It was one thing for Marvin Schechter, chair of the Criminal Justice Section of the New York State Bar Association, to raise the “outrageous” claim that prosecutors were being taught to hide Brady material. This provokes a flurry of letters to the editor at the New York Law Journal from local district attorneys about how deeply they loved the Constitution and how they would never, ever, do anything wrong. Never.
But if Marvin’s column didn’t make their heads explode before, they’re exploding now. First in line is Nassau County District Attorney Kathleen Rice, who not only played the caboose in this soap opera by offering her letter to the editor long after everyone else had already spewed, but offering this unfortunate argument:
In a recent opinion piece authored by New York State Bar Criminal Justice Section Chair Marvin Schechter, the author recklessly opined that hiding Brady material is a “learned and taught” practice by district attorneys. This outrageous statement does not comport with the facts, nor do his comments honestly and accurately describe the professionalism and integrity of New York prosecutors.
The evidence Schechter uses to support his sweeping indictment of an entire profession is a single case involving one prosecutor. To reach his offensive and inaccurate conclusion, Schechter not only chose to rely on an insufficient body of evidence, but also to ignore ample evidence that district attorneys in New York take nothing more seriously than their responsibility to promote and protect the integrity of our criminal justice system.
One case? Just one? The hope of a short public memory might have salvaged this point, but for some very bad timing, as the New York Times (which Rice may not get since she exists in Newsday territory) published yet another outrageous story of deliberate, flagrant Brady concealment in the case of Petros Bedi
During Mr. Bedi’s trial, a defense lawyer blasted away at the credibility of this witness and tried to prove he had incentive to lie. Didn’t the Queens district attorney foot the hotel bill to put up you and your girlfriend for eight months? Weren’t you paid handsomely for your testimony?
No, the witness insisted. I paid my own bill. Nobody paid me anything.
This was not true, and the prosecutors who sat in that courtroom and vouched for the honesty and truthfulness of this witness knew it.
Newly disclosed witness protection records show that the district attorney’s office in fact paid the witness, Seraphim Koumpouras, $16,640 for hotel bills. Prosecutors also gave him about $3,000 in cash; he received the last payment six days before he testified.
Maybe two cases, Kath? Bedi’s lawyer, Joel Rudin, had no qualms about wailing on the Queens District Attorney’s office for this outrageous abuse, which responded that “it intends to contest the case vigorously.” Because, well, maybe the prosecutor forgot he handed the witness $100 on his way out the door? It can happen, right?
But Rudin didn’t shy away from the fight. Instead, he offered the inside view of how, in the midst of this Brady war, where Brown too sent his own “harrumph” letter proclaiming his office’s “remaining at all times committed to doing justice.” Except, maybe, this time:
In the Petros Bedi case, I brought to the attention of the leaders of the Queens District Attorney’s Office what appears to be an open-and-shut case of intentional Brady violations. Before filing our motion to vacate the conviction, I provided the office with a draft, and was invited to a meeting at their office. Ironically, in light of the office’s present statement, it was agreed that the substance of our conversation would be kept confidential. In the face of irrefutable, documentary evidence that the prosecutor in Bedi’s case had withheld 16 written statements, signed by their key cooperating witness, acknowledging his personal receipt of nearly $3,000 in cash payments that his testimony had falsely denied, they declined to consider consenting to vacate the conviction so that a new trial could be held.
And so the Queens DA’s office was outraged by one of its own flagrantly violating Brady? Well, not quite:
Instead, they suggested I bring in two new defense witnesses so that they could interview them and decide whether they were convinced of Bedi’s innocence. I declined, observing that if they were not willing to vacate the conviction based upon the demonstrated Rosario and Brady violations, as well as the evidence that their office had knowingly relied upon false testimony, they certainly would never do so based upon the statements of two defense witnesses.
Because the undeniable 16 payments that were concealed wasn’t a strong enough showing, which brings us back to Marvin’s point.
Easy as it may be to accuse Marvin of “shocking and calumnious” allegations, it’s not going to be nearly as easy to explain away the facial Brady violation here. So who wants to be the first District Attorney to write a letter proclaiming “outrage” this time?The public should know that, at the same time the leaders of the Queens D.A.’s office deny the allegation that they “teach” Brady violations, they defend the conduct of assistant district attorneys in presenting and failing to correct false testimony and withholding Brady material that would reveal the truth.
This is “teaching” by example. Under federal civil rights principles, it is “ratification,” and establishes unlawful policy. How many Brady violations inspired by such “teaching” go undetected?
Don’t expect one from “Get Down” Brown, as he’s no doubt going to be very busy investigating, but my personal choice would be Kathleen Rice. After all, it really looks awful to always be the caboose when it comes to hopping on the integrity train.
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Every time a bell rings, a prosecutor violates Brady.
These prosecutors seem to imply that withholding exculpatory evidence can only be taught in a class. They teach by example. The first time a rookie ADA sees her supervisor call an inconsistent statement “work product” she has her degree in hiding the ball. Also, not that he needs it from me, but I would like to give my full-throated support to Marvin who took an hour of his vacation the other day to explain to me all the things likely to go wrong in restructuring the Houston Crime Lab.
That’s exactly right (as noted in my original post), as if Marvin, by using the word “teaching” means that they hold a class in how to hide the Brady. It’s taught through spreading policies that misstate the law. It’s taught by defending prosecutors who violate Brady. It’s taught by supervisors or senior colleagues who come up with every possible excuse not to disclose. And it’s taught all the time.
My sense is that they’re trying to fool us yet again, as if the only way it’s taught is by some nefarious instructor passing out “how to hide the Brady” booklets. Either they’re not getting it, or they think we’re all blithering idiots.
When a bell rings, someone can hear it. When Brady is concealed, rarely does anyone know.
Up here Canada way, Alberta to be precise, if a prosecutor was found to have knowingly violated disclosure, it is quite likely that they would be reported to the Bar Association for ethics violations by both defense counsel and, if sufficiently egregious, the presiding judge. If this was more than an isolated occurrence, the Bar Association both has the power and the ability to suspend or disbar the prosecutor.
I appreciate that District Attorneys are elected, unlike in Canada where Crown Prosecutors are career civil servants (other than the Minister and Deputy Minister of Justice, who are cabinet members) are appointed, but does the New York Bar Association have the ability to strongly sanction prosecutors who violate Brady or DA’s who oversee multiple Brady violations? Neglecting to disclose material that is obviously covered by Brady (or Rosario or relevant Supreme Court disclosure cases) strikes me as grossly unethical, such that suspension and disbarment have to be considered appropriate sanctions for attorneys who are, quite literally, violating the law and subverting justice and the Constitution.
If not, given the Connick v. Thompson decision, what is stopping the next Harry Connick Sr. of wreaking havoc in New York, Louisiana or anywhere in the United States? Unless dishonest, unethical prosecutors lose their licenses or spend some quality time cooling their heels behind bars, a culture of unaccountability will continue to thrive and prosper, as DA’s elected on the promise of more convictions have no incentive whatsoever to follow the law, notwithstanding their pledge to uphold the principles of justice.
All jurisdictions in the United States have the power to discipline prosecutors, even those elected. They rarely do.
The NYSBA isn’t regulatory agency, like the Law Society of Upper Canada. Bar regulation in New York is under the auspices of the Appellate Divisions, which have disciplinary committees that putatively handle attorney discipline. For private lawyers (meaning those who don’t work for the government), any complaint, no matter how facially valid or ridiculous, requires a thorough response, which is often awkward as people who have no connection to a lawyer or a case can file a grievance and the attorney is compelled to respond.
For reasons unknown, the same isn’t true when a greivance is filed against a prosecutor. When Dick Barbuto and Marvin Schechter formed the NYSACDL’s Prosecution and Judicial Complaint Committee, as a means of filtering complaints for attorneys who were afraid of saying anything mean that could come back and bite them later, they expected it to be taken seriously by the disciplinary committee. It wasn’t, and their first complaint (against then-Westchester County District Attorney Jeanine Pirro who did a song and dance routine on TV to smear a defendant, prejudice the jury pool and claim guilt based on accusation) was summarily tossed.
And just so you know, they’re all isolated instances. Every single one. Every single time. They have to be isolated instances, because otherwise things wouldn’t be wonderful. And as every DA will tell you, things are very, very wonderful.
I guess we roll a little differently up here in the Great White North, where all practicing attorneys are members of the relevant Bar Associations. That the P&JCC seems to be either toothless or spineless is a terrifying prospect, given the unwillingness of courts to act as an effective check or balance on the Government’s prosecutors.
We suffer from an epidemic of spinelessness. The PJCC was a well-intended effort that was offensively blown off. The problem isn’t so much the PJCC as the NYSACDL’s lack of will and focus to take a stand and refuse to be ignored. They fear being hated and consequently aren’t respected.
Sir, I recently rec. an email from someone in NY asking if I knew of any good CDLs that were “never” employed by any DA’s office in any compacity.
Now. I know why. But, if one hires a CDL with ties to the DAs office, one would assume that he / she would know thier tricks and exactly how to circumvent. Thanks.
*Note: The three ring circus; Blunderberg, Brownstain & Riceawrongy have to know deep down that just because they have a strangle-hold on the local media, it’s eventually going to get out via the SJ Network. *Throwing a pile of krap on a pile of shit smells exactly the same & one would again assume that it’s taught in the “New Rules” classes. But, take it from me, assumming is one of the leading causes of wrongful convictions & un-needed surgeries.
May I add a must read to bring this full circle? – http://blog.simplejustice.us/2012/08/15/meet-the-new-rule-same-as-the-old-rule.aspx
Ironically, one of the most frequently used marketing tools by CDLs is their former work as a prosecutor. I’ve discussed the problems with this, the mistaken assumptions and myths, a number of times in the past. People assume that a former prosecutor must have an “in” that somehow gets them a favor. It’s nonsense, but marketing lawyers play on ignorance.
It doesn’t mean these lawyers are bad people or lawyers, or that experience as a prosecutor doesn’t add to their knowlege of the system, but to the extent this misleads potential clients to believe their former status enables them to do something they can’t, it’s deceptive and wrong.
The NYSACDL does not fear being hated. We do not have a lack of will or focus. It is so easy to criticize. Where is your letter to the Law Journal, Scott? The Appellate divisions may dismiss our complaints but that does not mean we don’t make them. We have publicly supported Marvin Schechter and have spoken out for discovery reform.
I failed to understand your attack given the reality that our Association provides a signifcant voice on this and other issues.
Richard D. Willstatter
If you have to tell people you provide a “significant voice,” Richard, you don’t. You wrote a good letter on this issue, and it was noted in the earlier post on Marvin’s column. But it’s not about one letter, one issue or one president. To call questions about the association’s tepid existence an attack reflects the association’s lack of will and focus. It is hated. It is dismissed. And still, the association wrings its hands and worries that it won’t be loved.
Take a lesson from Marvin. Take a chance. Stand up for what the association exists to do and don’t worry whether the DAs or judges will come to the dinner and say nice things about the association. And all this has to transcend one president but become the heart of the association. We both know it isn’t, despite the excellent letter you wrote.
I am a victim of a brady violation. Currently I am in Federal court,as well as the appellate 2nd term and a 440 is being servred very shortly. I am in this situation because of a gender discrimatory front line female prosecutor in queens county. Any attorney who argues that this is not taught encouraged and that prosecutors only care about winning,has thier head in the sand. Gentlemen, the system is completely broken.