More interesting stuff from Judicial Reports excellent reversal roundup.  This time, it’s about a 1993 Queens murder prosecution of Eric Jenkins, secured with the concealment of a cooperation deal with a critical prosecution witness.  This is one of those systemic fiascos that makes one wonder what kind of joke the criminal justice system has become, more for the fact that almost 15 years later, it still hasn’t reached its conclusion.

But aside from the obvious castigation of the prosecutors for their deceit and misconduct in their zeal to convict, the report raises two nagging questions.  Check out this statement by current appellate counsel:

“I’m obviously terribly disappointed, but it’s not over. We are going to appeal,” said Powell. “Unfortunately,” she added, the misconduct by Landa and Lendino in sweeping their deal with the witness under the rug was not preserved for appellate review, so that issue has been put to rest.”

Huh?  How is this possible?  Before the defense lawyers knew there was a concealed cooperation deal with a witness, obviously they could not raise the issue and thus preserve it.  But after it became known, how could they not?  Have they never heard of a post trial motion?  Does their copy of the Criminal Procedure Law lack the page where section 440.10 is printed? 

There may well be plenty of cause to go after the nefarious prosecutors, but what of the ineffective assistance of counsel?  It’s not enough to point the finger at the prosecution for being evil.  The next step is to look to the defense and ask, “so what did you do about it?” 

And the other question?  What the hell is going on at the Appellate Division, Second Department?  Why should it be necessary to go to the United States District Court on a writ to get a little justice around there?  Albany, are you listening?