NY Times: Prosecutors Sometimes Behave Badly. Now They May Be Held to Account

Michael F. Vecchione, a former Brooklyn assistant district attorney, resigned after his longtime boss lost a bid for re-election.CreditCreditPool photo by Jesse Ward

Michael F. Vecchione, a former Brooklyn assistant district attorney, resigned after his longtime boss lost a bid for re-election.CreditCreditPool photo by Jesse Ward

By Jan Ransom and Ashley Southall
April 5, 2019

Jabbar Collins spent 16 years in prison before it was discovered that detectives had pressured the main witness against him to lie about Mr. Collins’s role in the 1994 murder of a rabbi.

The Brooklyn district attorney’s office knew the detectives had pressured the witness but never informed the defense, court papers said. A federal judge later called the prosecutor’s conduct “shameful” and a “tragedy.”

The conviction was vacated and the city paid Mr. Collins a $10 million settlement in 2014. But the prosecutor was never called to account for how he handled the case.

Last week, Gov. Andrew M. Cuomo approved legislation to create a special commission to investigate local prosecutors for such allegations of misconduct. The commission would have the authority to sanction prosecutors and, in extreme cases, remove them from office.

The governor has said the panel is the first of its kind in the country. The state’s prosecutors have already vowed to challenge it in court as unconstitutional, setting the stage for a fierce legal battle that could land in the state’s highest court.

“The new bill is just another political stunt, with no hope of surviving judicial scrutiny,” said David Soares, and the Albany County district attorney and president of the state’s district attorney’s association. The commission “impermissibly intrudes on core law enforcement functions,” Mr. Soares, a Democrat, added.

But supporters of the legislation said cases like Mr. Collins’s show why the state needs an independent entity to investigate prosecutors. In that instance, the assistant district attorney, Michael F. Vecchione, was never publicly disciplined for withholding information.

The supporters point out that district attorneys, who are immune from civil suits for their official actions, are seldom penalized for acting unethically.

In recent years, people seeking to overhaul the state’s criminal justice system have increasingly focused on prosecutors, who wield enormous power through their discretion in charging decisions and plea bargaining with little or no oversight.

Nine of 10 cases are settled with a guilty plea and so usually evidence is never tested at trial. The steps an unscrupulous prosecutor might take to get a conviction, like hiding evidence favorable to the defense or coercing a witness to give certain testimony, seldom becomes public, legal scholars said.

“The cases where misconduct comes to light is often by serendipity,” said Barbara O’Brien, a law professor at Michigan State University and the editor of the National Registry of Exonerations. “We just have no idea how many times they don’t get caught.”

While district attorneys contend that such misconduct by prosecutors is rare, defense lawyers have pointed to the role prosecutors have played in the growing number of wrongful convictions that have been uncovered because of advances in DNA evidence. Also, a greater understanding about the prevalence of false confessions has emerged, defense lawyers said.

The prosecutors, who are elected officials in the executive branch, argue that the 11-member commission violates the separation of powers rule because members are appointed by the judiciary and the Legislature.

If it survives the challenge, the State Commission on Prosecutorial Conduct will have the power to investigate the state’s 62 district attorneys to determine whether their conduct is unethical, unprofessional or unlawful. The commission would be able to conduct hearings, compel witness testimony, issue subpoenas and request any records or materials deemed relevant to its investigation.

It was Mr. Cuomo’s second time signing the bill into law. The first time, in August, Mr. Cuomo had urged legislators to amend the legislation to address his concerns about its constitutionality, particularly the separation of power rule. But he said the new bill was returned with few changes.

“Despite my desire for a bill strong suited for the legal challenges that it will surely confront,” Mr. Cuomo, a Democrat, said in his approval memo, “my commitment to the creation of this commission and the promise that it brings for a more transparent, and just criminal justice system remains unshaken.”

The governor’s office and the Legislature will each appoint four members, while the chief judge will appoint three. No members have yet been named to the commission.

Lawyers for the prosecutors asked a judge this week to block the formation of the panel, arguing the law illegally expands the role of the chief judge and blurs the lines between powers of the executive, the judiciary and the Legislature.

Jacob Gardener, a lawyer representing the district attorneys, said the prosecutors did not oppose oversight or criticism, but believed the law was “marred by constitutional defects.”

Public defenders applauded the creation of the panel as a critical step toward reducing the number of wrongful convictions and for holding prosecutors accountable for unethical practices. About 300 people have been exonerated in New York, dating back to the 1980s, and official misconduct was listed as a contributing factor in many of the cases, according to data in the National Registry of Exonerations.

“We have a responsibility to our client and prosecutors have a responsibility to justice,” said Tina M. Luongo, the chief criminal defender for the Legal Aid Society. “Someone needs to be held responsible when it goes wrong.”

In Queens, for instance, defense lawyers said prosecutors there never faced meaningful sanctions for the wrongful conviction of Shih-Wei Su, who was convicted in 1992 of attempted murder for a shooting at a pool hall. He served 13 years in prison before a federal appeals court judge ordered a new trial, after discovering that a prosecutor, Linda Rosero, “knowingly elicited false testimony from a crucial witness” to get the conviction.

Ms. Rosero maintained that she was unaware the Queens district attorney’s office had made a deal with the key witness, promising him he could go free on an unrelated case if he testified. Ms. Rosero said she had been “naïve, inexperienced and, possibly, stupid.” A grievance committee later issued Ms. Rosero an admonition, which amounts to a warning, but took no other action.

In a letter to the grievance committee, Mr. Su said, “Is 13 years worth of my life worth only an admonition?”

The new law prevents the commission from looking into a prosecutor’s conduct in investigations in which no charges have been filed, or from examining cases still being tried. Still, the state’s prosecutors have said the panel will create a chilling effect and could make the state’s lawyers reluctant to pursue difficult cases out of concern that their work would be subject to public scrutiny.

“One reason prosecutors have immunity in civil lawsuits is because they’re supposed to seek justice and not worry, ‘Hey, what is this going to mean for me?’” said Daniel R. Alonso, a former chief assistant district attorney in Manhattan.

Some current and former prosecutors have also argued the commission is unnecessary. Grievance committees in New York’s four appellate divisions already review complaints about lawyers in the state, including prosecutors.

One recent and egregious example was the case of Mary E. Rain, the district attorney of St. Lawrence County, a rural territory on the Canadian border in northern New York. In 2018, Ms. Rain was disbarred from practicing law for two years, after complaints emerged that her office had used an inmate to improperly obtain jailhouse confessions and for using questionable tactics in a high-profile murder case.

Still, lawmakers who support the new commission say that Ms. Rain’s case is an exception; in practice, grievance committees rarely punish prosecutors for unethical behavior. Alphonso B. David, counsel to Mr. Cuomo, said that, in effect, “there are currently no mechanisms in New York to challenge prosecutorial misconduct.”

In Mr. Collins’s case, the prosecutor, Mr. Vecchione, denied wrongdoing and continued to work until 2013. He resigned after his longtime boss, the Brooklyn district attorney, Charles J. Hynes, lost a bid for re-election.

“If prosecutors, either through negligence or recklessness, causes someone to suffer the death penalty or life in prison — should there be no consequence at all?” Mr. Collins’s lawyer, Joel B. Rudin, said.