Minor oversight in forgetting to mention the dismissal of charges against Sam Kellner. If ever there was a man who knew what it was like to be stuck on the Charles Hynes Railroad, it's that guy.
This is an editorial from 4/2/2014:
The new Brooklyn district attorney, Ken Thompson, ended Sam Kellner’s three-year legal ordeal last month, dismissing his criminal case after a six-week investigation concluded that the witnesses against him “lacked credibility to such a degree” that the case could not be prosecuted. Kellner is the whistleblower from a chasidic community who pressed charges against Baruch Lebovits for alleged sexual abuse against Kellner’s young son. That brave act turned into a nightmare when Kellner himself was later charged with perjury and extortion.
According to Kellner’s attorneys, in a conference in chambers before the dismissal of those charges, the prosecutor handling the case told the judge that Kellner had been indicted on what was, in effect, manufactured and perjured testimony.
This was a conclusion The Jewish Week, through the meticulous reporting of special correspondent Hella Winston, reached over a year ago, based on an analysis of district attorney and court records, as well as her own extensive, independent investigation. All indications were that the case against Kellner was cooked up by powerful and well-connected supporters of Lebovits — a convicted chasidic child molester — to get him out of jail. That these supporters found such a willing ally in former district attorney Charles Hynes, under whose nose they had also successfully intimidated and then turned an alleged victim of Lebovits against Kellner, is perhaps the most disturbing aspect of this sordid affair.
During his run for office, Thompson made the issue of prosecutorial conduct a centerpiece of his campaign. He has begun putting together a special unit in his office to review possible wrongful convictions, and the New York Law Journal recently reported that he is seeking a half-million dollars to staff it, telling members of the City Council, “We need to give people confidence in the convictions that come out of the Brooklyn office.”
Fortunately for Kellner, whose indictment wreaked havoc on his and his family’s life, not to mention the small community of Orthodox anti-sex abuse advocates and victims, his case was dismissed before an unjust plea deal or verdict could be reached —a fate that wrongfully convicted Brooklyn men like Jabbar Collins, David Ranta and William Lopez were not so lucky to be spared. However, if Thompson is serious about restoring public confidence in the Brooklyn criminal justice system, we believe it is incumbent on him to conduct a full investigation into just how and why Sam Kellner came to be indicted in the first place. In addition, the probe must hold to account those within Kellner’s own community, the district attorney’s office and the wider legal community who were responsible for this perversion of the criminal justice system.
(http://www.thejewishweek.com/editorial-opinion/editorial/restoring-confidence-brooklyn-das-office)
Thursday, April 10, 2014
Sunday, March 30, 2014
"Wrongful Convictions: Can Prosecutors Reform Themselves?" by Hella Winston
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
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
New Brooklyn DA drops appeal of wrongful conviction in 1989 murder
EXCLUSIVE: New Brooklyn DA drops appeal of wrongful conviction in 1989 murder
William Lopez, 55, was freed in 2013 after serving 22 years for a discredited murder conviction. Former DA Charles Hynes fought for years to keep Lopez locked up, but Kenneth Thompson’s office will not go forward with the appeal.
BY Oren Yaniv
Friday, March 28, 2014
Brooklyn’s new district attorney dropped an appeal that challenged last year’s release of a man who served 22 years in prison for a discredited murder conviction.William Lopez, 55, was sprung in January 2013 by a federal judge who found that his already questionable case was “reduced to rubble” after an eyewitness recanted.
The judge, Nicholas Garaufis, took his ruling a step further last March when he ordered Brooklyn prosecutors not to retry Lopez and dismiss all charges.
Former DA Charles Hynes, who fought for years to keep the defendant locked up, appealed that decision, but his successor, Kenneth Thompson, has now reversed course.
After reevaluation, Thompson’s office “has concluded that there is a sufficient possibility that Lopez is not guilty” and that moving forward with the appeal is “contrary to the interest of justice,” according to a court document filed Wednesday, a week before oral arguments were set to be heard.
The appeals court still needs to sign off on the dismissal and neither the DA’s office nor Lopez’s lawyer would comment before it does.
Lopez, who always maintained his innocence, was convicted of killing Elvirn Surria with a shotgun in a Brighton Beach crackhouse in August 1989, but the case was riddled with problems.
Thompson’s decision effectively means that he no longer faces the threat of retrial.
The DA, who took office at the start of the year, inherited a trove of alleged wrongful convictions and has said that resolving them is a priority.
He had already cleared two men who spent 21 years behind bars for a triple homicide they didn’t commit.
Jeffrey Deskovic, whose Foundation for Justice helped exonerate Lopez and assisted with his reintegration, praised the DA’s move.
“We applaud the decision by Thompson's office to abandon the appeal,” he said. “It is a clear signal that he intends to honor his campaign promise to correct and prevent wrongful convictions."
http://www.nydailynews.com/new-york/nyc-crime/exclusive-da-drops-appeal-wrongful-murder-conviction-article-1.1737519
KINGS COUNTY DISTRICT ATTORNEY KENNETH P. THOMPSON ANNOUNCES PUBLIC INTEGRITY HOTLINE
This is pretty cool. From a press release from the KCDA:
Brooklyn, NY
–
Kings County District Attorney Kenneth P. Thompson today announced
the creation of a Public Integrity Hotline that citizens can call to report public corruption.
The Public Integrity Bureau proactively investigates a broad range of corruption at all levels of government.
“My office is committed to rooting out public corruption in Brooklyn, and we take every
complaint about corruption seriously. For that reason, I created a dedicated Public Integrity
Hotline to encourage people to come forward with information about government wrongdoing,”
said District Attorney Thompson.
The District Attorney’s Public Integrity Bureau will review complaints received on the new
hotline involving: bribery and other malfeasance by elected officials and public servants; fraud in
elections and political campaigns; corruption of the government contracting process, including
bid-rigging and other anti-competitive behavior; and fraud, waste and abuse in government
programs and funds.
Anyone with information about government corruption is encouraged to call the Public Integrity
Hotline. People also have the option of filling out a Public Integrity Complaint Form on the
Brooklyn D A’s website, www.brooklynda.org, and clicking on the link to the Public Integrity
Bureau webpage.
Wednesday, February 26, 2014
Cleaning up Joe Hynes’ mess
NEW YORK DAILY NEWS
Tuesday, February 25, 2014, 9:16 PM
By Harry SiegelForget about it, John. This is Brooklyn.
If any one case captures the stinking, spreading mess six-term Brooklyn District Attorney Joe Hynes left in the office of the man who defeated him, Ken Thompson , it’s the “grid kid” slaying.
That was the tabloid wood in 2003, when Fairfield University student Mark Fisher made his first foray into the city. The 19-year-old football star met three male classmates for drinks in Manhattan. There he met another student he was flirting with, and, drunk, followed her to a late-night house party in Ditmas Park, Brooklyn.
Hours later, Fisher’s body was wrapped in a blanket on a quiet side street, his face bruised from a beating presumably delivered before he was shot five times.
The partying teens quickly lawyered up, leaving investigators frustrated and unable to press charges even as one suspect, known knucklehead Antonio Russo, cut off his signature braids and left for California hours later. Facing mounting criticism for failing to make a case and with an eye on a tough reelection bid, Hynes sent in his “elite team,” led by rackets chief Michael Vecchione and star trial attorney Anna-Sigga Nicolazzi .
Suddenly — a Vecchione trademark — witnesses began stepping up to testify against both Russo and his friend, John Giuca, who hosted the house party.
In a trial with two separate juries, Nicolazzi, who came in with a perfect trial record, took the much tougher, entirely circumstantial case against Giuca, whom no witnesses or physical evidence placed at the apparent scene of the crime.
Using a series of overlapping, sometimes conflicting accounts — from Giuca’s girlfriend, his longtime friend and Ditmas Park neighbor Al Cleary (who’d himself been seen as a person of interest at least through the grand jury, where he waived his immunity to testify) and finally a junkie named John Avitto, who claimed to have heard a confession — she laid out a theory in which Giuca either felt disrespected or, to toughen up his purported crew, had instructed Russo “to go show that guy what’s up.”
The jury convicted both men of murder. Giuca got 25 to life, and will first go up for parole in 2029.
But the trial left more loose ends than clear answers. One juror was recorded afterward admitting he knew Giuca, lied about it in jury selection and pressed others to find him guilty. A witness repeatedly described as uncooperative with the initial investigation was later hired straight out of law school as a Brooklyn ADA. Vecchione’s reputation is in tatters.
And three witnesses, including Avitto, have recanted their trial testimony, risking perjury charges to do so (the other two now swear they were pressed into delivering false accounts by the DA), according to a letter from Giuca’s current lawyer, Mark Bederow, asking Thompson to revisit the case.
In a second letter from Bederow the DA received Monday, ex-ADA and law professor Bennett Gershman, who wrote the book “Prosecutorial Misconduct,” took aim at Nicolazzi, claiming that “in order to win a murder conviction in a high-profile case [she] recklessly disregarded a prosecutor’s overriding responsibility . . . that only reliable and trustworthy evidence be presented,” and instead used “misleading, deceptive and inflammatory tactics.”
Returning to Avitto, Nicolazzi’s surprise final witness, who, the defense was given no opportunity to prepare for: Not only was his testimony “almost certainly false,” Gershman writes, but “from the record it appears that ADA Nicolazzi knew it was false.” This is the witness whom she personally vouched for with the jury at least three times: “you know you could trust him.”
Avitto testified that while at Rikers, he overheard Giuca confess in a conversation with his father. But Giuca’s father couldn’t speak after strokes years earlier.
Worse, Avitto testified he’d volunteered to expose Giuca and received no consideration from the DA. In fact, he’d had seven serious violations of his rehab program (he admitted to only one in his testimony), any one of which should have triggered a substantial prison sentence. In one instance, writes Gershman, Nicolazzi privately vouched for Avitto with a judge to keep him from jail.
So Avitto lied in his Giuca testimony, and Nicolazzi apparently knew, both when he claimed just one violation, and again when he said he had no arrangement with the DA.
“The case you’re calling about is a complicated one,” said Thompson spokeswoman Sheila Stainback. “But it was carefully reviewed, tried and upheld by the appellate division. We have Mr. Bederow’s letters and they are being reviewed. Anna-Sigga Nicolazzi is a respected and outstanding prosecutor who has an exemplary trial record.”
It is complicated, and guilt and innocence may be lost behind the haze of the trial. But even giving Nicolazzi — who has had a sterling reputation in a sometimes troubled office, and is now leading the probe of 50 convictions tied to former Detective Louis Scarcella, like Vecchione a provider of suspiciously miraculous witnesses that led to bad convictions — every benefit of the doubt, Gershman’s claims warrant a substantial response.
Thompson has his work cut out cleaning up after Hynes. He could start with Giuca.
http://www.nydailynews.com/opinion/cleaning-joe-hynes-mess-article-1.1701831
Monday, February 24, 2014
Conviction Panel Advisers Named in Brooklyn- Wall Street Journal
District Attorney Taps Three to Reinvestigate Questionable Convictions
Mother of John Giuca hopes District Attorney Ken Thompson will review murder conviction
From the Brooklyn Daily:
http://www.brooklyndaily.com/stories/2014/8/all-noth-hynes-movie-2014-02-21-bk_2014_8.html
By Will Bredderman
A Brooklyn mother is hoping the new district attorney will give a second chance to her son, who was convicted of murder in 2005 — and whose story will soon be a film starring actor Chris Noth.
Former top borough prosecutor Charles Hynes — whom Noth will play in upcoming independent film, according to the Daily News — and his star assistant district attorney Michael Vecchione found Flatbush youth John Giuca guilty of the 2003 murder of Fairfield University football star Mark Fisher. But Giuca’s mom is hoping that Ken Thompson — who defeated Hynes last year — will give the case a second look.
“We new he had no shot with Charles Hynes in office,” said Doreen Giuliano. “I’m hoping that Ken Thompson reviews the case, and is thorough in his investigation, and that ultimately John is exonerated.”
In the early hours of Oct. 12, 2003 police found Fisher’s body shot five times, wrapped in a blanket, and dumped in front of an Argyle Road residence after a night of partying with friends in Manhattan. That party had wound up at Giuca’s nearby home, and the blanket covering Fisher’s corpse belonged to Giuliano.
The prosecution successfully argued that Giuca — then 20 years old — had instructed his friend Antonio Russo to kill Fisher and had provided the never-recovered murder weapon to do the deed, as retribution against Fisher for sitting on his table earlier that night, and as a way to boost the reputation of their alleged gang “The Ghetto Mafia.”
But Giuliano believes her son never got a fair trial — due to both a biased jury and a biased prosecution. According to Giuliano, an overheard comment led her to doubt the credibility of one of the jurors. And, in a move straight from a Hollywood screenplay, Giuliano decided to disguise herself and use a false name to court the juror and catch him admitting to misconduct.
Giuliano recorded the juror, Bensonhurst resident Jason Allo, admitting he had lied during jury selection when he had claimed he did not know Giuca and Russo. The tapes became public through an article in the magazine Vanity Fair, but an Appeals Court judge refused to consider the recordings as evidence because Allo had not made a sworn statement that he had lied.
Giuliano and Giuca’s attorney, Mark Bederow, also submitted a brief to Thompson alleging that one of the prosecution’s key witnesses had perjured himself, and that Hynes’s team withheld evidence that would compromise the witness’s account.
The lawyer’s brief points out that during the investigation into the murder, the witness’s attorney submitted a polygraph test in which the witness stated he had no knowledge of how Fisher died — and the lie detector had determined he was telling the truth. But the witness later testified that Giuca had told him that he had ordered Fisher’s killing and supplied the gun. The brief alleges the prosecution failed to share the results of the polygraph test with the jury.
“He either (1) procured a false polygraph examination report, (2) truthfully passed the polygraph examination and thus repeatedly perjured himself over the course of three sworn statements, or (3) was such a talented liar that he ‘fooled’ the polygraph expert and convinced him that he was truthful despite the fact that he was lying,” Bederow wrote to Thompson.
Giuliano believes her case is strong enough to free her son.
“He was only a convicted murderer because he had a flawed trial,” Giuliano argued.
Thompson’s office declined to comment.
http://www.brooklyndaily.com/stories/2014/8/all-noth-hynes-movie-2014-02-21-bk_2014_8.html
By Will Bredderman
A Brooklyn mother is hoping the new district attorney will give a second chance to her son, who was convicted of murder in 2005 — and whose story will soon be a film starring actor Chris Noth.
Former top borough prosecutor Charles Hynes — whom Noth will play in upcoming independent film, according to the Daily News — and his star assistant district attorney Michael Vecchione found Flatbush youth John Giuca guilty of the 2003 murder of Fairfield University football star Mark Fisher. But Giuca’s mom is hoping that Ken Thompson — who defeated Hynes last year — will give the case a second look.
In the early hours of Oct. 12, 2003 police found Fisher’s body shot five times, wrapped in a blanket, and dumped in front of an Argyle Road residence after a night of partying with friends in Manhattan. That party had wound up at Giuca’s nearby home, and the blanket covering Fisher’s corpse belonged to Giuliano.
The prosecution successfully argued that Giuca — then 20 years old — had instructed his friend Antonio Russo to kill Fisher and had provided the never-recovered murder weapon to do the deed, as retribution against Fisher for sitting on his table earlier that night, and as a way to boost the reputation of their alleged gang “The Ghetto Mafia.”
But Giuliano believes her son never got a fair trial — due to both a biased jury and a biased prosecution. According to Giuliano, an overheard comment led her to doubt the credibility of one of the jurors. And, in a move straight from a Hollywood screenplay, Giuliano decided to disguise herself and use a false name to court the juror and catch him admitting to misconduct.
Giuliano and Giuca’s attorney, Mark Bederow, also submitted a brief to Thompson alleging that one of the prosecution’s key witnesses had perjured himself, and that Hynes’s team withheld evidence that would compromise the witness’s account.
The lawyer’s brief points out that during the investigation into the murder, the witness’s attorney submitted a polygraph test in which the witness stated he had no knowledge of how Fisher died — and the lie detector had determined he was telling the truth. But the witness later testified that Giuca had told him that he had ordered Fisher’s killing and supplied the gun. The brief alleges the prosecution failed to share the results of the polygraph test with the jury.
“He either (1) procured a false polygraph examination report, (2) truthfully passed the polygraph examination and thus repeatedly perjured himself over the course of three sworn statements, or (3) was such a talented liar that he ‘fooled’ the polygraph expert and convinced him that he was truthful despite the fact that he was lying,” Bederow wrote to Thompson.
“He was only a convicted murderer because he had a flawed trial,” Giuliano argued.
Thompson’s office declined to comment.
Subscribe to:
Posts (Atom)