the “wall of silence” and solve the case.
Ultimately, 22 year-old John Giuca and 19 year-old Antonio Russo were
arrested and charged with Fisher’s murder. At trial, both Giuca and
Russo were found guilty and sentenced to 25 years to life.
At the time, the convictions represented an important victory for
both Hynes (who was then running for reelection in a hotly contested
race) and the lead prosecutor, Anna-Sigga Nicolazzi, who in its wake
appeared on at least two TV specials about the case and has since made a
name for herself appearing as a legal commentator on Fox News and Imus
in the Morning.
From the beginning, however, Giuca maintained his innocence.
After he was convicted, his mother, Doreen
Giuliano,
befriended a man who had been a juror in her son’s trial, and then
documented, in secretly recorded conversations, that the juror had
undisclosed connections to the case and a bias against her son that
should have disqualified him from serving on the jury.
These discoveries became the basis of several appeals in which Giuca
argued that, because the juror failed to disclose his connections to
people involved in the case, he did not receive a fair trial.
All of these appeals failed, however, and until recently it looked as if Giuca would likely serve out his sentence.
Prosecutorial Misconduct?
But over the past year, Giuca’s new lawyer, Mark Bederow, with
assistance from Jay Salpeter, an ex-cop-turned-private investigator with
a specialty in wrongful convictions, has uncovered what Bederow alleges
is compelling evidence of improper conduct by Nicolazzi, the
prosecutor.
The alleged misconduct included a failure to disclose—as required by law—any benefit or expectation of a benefit given to a
witness, as well as vouching for that same witness’s perjured testimony.
Bederow and Salpeter have also obtained sworn recantations from three
prosecution witnesses, two of whom say they were pressured by police
and Nicolazzi into making false statements at trial.
Two other witnesses appear to have withheld information from
investigators and/or changed their stories multiple times, and both have
troubling connections to Hynes: one is the son of a woman who was a
member of the executive committee of the Brooklyn GOP, who crossed party
lines in 2005 to endorse Hynes for DA (and who allegedly gave her son a
false alibi to the press and told a neighbor to stonewall cops by
avoiding mentioning her son).
The other is
the daughter of a Hynes donor who, since 2012, has been working as an Assistant District Attorney in the Brooklyn DA’s office.
Bederow
submitted a petition to the Conviction Review Unit (CRU) of the office of the newly elected Brooklyn DA, Ken Thompson, who made
the issue of wrongful convictions one of the centerpieces of his successful campaign last Fall.
Conviction Review Units (also known as Conviction Integrity Units or
Post-Conviction Review Sections) are a relatively new phenomenon. The
first ones were established by DA Craig Watkins in Dallas in 2007 and by
former Harris County, Texas DA Pat Lykos in 2008.
They have begun to crop up in DA’s offices in other parts of the
country as well, including: Cook County, IL; Santa Clara, CA; Wayne, MI;
and Brooklyn and Manhattan in New York City.
In general, they involve the implementation of what are known as both
“front-end” and “back-end” reforms—measures to reduce the risk of
wrongful convictions before a case goes to trial and a process to
investigate claims of actual innocence after a conviction, respectively.
(Thompson’s office declined to comment on the substance of Bederow’s petition, citing the pending review, but did tell the
Daily News that “Anna-Sigga Nicolazzi is a respected and outstanding prosecutor who has an exemplary trial record.”)
Investigating ‘Gross Violations’
While many of the details about how Thompson’s CRU will operate have not yet been made public, a
February press release
from the office notes that it will consist of “experienced prosecutors,
investigators and support staff tasked with the responsibility of
conducting a thorough reinvestigation of cases identified as having a
colorable claim of actual innocence or gross violations of a defendant’s
constitutional rights.”
Thompson also appointed an outside panel of three lawyers to “advise
on a range of issues, including whether a conviction should stand, needs
additional review or should possibly be overturned.”
Drawing on comments Thompson made during his campaign, Bederow told
The Crime Report
that, considering Thompson’s pledge to make the review of questionable
convictions obtained under the prior administration a priority, “we
believe it is in everyone’s interest, including Mr. Giuca’s, to work
with the new DA and allow his staff to conduct a careful and thorough
review of the investigation and trial, including the evidence we have
uncovered, before resorting to adversarial proceedings.”
But is it?
While Conviction Integrity Units can play an important role in
implementing much needed “front-end” reforms—including enhanced
training, better discovery-related policies and procedures, the use of
videotaped confessions and improved practices related to eyewitness
identification—their value in evaluating post-conviction claims of
innocence is much more questionable, particularly in cases that don’t
involve DNA.
Indeed, lawyers with experience working with CIUs point not only to
their criteria for re-evaluating a case, but also to their structure and
staffing, as major obstacles to their ability to function effectively.
Although these various units are all involved in reviewing possible
wrongful convictions emanating from their own offices, they differ in
terms of their criteria for post-conviction review.
Standards for Review
While Dallas, Manhattan and Santa Clara all hold as their standard of
review whether there is clear and convincing evidence for a plausible
claim of actual innocence, the Dallas CIU has noted that it would relax
this standard if a post-conviction investigation uncovered “glaring
constitutional errors ” at trial, even if those errors did not clearly
relate to guilt or innocence—a standard that seems consistent with
Thompson’s proposed plan to look at “gross violations” of a defendant’s
constitutional rights.
Moreover, unlike Dallas, Manhattan will not reinvestigate a case if a
defendant knew or should have known at trial the basis for his current
claim—a standard that can, in effect, punish the defense for what is
often the failure of prosecutors to turn over certain material to them,
or for ineffective assistance of counsel.
Some CIUs will not look at cases in which a defendant pleads guilty,
regardless of research that shows that coerced or false confessions are a
common cause of wrongful convictions.
Perhaps even more important, there is no uniformity in how these
units are structured and operate. For example, while the Dallas
CIU—which is headed by a highly regarded former defense attorney—works
in collaboration with defense attorneys, local innocence projects and
law students, the Manhattan CIU, with a prosecutor at its helm, conducts
all of its post-conviction reviews internally.
To veteran defense attorney Ron Kuby, who has worked with DA
Conviction Integrity Units in Manhattan, Brooklyn and Nassau County, the
Dallas model is far superior.
“Number one, [in Dallas there is] complete transparency,” Kuby told
The Crime Report.
“Both sides share all of their information. We get everything in
their file, they get everything in our file, except certain privileged
communications. And second, the investigation is undertaken in a
collaborative way.
“We sit down together and we discuss witnesses. And we discuss…what
would be the best side to approach this witness. Should we do it
together? Should the defense pursue this witness because frequently the
defense is able to win trust where the police don’t, or should the
police pursue this particular witness?”
Going to Court
After representing witnesses in a case that was brought to the
Manhattan CIU, Kuby decided that he would never bring a case to that
office again. In fact, he has concluded that, whenever possible, going
to court is the preferable route because in that arena, armed with
subpoena power, “it’s easier [for the defense] to convince a judge that a
result would have been different at trial than to convince a
prosecutor.”
According to Kuby, “[Prosecutors] look for evidence to support the
conviction. And defense lawyers who are foolish enough to cooperate with
them end up serving up their witnesses, and [then the DA goes out and
collects impeachment information] on [those] witnesses.
“The truth is, the hallmark of great lawyering is making a totally truthful person look like a liar.”
Lonnie Soury, a public relations expert who has worked on numerous
wrongful conviction cases, including those of Martin Tankleff, The West
Memphis Three, Jesse Friedman and Jon-Adrian Velazquez, agrees.
"There's an underlying hope that prosecutors, when exposed to what
you believe is strong evidence will say ‘ah ha, this is really
compelling.’”
But, according to Soury, this has not been the reaction in the cases he has worked on.
In the case of
Velazquez, whose murder conviction was recently reviewed and
upheld by the Manhattan DA’s CIU, Soury noted that “[the process] was adversarial.”
“[Defense attorney] Bob Gottlieb turned over witnesses to whom the
real killer confessed,” Soury continued. “They exposed themselves, these
witnesses came to New York, and they were treated horribly, like
defendants. These were witnesses who had a lot to lose. They knew the
murderer.” Gottlieb has since filed a
440.10 motion, or a motion to vacate the conviction based on newly discovered evidence.)
Gottlieb, who was appointed in 2008 to the New York State Bar
Association’s Task Force on Wrongful Convictions, concedes that the
concept of a DA remedying wrongful convictions is “noble”—but he adds
there is an “inherent conflict in having an integrity unit in a DA’s
office and staffed by prosecutors who are involved in other
investigations, in cases, other than examining prior convictions.”
In the Velazquez case, where there was no DNA or physical evidence
that could be re-examined, Gottlieb was, he believed, at a significant
disadvantage with the CIU. (At least until now: according to Gottlieb,
recent scientific advances suggest that some evidence in the case can be
tested, something he is now pursuing),
Eyewitness ID
This “conviction was based solely, one hundred percent, on faulty
eyewitness (identification) and it has been established by scientific
studies that eyewitness ID is inherently suspect, and that conviction is
as inherently invalid as the convictions that were based on faulty
evaluations of DNA,” Gottlieb told
The Crime Report.
However, he continued, “the reality is that it is…impossible to
prevail in those cases where the claim is that a person is wrongly
convicted based on eyewitness ID, a faulty line-up, (or) perjured
testimony, because there is an institutional bias that exists under the
present structure, and cannot be overcome, to protect and defend prior
convictions.”
To be sure, these units have been instrumental in righting some very serious wrongs.
A recent report found that close to 40 percent of exonerations in
2013 were initiated either by law enforcement or included police and
prosecutors’ cooperation. To date, Watkins’ CIU in Dallas has been
involved in 33 exonerations. The current Santa Clara, CIU has
investigated and exonerated five people, including a man who was serving
a life sentence; and another who had served 8 years in prison for a
rape he did not commit.
The Manhattan DA’s office has reviewed approximately 140 cases since
its formation in 2010, reinvestigated at least 12 of the cases and
consented to vacate convictions in three of those cases.
And last year, an investigation by Hynes’ CRU in Brooklyn led to the
release of a man named David Ranta, who had served 23 years for a murder
that he most likely did not commit.
(Hynes’ office stopped short of declaring Ranta factually innocent,
but said instead that the evidence against him had eroded significantly, blaming a retired, “rogue” detective for much of that “erosion.”)
But even the most committed district attorney still has to contend
with the fact that the cases that come to his or her office’s CIU or CRU
may well involve people who are still employed by the office, or police
officers and even judges with whom the office has important
relationships it needs to maintain.
For example, in the Giuca case, Thompson will be in the difficult
position of investigating allegations against a highly regarded
prosecutor (albeit one who was hired by the previous administration)
currently working in his office. And he will also have the unenviable
task of re-interviewing another current employee who is a factual
witness in the case and who, records show, was uncooperative with the
initial investigation.
Independent Review
Indeed, in a
Huffington Post article
he wrote during the campaign, Thompson himself noted that “Internal
conviction integrity units are best used to correct mistakes such as
eyewitness misidentifications and false confessions. But…wrongful
conviction cases premised on serious allegations of police and
prosecutorial misconduct require independent review.”
As Kuby notes, “Prosecutors have friends, colleagues” and “even if
they have the utmost integrity,” this cannot help but play a role in
these reviews.
“If a DA is really serious and committed to having a CIU,” said
Gottlieb. “then (the CIU) must be staffed with an inspector general-type
prosecutor who has no connection to the past procedures and trials that
are the subject of the conviction review.
“That person must be totally separate and apart, with his or her own
staff and offices. Members of the CIU (also) cannot include the chief
assistant DA or any of the executive staff of the DA’s office. It must
truly be an independent entity.
“If you're not prepared to do that, then you really can’t claim that you have an independent unit to evaluate past convictions.”
Kuby believes there is an even bigger problem with a DA evaluating
wrongful convictions emanating from his office: overturning too many
convictions, even if the evidence requires it, can also raise serious
issues not only for prosecutors, but for the system as a whole.
“Outside of incapacitating highly dangerous people, the criminal
justice system seeks to create a sense of legitimacy in the minds of the
public and to provide deterrence to wrongdoers,” Kuby said.
“It doesn’t much matter if people are guilty or innocent, if people
think they are guilty. But whenever you expose a wrongdoing, you
undermine the legitimacy of the system.”
That’s why people like Soury believe that the task of reviewing
wrongful convictions should not be left to prosecutors, but given to an
independent and independently funded entity set up for the purpose.
“We have had far too many wrongful convictions in New York City,”
says Soury. “(We) need a [truly independent] official body that
can present solutions as well as have investigative responsibilities and
subpoena power to review cases where credible evidence exists of a
wrongful conviction and prosecutor and /or police complicity.”
But Soury goes a step further, suggesting that the best way to
address the problem of wrongful convictions is to “hold public officials
who engage in these activities legally responsible: criminally and
civilly”— something that almost never happens, because prosecutors and
police have close to global immunity for actions undertaken in their law
enforcement roles.
As Soury notes, “Prosecutors are virtually omnipotent and protected from any consequences of their actions.”
http://www.thecrimereport.org/news/inside-criminal-justice/2014-03-wrongful-convictions-can-prosecutors-reform-themselv
