Who Polices Prosecutors Who Abuse Their Authority? Usually Nobody

The murder case against Tony Bennett seemed pretty straightforward. Shortly before midnight on May 7, 1994, police found a 26-year-old man in the foyer of an apartment building near Flushing, Queens. Jake Powell was near death, blood pouring from a gunshot wound, but he managed to speak the name of the man who had shot him: “Tony Bennett.”

Bennett, a two-time felon, was eventually captured, convicted of murder, and sentenced to 25 years to life in prison.

But Bennett never served anywhere near that sentence. He has, in fact, been free since 2008 because Claude Stuart, the former Queens assistant district attorney who handled his case, violated a basic rule of law by withholding critical evidence from Bennett’s attorney. A state appeals court overturned Bennett’s conviction and released him after 13 years in prison.

That early release has freed Bennett to describe his role in a crime he had insisted for two decades he did not commit.

“He was wrapped up in a shower curtain in the corner of the bathroom, shivering and shaking,” Bennett recalled of Powell, who Bennett said had terrorized his family for years. “He was saying all this, ‘Please, please, don’t hurt me, don’t shoot, I’m sorry, I’m sorry.’ And I said, ‘Yeah, I’m sorry, too.’ And I did what I had to do.”

Stuart’s wrongdoing in the Bennett case wasn’t his only act of misconduct. He manipulated evidence in another case, and that conviction wound up being reversed by the courts, too. But his bosses took no action after that misconduct became known. A state disciplinary committee reprimanded Stuart, but that fact remained secret from the public. Indeed, Stuart’s superiors did not act until another conviction was overturned, and Stuart was found to have lied to a trial judge about the whereabouts of a key defense witness.

That, at last, cost Stuart his job.

Stuart’s career, across many years and with repeated abuses, helps demonstrate a broader truth: New York’s system of attorney oversight is ill-equipped or unwilling to identify, punish and deter prosecutors who abuse their authority.

A ProPublica analysis of more than a decade’s worth of state and federal court rulings found more than two dozen instances in which judges explicitly concluded that city prosecutors had committed harmful misconduct. In each instance, these abuses were sufficient to prompt courts to throw out convictions.

Yet the same appellate courts did not routinely refer prosecutors for investigation by the state disciplinary committees charged with policing lawyers. Disciplinary committees, an arm of the appellate courts, almost never took serious action against prosecutors. None of the prosecutors who oversaw cases reversed based on misconduct were disbarred, suspended, or censured except for Stuart. (Stuart declined repeated requests for an interview for this story.)

Nor were any but Stuart punished by their superiors in the city’s district attorney offices. In fact, personnel records obtained by ProPublica show, several received promotions and raises soon after courts cited them for abuses.

The damage from prosecutorial misconduct can be devastating, not only allowing guilty people like Bennett to go free, but also putting innocents behind bars. In 10 cases identified by ProPublica, defendants convicted at least in part because of a prosecutor’s abuse were ultimately exonerated, often after years in prison.

Shih-Wei Su was incarcerated for 12 years on attempted murder charges before a federal appeals court cleared him, finding that a prosecutor had “knowingly elicited false testimony” in winning a conviction. The city eventually paid Su $3.5 million. The prosecutor received nothing more than a private reprimand.

Jabbar Collins served 15 years in prison for a murder he didn’t commit before his conviction was thrown out in 2010; Michael Vecchione, a senior Brooklyn prosecutor, had withheld critical evidence during trial. Collins has filed a $150 million lawsuit against the city. No action has been taken against Vecchione.

Last July, two men filed lawsuits for a combined $240 million against the city for wrongful convictions that a state appeals court found were won in part because Manhattan prosecutors had withheld evidence. The men served 36 years in prison, collectively. The prosecutor, who long ago left the district attorney’s office, has not been publicly disciplined.

“It’s an insidious system,” said Marvin Schechter, a defense attorney and chairman of the criminal justice section of the New York State Bar Association. “Prosecutors engage in misconduct because they know they can get away with it.” (Schechter said he was expressing his own opinion, not that of his bar section.)

New York City’s district attorneys say concerns about misconduct — heightened by several recent high-profile cases — are largely misplaced.

Allegations of such practices are substantiated in only a fraction of the roughly 285,000 cases they handle each year, they assert. Even in those, they add, what courts deem misconduct often amounts to inadvertent error.

Top prosecutors also say their offices have taken significant steps to limit and expose misconduct, in part by establishing internal units that examine claims of abuse.

“The egregious cases don’t mirror the larger universe, but are rather somewhat isolated,” said John O’Mara, head of the Brooklyn District Attorney’s Conviction Integrity Unit.

There have been a variety of reports over the years, both national and local, that documented a substantial array of serious misconduct involving front-line and senior prosecutors alike.

Across those years, there has been at least one constant: the inability or unwillingness to meaningfully punish the offending prosecutors.

ProPublica, in the latest analysis, examined the years 2001 to 2011, chiefly scrutinizing instances in which state or federal courts identified misconduct serious enough to throw out a conviction. The analysis also incorporated civil cases during those years, virtually all of which resulted in financial awards being given to the victims of such misconduct.

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