A Very, Very Principled Prosecutor

That was how Brooklyn District Attorney Joe Hynes described Michael Vecchione, now chief of the rackets bureau, repeating the word “very” twice for emphasis.  Eastern District Judge Dora Irizarry repeated herself for emphasis as well: “I think it is shameful.”  From Law.com :

In vacating a murder conviction and barring prosecutors from retrying the case, a federal judge in New York has lashed out at the Brooklyn district attorney’s Office for failing to take responsibility for its prosecutors’ alleged misconduct.

At a contentious, 90-minute habeas corpus hearing Tuesday morning, Eastern District Judge Dora L. Irizarry noted that petitioner Jabbar Collins, a renowned jailhouse attorney, had uncovered numerous documents while serving his 34-years-to-life sentence suggesting that prosecutors had withheld evidence, coerced witnesses and lied to the court and the jury.

The rule of Brady, disclosure of evidence that tends to be favorable to the defense or tends to impeach a prosecution witness, always observed in the breach.  Even when conceded, yet not acknowledged.

Judge Irizarry called the office’s lack of contrition “sad,” “shameful” and “beyond disappointing.”

“I didn’t hear any kind of acknowledgment that things were done that should not have been done,” Irizarry said.

Noting the “well-documented” evidence that prosecutors withheld evidence and misled the jury, Irizarry asked Assistant District Attorney Kevin Richardson “You stand by that? I think that is shameful.”

It’s by no means extraordinary that it happened, with Brady being in the eye of the beholder, and in the possession of the prosecution.  Courts leave it to the prosecutor to decide whether it exists, and if so, when to disclose it.  In those rarest of instances where a prosecutor discloses Brady, it’s invariably at the last possible millisecond, and always too late to make the best use of it.  I’ve written about the failure called Brady often, calling it the worst joke ever played by Justice William O. Douglas.

Fortunately for jailhouse lawyer Collins, he had real lawyer, Joel Rudin, by his side since 2005.

However, in a motion that the two sides negotiated Monday evening, Rudin, Collins’ attorney, told the court that the district attorney’s office was agreeing to Collins’ unconditional release.

The motion cited the office’s failure to inform the defense prior to trial that a witness had temporarily recanted his allegations — the Brady violation to which prosecutors had already conceded.

Richardson told the court that the prosecution nonetheless stood by its original conclusions regarding Collins’ guilt. He added, “It is the opinion of the office, based on the weaknesses that now exist with the witnesses and the unavailability of portions of the physical evidence, that to retry the defendant is no longer a viable option and that we can no longer secure against him a conviction beyond a reasonable doubt.”

The evidentiary hearing would have required Vecchione to take the witness stand.  That, of course, had nothing to do with the decision to concede, even though he would have been subject to Rudin’s withering cross, and I’ve no doubt that Rudin, a great lawyer, would have tap danced all over Vecchione. 

And, again unsurprisingly, the prosecution wants to have its cake even as it’s caught red-handed.  They stand by the defendant’s guilt while claiming they couldn’t secure a conviction.  Have you ever heard them announce that while they recognize the defendant’s innocence, they are prosecuting anyway because they can secure a conviction? 

One might expect that there will be an investigation, maybe even a commission, to study how this “shameful” failure could possibly happen. That’s the typical way to deflect attention and responsibility from such problems, since no one will remember it happened after tomorrow.  But Joe Hynes isn’t your typical sort of District Attorney.

District Attorney Charles J. Hynes answered questions about the Collins case following a press conference Tuesday afternoon at his office announcing the donation of 500 pairs of shoes to the Family Justice Center.

Hynes said that his office would not conduct an internal investigation of Vecchione or any other prosecutors involved in the case, as the only evidence of any prosecutorial wrongdoing was the single Brady violation, which the prosecutors discovered and reported on their own. Hynes said his office ended its opposition to the proceeding because the case had become unwinnable, and that the timing had nothing to do with Vecchione’s imminent appearance on the witness stand.

While the story is a bit unclear at this point, it does not appear that the 500 pairs of shoes constitutes restitution, but rather spring cleaning at the Hynes’ residence.  And as for the price to be paid by the Brady-denying prosecutor, who “ridiculed” the defense at trial for its claims that witnesses were intimidated, now known to be precisely the case?

“Anyone who knows Mike Vecchione, who has ever seen him in action, knows that he is a very, very principled lawyer,” Hynes said.

Kinda makes you wonder what it takes to be an unprincipled lawyer.

H/T Mike at Crime & Federalism

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