I am fascinated by the American public’s vigorous demand for police accountability, but their disinterest in prosecutor accountability.
They demand body cams on police, and demand them being fired, even prosecuted for abuse for beating up an individual, for instance, but prosecutors who railroad innocent people into prison for years, knowingly, recklessly, get nothing more than an admonition from the judge – as in the case described below- when prosecutors sent three innocent people to prison for 24 years.
What Americans little realize is that the law has invested prosecutors with more power over another’s freedom than any other government official. Yet there are no checks and balances for them.
A reform movement is needed to bring accountability to prosecutors. They need the equivalent of body cams. Their work has to be scrutinized intensely.
A New York Times story, “They Spent 24 Years Behind Bars. Then the Case Fell Apart.” demonstrates this.
Here is some of the Times’ story in bold with my comments in regular typeface.
A judge threw out the murder convictions of three New York men on Friday and admonished prosecutors for withholding evidence that cast serious doubt on their guilt.
Three men spent 24 years in prison because prosecutors withheld information about their innocence. The punishment for the prosecutors – who stole 72 years of freedom from three citizens – was an admonishment from a judge. In other words, a tongue lashing.
On the weekend before Christmas in 1996, a shop owner was opening his check-cashing store in East Elmhurst, Queens, alongside an off-duty police officer who was working security, when the two were ambushed by a group of men, shot and killed.
The case touched off a ferocious manhunt, and within days, three men were arrested. They were convicted in separate trials and sentenced to between 50 years and life in prison for murder.
But more than two decades later, the case has collapsed.
On Friday, a state judge in Queens threw out the convictions of all three men and admonished prosecutors for withholding evidence that would have cast serious doubt on their guilt.
Prosecutors never turned over police reports showing that investigators had linked the killings to other men, the members of a local robbery ring. And five witness accounts — never seen by defense lawyers — contradicted the men’s confessions, which were wrong on key details of the crime, and which lawyers say were coerced.
Based on their withholding evidence, why weren’t these prosecutors arrested? What’s wrong with a system when prosecutors cheat to send innocent men to prison and there is no recourse other than a tongue lashing from the judge?
We talk about deterrence for crimes as an important factor in sentencing. Is a tongue lashing from a judge a deterrent to prevent prosecutors from withholding evidence of innocence that lands men in prison for decades?
If a corrupt prosecutor, like any other species of criminal, thinks he won’t get caught, he factors that in with the penalty of getting caught. But when both his chances of getting caught are small [since there are no monitoring of prosecutors] and the penalty is miniscule [a tongue lashing from a judge], why not cheat?
The three men — Gary Johnson, 46, George Bell, 44, and Rohan Bolt, 59 — stepped outside the walls of Green Haven Correctional Facility… each with tears streaming down their faces as they embraced their families. “We finally made it,” Mr. Bolt shouted, as he clutched two of his young grandchildren’s hands for the first time.
“The district attorney’s office deliberately withheld from the defense credible information of third-party guilt,” Justice Joseph A. Zayas told the men, who appeared in court virtually. He said that the prosecution had “completely abdicated its truth-seeking role in these cases,” and suggested that may have been because prosecutors knew the evidence would have hurt the chances of convicting the men.
This is the problem with prosecutors in America. They do not have a truth-seeking role any more. They are promoted by conviction stats, not justice. There is no incentive for justice and no penalty for cheating.
A prosecutor who admits he is wrong and exonerates an innocent man wrongly targeted will not be rewarded. In fact, he is penalized. If he spent a lot of time investigating and prosecuting an innocent target – to exonerate the innocent means the prosecutor will have lower conviction stats.
This is human nature. A prosecutor has about 2000 working hours per year. If he spends 400 on a serious case and he finds out the target is innocent, if the prosecutor exonerates, he or she just lost 20 percent of their year without getting a conviction.
On top of that, there is the embarrassment of having to admit you are wrong. But probably more importantly, there are the lower conviction stats. Losing 20 percent of your work year and not getting a conviction could be disastrous to one’s career.
Of course, if a prosecutor has a lot of cases in the hopper, which he secures plea deals, he can keep his conviction stats high, but it is still a competitive market. An exoneration, an acquittal, is a hardship for a prosecutor. A conviction – whether by plea deal or by trial – is a solid gain. It is not, it cannot be about justice for prosecutors. It must be about convictions.
Consider a lawyer working in private practice. He or she also will have about 2000 work hours per year. Suppose they spend 400 on a case where they did not bill. This would be an extremely detrimental misuse of time for the lawyer’s bottom line.
A prosecutor does not bill by the hour. His or her performance is evaluated by convictions.
Power corrupts and because prosecutors have near-absolute power in the criminal justice system, they can be absolutely corrupt, and many of them are, and usually, they can get away with it.
If someone ill-treated a dog by confining them to a cage for let’s say four years, the whole nation would be outraged. We would be calling for the men or women who did it to the dog to go to prison. But when it is only a human being – when three innocent men go to prison for 24 years each because a species of unchecked government official decides they want a conviction instead of justice, we are not outraged. There is no punishment for prosecutors.
The Queens County district attorney, Melinda R. Katz, supported overturning the convictions because of the new evidence. But she stopped short of saying the men were innocent. Her office plans to review the case for 90 days before deciding whether to retry them.
“I cannot stand behind these convictions,” Ms. Katz said in a statement on Friday. “However, there is at this time insufficient evidence of actual innocence and therefore we are taking this opportunity to re-evaluate and examine the evidence.”
This is the standard face-saver when prosecutors get caught putting innocent people in prison. They won’t say they are innocent. They say they might retry them. They add, “there is insufficient evidence of actual innocence.”
What is not said is that it is sometimes impossible to prove innocence. That is why the burden of proof is on the prosecution.
A review unit Ms. Katz created to investigate possible wrongful convictions found no intentional misconduct by the district attorney’s office. Justice Zayas disagreed on Friday, calling the office’s position “perplexing” and saying prosecutors had hidden evidence and misrepresented facts.
Of course prosecutors cover up for each other. There is “no evidence of intentional misconduct” just like there is not evidence of the convicted men’s innocence, even though there is evidence that prosecutors withheld critical evidence of innocence.
Lawyers had also said it took Ms. Katz’s office months to agree to release the men even after the evidence was reviewed. In their court filing, they argued that Ms. Katz’s position denied the men of “the complete justice they deserve,” with much of the initial evidence against them having fallen apart…
“This should have been done a year ago. What were they doing that caused them to drag their feet?” said Mitchell Dinnerstein, one of Mr. Bell’s trial lawyers. He added that he believed the office had taken its position because it was “trying to protect” the prosecutors involved, one of whom still works there….
At the time of their arrests, Mr. Bell and Mr. Johnson were 19 and 22 years old, while Mr. Bolt, 35, was a restaurant owner and married father of four….
Witnesses to another shooting months later — which involved one of the gang’s leaders — described several striking similarities to the December crime. And investigators on the two cases also met to discuss them.
But prosecutors repeatedly claimed no records linking the crimes existed and spurned efforts to connect them at trial. Lawyers argue the evidence was suppressed….
The case represents the first test of Ms. Katz’s handling of claims of prosecutorial misconduct. Some defense lawyers and former prosecutors say misbehavior went overlooked under the borough’s district attorney for 27 years, Richard A. Brown, who died in 2019….
I wonder what it is like to know you put innocent people in prison at a time when conviction stats don’t mean a thing.
After taking office at the start of last year, Ms. Katz established a unit to review potential wrongful convictions, something her predecessor had long declined to do.
It may not be much different to have a unit to review wrongful prosecutions and not having a unit at all — since it is the case of the fox watching the henhouse; self-policing is rarely effective.
The unit’s investigations led two men in separate murder cases to be released from prison last year after witnesses recanted or new DNA testing cast doubt on one man’s guilt.
Murder is a crime that prosecutors often get wrong, as DNA exonerations amply prove. There is pressure to convict. There are convenient targets, usually poor people who cannot afford top lawyers or investigators; there is the glamor of winning a conviction and solving a serious crime. If there is evidence that casts doubt on a defendant, what’s a prosecutor to do? Reveal it and possibly permit the jury to acquit on reasonable doubt? Or conceal it, and get a conviction?
Without monitoring prosecutors, there will be no end to the cheating.
How many innocent people are in prison today for murder and other crimes? How many would have been acquitted or exonerated if prosecutors were required to turn over all evidence?
… Chris Policano, a spokesman for the [DA’S] office, said … “In this case, our conviction integrity unit concluded there was no intentional prosecutorial misconduct.”….
What would you expect a self-policing unit to declare? What they are saying then is that withholding information that they possessed that pointed to innocence or reasonable doubt and would have likely prevented a conviction is not intentional prosecutorial misconduct. What is intentional prosecutorial misconduct then? Is it only fabricating evidence and suborning perjury? Isn’t prosecutorial misconduct also safeguarding a conviction by withholding evidence of innocence from the defense?
The issues in the case are a stark example of the behavior that some lawyers say had been long overlooked in the Queens district attorney’s office.
And every prosecutor’s office.
Judges ruled that prosecutors had misbehaved in at least 117 cases between 1985 and 2017 a lawyer who reviewed the office’s convictions found; the prosecutors were rarely disciplined.
That is the problem in a nutshell: Prosecutors are rarely disciplined. And what is discipline? They don’t go to prison. They don’t lose any pay. They are not demoted. They put innocent people in prison – by willfully ignoring evidence of innocence and hide it from the defense – and they are not disciplined. They are given a tongue lashing by the judge.
There are no checks and balances for prosecutors.
One of several prosecutors in all three cases, Brad A. Leventhal, was among them. Court records show a three-judge appeals panel overturned a conviction in one of Mr. Leventhal’s attempted murder cases, ordering a new trial in 2006 based on “repeated instances of prosecutorial misconduct” during the cross-examination of a witness and closing arguments.
Mr. Leventhal, now the bureau chief of the office’s Homicide Trial Bureau, deferred comment to Jennifer Naiburg, a chief executive assistant district attorney in the office. Ms. Naiburg said that Mr. Leventhal had handled roughly 85 cases as a defense attorney and prosecutor, and except for in 2006, he had not been sanctioned for misconduct and none of his convictions had been reversed.
The office does not plan to review past convictions of individual prosecutors, as the review unit determined no intentional misconduct occurred.
Of course, here is a true rascal, even a criminal – prosecutor Brad A Leventhal. He puts innocent people in prison and the self-policing “integrity” unit says “no intentional misconduct.” Of course, it was intentional. He had exculpatory information that he hid from the defense because he wanted a conviction. Instead of being punished, he was promoted to head of homicide prosecutions. Why? Because he always gets his man — whether that man is innocent or guilty. Brad has an excellent conviction rate. That’s what counts.
Mr. Johnson and Mr. Bell confessed to the murders several days after they took place, on Christmas. Mr. Johnson, however, could not even name the color of the getaway car used.
Mr. Bell also offered several descriptions that appeared to be fed to him by officials — and detectives employed tactics while questioning him that are known to lead to false confessions, lawyers argue. Records show he also told a lawyer at the time that he was repeatedly punched and knocked around by a detective.
One of the chief ways police get false confessions is to beat up a defendant. Another way is to lie to him and say his companions have or are about to confess and named him. If he does not confess right now, he will get the worst sentence, possibly the death penalty. But if he confesses, they will go easy on him.
Questions were also raised about the accounts of key witnesses. One man, who has since died, could not have witnessed the shooting from where he said he had been standing, experts later found. The account of a jailhouse informant who testified against Mr. Bell and Mr. Johnson was also thrown into serious doubt.
Jailhouse informants are used by prosecutors to provide snitch evidence of someone’s guilt in return for a lighter sentence, a clear recipe for perjury. Just as prosecutors are incentivized to cheat to increase conviction stats, jailhouse informants are incentivized to win favor with prosecutors. Oftentimes, the prosecutor has to suborn perjury to accomplish the goal.
“When this unfortunate journey began, I was only 19 years old. I was just a kid with no clear understanding of the law, or even my own rights,” Mr. Bell said at the hearing on Friday. “Thank you for giving me a second chance at life.”
With 24 years in prison, an innocent man gets a second chance – and the prosecutors got their punishment — an admonition from the judge – and that is justice.
There is a scene in the fictional TV series Perry Mason where defense attorney Mason after winning a case consoles prosecutor Hamilton Burger by noting it must be hard to expend such effort only to have charges dismissed.
Burger makes the most improbable statement, something only to be seen in fiction:
“No, my job as a prosecutor is to do justice, and justice is served when a guilty man is convicted and an innocent man is not.”
Jackson, who became a Supreme Court Justice, and who died in 1954, said, “The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”