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TAKING PROSECUTORIAL MISCONDUCT 'UNSERIOUSLY': BRADY VIOLATIONS AND THE MYTH OF PROFESSIONAL ACCOUNTABILITY

 By Joel B. Rudin

 About the Author

Joel B. Rudin is a criminal defense and plaintiff's civil rights attorney who has handled several of the leading cases in New York involving individual and municipal civil liability for Brady and related due process violations by prosecutors during criminal trials. He is vice chair of NACDL's Amicus Committee for the Second Circuit.

Joel B. Rudin

Law Offices of Joel B. Rudin

200 West 57th Street

Suite 900

New York, NY 10019

212-752-7600

Fax 212-980-2968

E-MAIL jbrudin@aol.com

This article is adapted from a lengthier article that appeared in the Fordham Law Review. See Joel B. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies that Prove that Assumption Wrong, 80 Fordham L. Rev. 537 (2011).

(editors note: [The System of White Supremacy Requires a Substantial Number of Non-Whites to be Incarcerated] [theCode] -Neely Fuller.)

[*30]

Prosecutors have complete or absolute immunity from suit for their actions, even when taken in bad faith, in the course of carrying out their function of litigating criminal cases. In justifying this rule, which it adopted in Imbler v. Pachtman n1 and expanded upon in subsequent cases, n2 the Supreme Court has assumed that the threat of professional discipline would deter prosecutors from violating the obligations of their office. "[A] prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers," the Court reasoned in Imbler, n3 and has consistently reiterated. n4

While Imbler largely precludes criminal defendants from suing individual prosecutors who violate their constitutional rights, discovery in lawsuits against municipalities that employ errant prosecutors has exposed the fallacy of the Court's assumption in Imbler. Although such lawsuits are themselves difficult due to stringent proof requirements under 42 U.S.C. § 1983, n5 this author has succeeded in using such claims not only to recover significant monetary awards for clients, but also to unearth definitive evidence that, at least in New York City, the assumption that prosecutors are or will be disciplined for violating criminal defendants' fair trial rights is fallacious.

Scholars, working from public sources, have reached this conclusion before, n6 but they have not had access to prosecutors' personnel records or to the sworn testimony of district attorneys about their overall policies and practices as well as their failure to act in individual cases. The discovery provisions of the Federal Rules of Civil Procedure, employed in civil rights lawsuits under 42 U.S.C. § 1983, provides this access.

Indeed, discovery in the lawsuits pursued by this author reveals that, in presumably progressive New York City, district attorneys not only tolerate, but usually defend and ratify, the misconduct of their line prosecutors. Sworn depositions have exposed that such District Attorney's Offices ("Offices"), despite employing many hundreds of prosecutors, investigators, and paralegals, have no published rules or standards of behavior and no [*31] formal disciplinary bodies or procedures. n7 No records of any admonishments or more serious discipline are kept. Meanwhile, independent judicial disciplinary bodies also virtually never punish prosecutors for violating fair trial-related ethics rules. n8 The following case studies demonstrate the indifference of elected district attorneys in three of New York's five counties -- the Bronx, Queens, and Brooklyn -- to Brady and related constitutional violations, no matter how egregious the misconduct.

 

A. The Bronx District Attorney's Office

The first case in New York that produced meaningful discovery concerning the disciplinary process and policies of a District Attorney's Office was Ramos v. City of New York. n9 Filed in 1995 and settled for $ 5 million in 2003, the lawsuit elicited discovery concerning prosecutors involved in 72 reported cases of Brady violations and other misconduct. The author then pursued additional lawsuits involving later Brady violations and other misconduct that yielded discovery about personnel policies through 2007, and revealed that the policy of tolerating prosecutorial misconduct remains unchanged.

1. The Ramos Case

a. The Criminal Prosecution

Alberto Ramos was a 21-year-old college student and part-time childcare worker when he was arrested on Sept. 6, 1984, and charged with raping a five-year-old girl at a Bronx daycare center. His arrest was one in a series of highly-publicized daycare center sexual abuse cases brought by former District Attorney Mario Merola, a veteran, politically-ambitious prosecutor. n10 In May 1985, Ramos was convicted based upon the child's testimony as well as the following "corroboration": the child had a vaginal irritation or rash and was able to describe sexual intercourse, n11 and she appeared upset when she was picked up after school by her grandmother. n12 In her summation, the prosecutor forcefully argued that the child could not "make up" her claim of having sexual intercourse and that her vaginal "bruises" corroborated her testimony. n13

Seven years into Ramos' hellish incarceration, during which he was physically, sexually, and verbally abused as a "child rapist," fate intervened. The alleged victim's mother had brought a civil lawsuit against the New York City-funded daycare center (and Ramos). The city's private insurance carrier, fearing a massive judgment, settled, but a defense investigator, believing Ramos to be innocent, obtained permission to share his investigative discoveries with Ramos and his mother. n14 They, in turn, hired the author's law firm, which moved for a new trial. n15

After an evidentiary hearing, the court found that the trial prosecutor, Diana Farrell, had withheld records showing the following:

 

 

(1) The child initially had repeatedly denied that anything had happened other than he "taped my mouth," before finally accusing Ramos after persistent questioning; n16

 

(2) Prior to the alleged rape, the child had described watching sexually explicit programs on television, would use dolls to simulate sex during show and tell in school, was described by her teachers as "sexually wiser" than the other children and street smart, and would expose herself; n17

 

(3) The child used to masturbate on a regular basis in school, n18 thereby explaining her vaginal irritation; and

 

(4) As revealed by a sign-in, sign-out book, the child's grandmother had not picked her up at all on the day in question; in fact, she had been picked up by her aunt. n19

In vacating Ramos' conviction, the court, while declining to find that the prosecutor's misconduct had been willful, termed it "cavalier and haphazard," and continued: "The greatest crime in a civilized society is an unjust conviction. It is truly a scandal that reflects unfavorably on all participants in the criminal justice system." n20 The court released Ramos on his own recognizance, pending retrial.

Rather than acknowledge the prosecutor's mistakes, Bronx District Attorney Robert T. Johnson, denying that any Brady violations had occurred, appealed. n21 "By placing the dolls in close proximity she could have been simulating wrestling or some other activity," the district attorney's brief argued. n22 What is more, the dolls were not "anatomically correct." n23 The district attorney speculated that the child had not really seen sexual acts on television because "[i]t is common knowledge that such movies do not contain hardcore pornographic footage. ..." n24 The new information about masturbation was not material because the defense already had a document suggesting the child masturbated (although on the witness stand her teacher denied such knowledge). Finally, the district attorney argued that the sign-in, sign-out log need not have been disclosed because it did not "touch upon defendant's guilt or innocence." n25 The Appellate Division affirmed the lower court's ruling in an even more scathing opinion. n26 The District Attorney's Office then agreed that it lacked any "reasonable cause" to continue the prosecution, and dismissed all charges. n27

b. The Attorney Grievance Process

Shortly after the trial court issued its decision vacating Ramos' conviction, the prosecutor, Diana Farrell, received notice from the Departmental Disciplinary Committee of the New York State Supreme Court, Appellate Division, First Judicial Department, of a secret sua sponte disciplinary inquiry. n28 The Departmental Disciplinary Committee is the New York State authority charged with the investigation and discipline of attorneys accused of professional misconduct. n29 It may initiate an investigation of an attorney upon a complaint or "on its own initiative." n30 Upon such investigation, it has the authority to impose sanctions on an attorney ranging from the most serious punishment of disbarment to a private letter of "admonition." n31 Under the New York State Judiciary Law, the conduct of such an investigation -- including its very existence -- is confidential unless the Disciplinary Committee finds that the attorney should be publicly reprimanded. n32

After learning of the Disciplinary Committee's investigation, ADA Farrell and the counsel to the district attorney, Anthony Girese, prepared a letter defending her conduct and asking that any inquiry be deferred until the appeal was decided. n33 After the district attorney's appeal was denied, the prosecutor gave confidential sworn testimony, denying any misconduct, which she refused during the lawsuit to consent to unseal. n34 The Committee dismissed the disciplinary action. n35 At no time did the [*32] Committee afford Ramos or his counsel notice of the prosecutor's contentions or any opportunity to provide any materials or arguments concerning whether she had committed ethics violations.

c. The Civil Lawsuit

While the Ramos post-judgment hearing was underway, the Second Circuit Court of Appeals decided Walker v. City of New York. n36 Walker contained two principal legal holdings of relevance to Ramos.

First, a district attorney's failure to adequately supervise or train members of his staff to comply with their obligations to disclose Brady material, and not to present false or perjured testimony, could give rise to Monell liability under § 1983. n37 The plaintiff would have to show that the district attorney had been deliberately indifferent to an obvious need for greater training, supervision, or discipline, and that this policy of indifference was a substantial cause of the violation of the plaintiff's federal constitutional rights. n38

Second, although a New York municipality is not subject to suit under § 1983 for a district attorney's "prosecutorial" decisions that he makes on behalf of the State, it may be sued for a district attorney's managerial or administrative functions that he performs as a policymaker on behalf of the city of New York, including constitutionally faulty training or supervision of his staff. n39

Based upon Walker, and armed with the Appellate Division's ringing denunciation of the district attorney's conduct at Ramos' criminal trial, Ramos elected to bring a § 1983 lawsuit in the State Supreme Court in Bronx County. Ramos claimed that the trial prosecutor's misconduct had resulted from the district attorney's deliberate indifference to his staff's history of obtaining unlawful convictions by violating Brady and relying on false or misleading evidence and argument, evidenced by his failure to properly train, supervise, and discipline prosecutors to avoid or to deter such violations, and by his ratification of such misconduct when it occurred. n40

To substantiate this claim, Ramos sought disclosure of the personnel and disciplinary records of the prosecutors who had been involved in 72 reported cases in which courts had found violations of Brady obligations (18 cases), or other violations of the duty not to present false, misleading, or inflammatory evidence or summation argument (54 cases). The city resisted providing the records and moved to dismiss the law-suit. However, the Appellate Division, noting the "catastrophic" result when prosecutors wrongfully convict a defendant by withholding materially favorable information, n41 upheld Ramos' civil rights claim, while granting all of the document discovery Ramos sought. n42

The records revealed that from 1975 through 1996, during the administration of three district attorneys, there was just one incidence of any prosecutor being disciplined. This prosecutor was one of 14 who had been involved in more than one of the trials in which misconduct had been found. n43 A second prosecutor had conducted five of the trials, while a third had conducted four, n44 yet neither of these latter two prosecutors, according to the records, had ever been disciplined. n45 Indeed, the District Attorney's Office conceded that payroll and other records "do not indicate the existence of any disciplinary measures taken against any of th[e] ADAs. ..." n46

The prosecutor who received "discipline" did so in connection with a robbery conviction he obtained after trial in February 1977. n47 In reversing this conviction, the Appellate Division denounced the prosecutor for "overzealous," "improper conduct ... throughout the trial, despite repeated admonitions by the court," n48 including disparaging the "so-called presumption of innocence" and "reasonable doubt" and continually "disregard[ing] and overriding ... the court's rulings and instructions." n49 In reversing the conviction, the court cited the Code of Professional Responsibility and implied that the prosecutor had violated it. n50 The prosecutor's salary record showed that when the trial occurred, he was earning $ 21,500. n51 Notwithstanding the Office's notice of his misconduct presented by the defendant's appeal, he received salary increases over the next year of $ 4,500 -- or 21 percent. n52 After the court handed down its decision, the prosecutor suffered a deduction of four weeks of pay, or approximately $ 2,150. n53 However, he then received a bonus of $ 250 on June 30, 1978, and a $ 2,500 salary increase on July 1, 1978, more than making up for his lost income. n54

Between 1978 and 1981, the same prosecutor was slammed by three more appellate opinions in two cases (although neither conviction was reversed), n55 but continued to receive raises. Dissenting judges in two of the decisions suggested that such "egregious" conduct be referred for professional [*34] discipline, n56 noting that the same trial assistant had been denounced in prior decisions for "outrageous and abusive conduct" n57 and "improper and tasteless" behavior. n58 On Nov. 24, 1981, Associate Judge Bernard Meyer, of the New York Court of Appeals, reminded the district attorney of his "continuing obligation with respect to his trial assistants ... to instruct them clearly and firmly against using such tactics. ..." n59 Yet, during the four-year period beginning July 1, 1978, the prosecutor received "merit" and other raises totaling $ 13,500, until he was earning $ 42,000 by July 1, 1982. n60

On Nov. 22, 1982, District Attorney Merola wrote to a member of the Appellate Division's Departmental Disciplinary Committee, asking it to "reconsider[]" its "initial finding" in connection with a disciplinary inquiry concerning the prosecutor. n61 Merola assured the Committee that he already had authorized "disciplinary measures" that took into account all of the prosecutor's misconduct and that, in light of his subsequent performance, these "early trials" in his career were an "aberration." n62 It appears the Committee did reconsider, as there is no evidence that the prosecutor was sanctioned.

Significantly, after the court decisions in 1980 and 1981 that so vehemently condemned his performances, the prosecutor's performance evaluations noted that, as a result of the disciplinary investigation, he had suffered a decline in "productivity, and criticized him for lateness, but otherwise praised his performance." n63 The following year, his supervisor recommended him for promotion to "senior trial status" and gushed: "Tremendous ability to plead def[endan]ts with the weakest proof." n64 He continued as a Bronx assistant district attorney until his retirement in 1997. n65

Another prosecutor was responsible for five of the misconduct decisions. An appellate decision in October 1982 found that he had engaged in "persistent misconduct [during summation which] deprived the defendant of his right to a fair trial," resulting in the reversal of a manslaughter conviction. n66 Three years later, the same court reversed another manslaughter conviction obtained by the same prosecutor six months after the prior decision. n67 The court was irate that the prosecutor had "blatantly violated defendant's rights" n68 even after being chastised in the prior opinion, and termed the prosecutor's conduct "willful and deliberate." n69 The following year, reversing a third manslaughter conviction obtained by the same prosecutor, the same court commented:

 

 

[W]hen the misconduct is so pervasive, so egregious and results in violations of fundamental due process rights, and the prosecutor's disregard of the court's rulings and warnings is as deliberate and reprehensible as that of this prosecutor, who has twice before provoked reversals by this court, a reversal is the only responsible remedy we can invoke as guardians of the rights of the People. n70

The prosecutor left the office's employ in 1984, after six years. There was nothing in his personnel file to indicate he did not leave voluntarily or was disciplined in any way, and during his employment he continually received salary increases and bonuses. n71

A third prosecutor was cited for misconduct in four decisions, one involving an apparent Brady violation. n72 Within five weeks of the first reversal, on June 3, 1986, he received "merit" increases and bonuses totaling $ 11,500, or more than 15 percent of his previous salary. n73 Following the other court decisions, including a reversal in 1991, he received yearly "merit" increases ranging from $ 1,000 to $ 4,000. n74 His evaluations were not provided.

Ramos' trial prosecutor also received no sanction for her misbehavior. During her deposition, she testified that "everything [she] did in connection with the Ramos prosecution was consistent with [her] training." n75 She testified that she believed she only was required to disclose evidence that was "blatantly Brady" because it "tended to exonerate the defendant" or was "crucial" or, as to impeachment evidence, only if she determined after investigation that it was "truthful." n76 She testified that she received the complete support of District Attorney Johnson and his chief assistants, including their agreement to appeal the decision. n77

Numerous other court decisions about which discovery was provided, many handed down after Mr. Johnson became district attorney in 1989, found deliberate or flagrant misbehavior. In one case, the appellate court upheld the defendant's claim that "he was deprived of due process by the prosecutor's knowing use of perjured testimony," and faulted the prosecutor's failure to comport with the district attorney's "responsibility and duty to correct what he knows to be false and elicit the truth." n78 Another prosecutor, in People v. Lantigua, n79 was found to have knowingly withheld crucial Brady material that proved the falsity of her summation to the jury. The appellate court wrote: "It hardly advances the interest of justice for a prosecutor to use testimony she knows to be false to discredit the evidence given by defense witnesses during her summation." n80 The appellate court found yet another prosecutor's "decision to accuse the defendant (and squarely implicat[e] his counsel) of fabricating his defense" during summation to be "indefensible." n81 Other appellate decisions found flagrant or intentional summation misconduct as well as Brady violations requiring reversal. n82 All of the prosecutors in these cases continued to receive increases in compensation; none, according to the records provided, were disciplined.

In 2003, Ramos accepted a settlement of $ 5 million. n83 At the time, this was the largest settlement of any wrongful conviction case in New York State. n84 Defending the conduct of the District Attorney's Office to The New York Times, District Attorney Johnson and his chief assistant, Barry Kluger, contended that prosecutors were dealt with "on an individual basis," apparently informally, that often a prosecutor cited for misconduct was no longer employed by the Office when the appellate decision criticizing his conduct was handed down, and that -- contrary to the above-cited decisions finding intentional or flagrant misconduct -- "[n]ot one of [the 72 cases] involves a finding of deliberate or intentional ... concealment of evidence. ... They were technical rulings or a slip of the tongue." n85

2. The Maldonado and Poventud Cases

Despite the Ramos settlement and increased public attention to wrongful convictions, attitudes at the top of the Bronx District Attorney's Office do not appear to have changed. The author, with co-counsel, brought separate lawsuits in state and federal court for a Brady violation that caused two Bronx criminal defendants to serve four and nine years, respectively, on convictions for attempted murder and robbery. n86 The violation involved the withholding of evidence that the sole eyewitness at [*35] trial, the victim, had made an erroneous photo identification of an individual who was in prison when the crime occurred. The complaints in the civil lawsuits alleged that the violation was caused either by the police withholding the information from the D.A., or by the D.A. knowingly withholding it from the defense. Although ultimately the plaintiffs concluded that the responsibility was solely that of the police, they initially pursued Monell discovery concerning the disciplinary policies of the Bronx district attorney through 2007, thereby updating the information obtained during the Ramos case.

Depositions were taken of the executive staff in the District Attorney's Office, including Odalys Alonso, the chief assistant district attorney, who has responsibility for the overall management of the Office, including hiring, firing, and discipline; the counsel to the district attorney since 1989, Anthony Girese, who deals with legal issues and has been the Office's liaison with the Departmental Disciplinary Committee; the chief of appeals since 1994, Joseph Ferdenzi; and District Attorney Johnson himself.

Alonso n87 acknowledged that there were no provisions concerning internal disciplining of prosecutors for misconduct in connection with the handling of criminal cases in the Office's standard employment agreement, its employee manual, or any other document. n88 The "system" is that the district attorney is told when court decisions or defense motions or appeals alleging improper behavior are received by the Office, and then he determines whether to conduct an investigation or to impose some form of discipline. n89 No standard exists for determining when discipline will be imposed, other than the subjective judgment of the district attorney.

Alonso, who has been a supervisor or a member of the executive staff during Johnson's entire 22-year tenure in office, recalled only a single instance of formal discipline, occurring in January 2002. n90 Girese, in his deposition, could recall no instance. n91 Neither could District Attorney Johnson. n92 In the incident recalled by Alonso, Johnson himself happened to walk into a courtroom where one of his assistant district attorneys was delivering a summation and was offended that it contained gratuitously inflammatory content. n93 Alonso testified that Johnson immediately instructed that ADA's supervisor to discipline the prosecutor, which she purportedly did through an oral admonishment and by withholding any raise or bonus at the prosecutor's next salary review. n94 However, no records were produced evidencing that such sanctions were imposed. n95 On appeal, the District Attorney's Office fully defended the ADA's conduct as appropriate n96 despite the supposed finding by the district attorney himself that the prosecutor had behaved so inappropriately that he deserved to be sanctioned. This was the single prosecutor during Johnson's 22 years in office that anyone could recall being formally "disciplined" for violating a rule of behavior in the prosecution of a criminal case.

Johnson testified that he has never had to consider any discipline for Brady violations because there have been no "intentional" violations, to his knowledge, while he has been district attorney. n97 In fact, during the Johnson era, there have been numerous court decisions finding flagrant or intentional Brady violations or misconduct during summations. n98 Moreover, there have been "dozens" more decisions finding improper behavior but declining to reverse under the harmless error doctrine. n99

Johnson acknowledged that his Office has no policy concerning referrals of prosecutors to the outside Departmental Disciplinary Committee for apparent ethical violations. n100 He and Anthony Girese were unaware of any such referral n101 or of any Bronx prosecutor who had received departmental discipline for misconduct in handling a criminal matter. n102

 

B. The Queens District Attorney's Office: The Su Case

1. Criminal Proceedings

Shih Wei Su was 18 years old when he was convicted of attempted murder at trial in Queens in 1992. The underlying incident involved the shooting of two victims at a pool hall in what the prosecution contended was a youth-gang-related incident. n103 The principal prosecution witness was Jeffrey Tom, a member of the Green Dragons, n104 which was a rival of the gang with which Su was allegedly affiliated. n105 Although Tom had his own robbery-by-extortion case, he denied, under questioning by prosecutor Linda Rosero, that the lenient plea bargain he had received (a youthful offender adjudication and sentence of probation) had resulted from any deal with the District Attorney's Office. n106 The prosecutor, in her summation, argued that Tom's testimony was truthful. n107 Su was convicted and received the maximum total sentence of 16 2/3 to 50 years in prison, and his appeal was denied. n108

In 1999, over the district attorney's objection, a judge finally ordered Tom's plea and sentencing minutes unsealed, reasoning (contrary to the D.A.'s apparent view) that a prosecutor "has no legitimate interest in shielding possible perjury." n109 The minutes proved that, in fact, a prosecutor had made an explicit, on-the-record deal with Tom to grant him leniency in exchange for his trial testimony against Su. n110 Tom's flat denials, elicited by a different prosecutor (Rosero) at Su's trial, had been false. n111 While the New York courts would not grant Su any relief, accepting the district attorney's procedural arguments, n112 on July 11, 2003, the Second Circuit granted Su's federal habeas corpus petition and directed that he be retried within 60 days or released. n113 The court excoriated the prosecutor for "knowingly elicit[ing] false testimony" n114 from a witness whose credibility was "central to the deliberations of any reasonable jury," n115 for failing to correct such false testimony, and for "bolster[ing]" Tom's lies during her closing argument. n116 In vacating the conviction, it reasoned that a conviction obtained through "testimony the prosecutor knows to be false is repugnant to the Constitution." n117

As the Bronx District Attorney's Office had done in the Poventud case, n118 the Queens district attorney tried to get Su to accept a "time-served" plea bargain, but Su refused. After postponing the trial on several occasions, District Attorney Richard Brown's Office, on November 5, 2003, obtained dismissal of all charges. n119

2. The Attorney Grievance Process

Even while he was facing the prospect of retrial, on Sept. 12, 2003, Su filed a formal pro se complaint against prosecutor Rosero with the Grievance Committee of the New York State Appellate Division, Second Judicial Department. n120 Rather than dispute Su's misconduct allegations, Rosero pleaded for leniency while blaming her mistakes on "inexperience" (even though she had been in the office nearly four years) and on unnamed colleagues. n121

By letter dated Jan. 22, 2004, Su [*36] refuted Rosero's letter. n122 He contended that she had not been a passive, hapless victim of a rogue witness, but had refused to correct Tom's testimony and then "capitalized" on it in her summation. n123 Su pointed out that the Second Circuit had found her misconduct to have been deliberate, and that basic attorney disciplinary rules prohibit such deceitful behavior. "The Grievance Committee and the Appellate Division regularly sanction attorneys for mere negligence in handling client funds and other client matters," Su wrote. n124 Observing that the prosecutor had "cost me 13 years of my life," Su continued, "even intentional misconduct in such matters pales in importance compared to the damage done by a public prosecutor who knowingly withholds exculpatory evidence or misleads the court or the defense." n125 He asked for permission to participate in the disciplinary proceedings regarding the prosecutor.

Su did not hear at all from the Committee until he received a seven-line letter from Chief Counsel Diana Maxfield Kearse informing him that a final decision already had been made: "The attorney has been issued an Admonition and a permanent record has been made." n126 An "admonition" is the lightest sanction that may be imposed in New York, and does not result in any public record. n127

On Feb. 28, 2004, Su wrote Kearse, asking what "investigation," if any, had been conducted. n128 "Was [the prosecutor]'s unbelievable defense that she was unaware of her obligation to correct testimony she knew to be false challenged in any way? ... What was the Committee's reasoning in concluding that knowing misconduct by an experienced prosecutor (four years in the Office!) resulting in a wrongful conviction and 13 years imprisonment merited only an Admonition?" n129 Su requested the opportunity to present his case to the full Committee. n130

Assistant Counsel Melissa D. Broder responded on March 22, 2005. There is no procedure to appeal a sanction, she wrote. Su was "free to consult with counsel regarding any civil remedies which may be available to you regarding the above-named attorney." n131 Su still did not give up. On March 30, he again wrote Chief Counsel Kearse:

 

 

Even jaywalking can get prison time. So can stealing a loaf of bread. How is it possible that an experienced prosecutor who knowingly broke every bar association code, every constitutional law, and more only gets an admonition? ...

 

With all due respect, the message that this committee is sending out is loud and clear: Don't worry about using false evidence; you will only get an admonition if you are stupid enough to admit it. n132

On April 26, 2005, Broder curtly reminded Su that "this matter is closed" and that he could consult with counsel regarding civil remedies. ... "This should conclude our correspondences regarding this matter." n133

3. The Civil Lawsuit

On Feb. 16, 2006, Su took up the Grievance Committee's suggestion. He filed suit against the city of New York in the U.S. District Court for the Eastern District of New York, seeking monetary damages pursuant to § 1983 for his wrongful conviction. n134 Su attached to his complaint an exhibit listing 28 cases, decided between 1985 and 2004, involving wrongful withholding of evidence by Queens prosecutors, and 59 cases in which such prosecutors during the same time frame relied on false, misleading, or inflammatory evidence or argument, and alleged that such prosecutors had not been disciplined. n135

Records disclosed during discovery confirmed that there was no instance through 2000 in which any prosecutor had been formally disciplined. n136 Discovery materials showed that, as in the Bronx, the Queens District Attorney's Office had (and has) no published or formal code of conduct for prosecutors, and no formal disciplinary policies or procedures. The informal "procedure" was for the district attorney, if he concluded that a verbal reprimand was in order, to handwrite a note to the chief assistant district attorney, John Ryan, to "speak to" the ADA involved. n137 However, only three such notes were produced, n138 and officials could not name any ADA who actually had been "spoken to." n139

One ADA, Claude Stuart, was dismissed in 2002 after being exposed in the news media for lying to a state court judge about whether an exculpatory witness was available to come to court to testify. n140 Ultimately the court's Disciplinary Committee suspended him from practice and he was fired by the District Attorney's Office. n141 This fiasco might never have occurred had the Office disciplined the ADA when he previously was exposed for knowingly relying on false argument, which the appellate court, in reversing, termed "an abrogation of his responsibility as a prosecutor," "egregious," and "improper." n142 The district attorney's chief of appeals, John Castellano, testified in his deposition that he told Chief Assistant District Attorney Ryan that Stuart's conduct had been "not tolerable" and was "inexcusable." n143 However, Castellano was unaware if Stuart had been disciplined for that misconduct, and Stuart's personnel records contained no evidence that he had been. n144

The deposition of Su's own prosecutor provided an interesting insight into the attitude of the District Attorney's Office at the highest levels concerning Brady compliance. While she acknowledged that her failure to disclose the truth about Jeffrey Tom's relationship with her Office had been inexcusable, she revealed that it had been consistent with her training to erect a "Chinese wall" in order to avoid obtaining knowledge of deals other prosecutors in the Office had made with cooperating witnesses. n145 This policy was inconsistent with Ethical Consideration 7-13 of the New York State Code of Professional Responsibility, which prohibited prosecutors from consciously avoiding knowledge they are required to disclose to their adversaries, n146 and defied the New York Court of Appeals' prior decision, People v. Steadman, n147 which condemned this policy in the same District Attorney's Office.

In Steadman, the trial judge, the Appellate Division, and the Court of Appeals each blasted the Queens District Attorney's unlawful policy, promulgated at an executive level, to shield trial prosecutors from knowledge of deals made by other prosecutors in the Office with cooperating witnesses. n148 The Office's chief of trials, Daniel McCarthy, had made the deal in Steadman but kept it from the trial ADAs, who remained willfully ignorant of the deal. At every judicial level, through appeal to the highest court, the District Attorney's Office had defended its policy and McCarthy's conduct. Unsurprisingly, the Office did not chastise the prosecutors involved because they had been implementing the policy of the Office.

Indeed, unchastened by the court decisions at every level of the system, the District Attorney's Office had promoted [*37] one of the two line prosecutors to a supervisory position, n149 while allowing the policy to remain in effect and victimize Shih Wei Su. Meanwhile, in a further revealing irony, chief of trials McCarthy was hired by Bronx District Attorney Johnson to become his director of trial training. n150

The suspect behavior of Su's prosecutor in failing to disclose the truth about the Jeffrey Tom deal was known internally for years, but the Office was indifferent to it. Prosecutors assigned to oppose Su's direct appeal and collateral attacks on his conviction acknowledged that they had an ongoing Brady obligation to investigate whether Su's Brady allegations were correct, but they never did so. When one such ADA attempted to question Su's trial prosecutor, the latter refused to cooperate, and no one in the Appeals Bureau brought this remarkable and intolerable stonewalling to the attention of executives in the Office. n151 After Su filed his federal habeas petition, Chief of Appeals Castellano questioned Su's prosecutor, who claimed not to recall why she had not corrected Tom's false testimony, and Castellano conducted no further investigation into her behavior before preparing opposition papers. n152

In 2003, shortly after she had left the District Attorney's Office, Su's prosecutor, Rosero, learned from a news report that the Second Circuit had vacated Su's conviction. Rosero telephoned Ryan, the district attorney's long-time chief assistant, to complain. Ryan responded: "Look ... you are just going to have a bad day, that's all." n153 Another high-level prosecutor in the Office told her, "Don't worry, you're a good attorney. Everything will work out." n154

While no records were kept of complaints, findings of misconduct, or alleged verbal reprimands of prosecutors, the contrary was true when it came to success in obtaining convictions. Charles Testagrossa, the executive assistant district attorney in charge of the Major Crimes Division, testified that ADAs and their supervisors, under previous and the present district attorneys, kept track of their trial won-loss records. n155 He said he perceived that their victory percentage affected their promotions and compensation. n156

As discovery in the Su case neared completion, the city strenuously opposed the author's efforts to depose the district attorney, Richard Brown, and his chief assistant, Ryan, concerning their Brady disclosure and disciplinary policies. After the court directed Ryan to submit to a deposition and held open the possibility that District Attorney Brown could be deposed as well, the parties reached a $ 3.5 million settlement.

 

C. Brooklyn District Attorney's Office: The Zahrey Case

1. Criminal Proceedings

Brooklyn prosecutors, working with the New York City Police Department's Internal Affairs Bureau following highly-publicized police corruption hearings in 1994, attempted to build a case against an undercover narcotics detective with an excellent performance record, Zaher Zahrey. n157 Zahrey was suspected because he had continued playing playground "pick-up" basketball games with several individuals whom the police believed had been involved in criminal activity, including drug-related robberies and even two murders. n158 An intensive, two-year investigation yielded just one witness -- a crack-addicted career criminal named Sidney Quick -- who made bizarrely inconsistent accusations and was tape-recorded being fed a false story while being pressured by IAB detectives to further accuse Zahrey. When the Brooklyn prosecutors could not corroborate Quick, they successfully lobbied federal prosecutors, who were not hamstrung by any corroboration requirement, to bring the case, but did not turn over the exculpatory tape recording or other evidence undercutting Quick's credibility until after Zahrey already had been indicted and his reputation had been destroyed in the news media. n159 Zahrey was held for nearly nine months, without bail, pending the conclusion of federal trial proceedings. n160 After a six-week trial, at which the author represented him, he was fully acquitted in June 1997. n161

2. Civil Proceedings

In 1998, Zahrey brought a lawsuit against various individual prosecutors and detectives for nonprivileged investigative misconduct, and against the city of New York, under Monell, for the indifference of Brooklyn District Attorney Charles J. Hynes to Brady violations and related unlawful behavior. n162 While the Brady claim ultimately was dismissed, n163 Zahrey, before settling, n164 succeeded in obtaining considerable discovery showing that the Brooklyn District Attorney's Office, like its counterparts [*38] in Queens and the Bronx, had no formal disciplinary rules and procedures and no history of disciplining prosecutors found to have engaged in misconduct, including the withholding of Brady material.

In a deposition held on Oct. 18, 2005, Dino G. Amoroso, former counsel to the district attorney, and then executive assistant district attorney, testified that he was responsible for implementing Hynes' policies to ensure compliance with ethical standards and was knowledgeable about any specific investigations of prosecutors for alleged misconduct since Hynes' tenure began in 1990. n165 He testified that the District Attorney's Office had no employee manual or other published rules or procedures concerning standards of behavior, potential sanctions for violating them, or procedures for investigating and imposing discipline for Brady violations or other misconduct. n166 The Office would distribute memoranda on discovery and Brady obligations, but had no follow-up procedure to make sure individual prosecutors read them, and no specific Brady "policy." n167

Prosecutors were told informally that "conscious" ethical violations, including under Brady, would have the "highest consequence," including dismissal from the Office -- as opposed to inadvertent mistakes during the "hurly-burly of trials." n168 However, between 1990 and 2005, no prosecutor was ever investigated, let alone admonished or disciplined, for misconduct related to his or her handling of a criminal investigation or prosecution. n169

During this 15-year period, however, there were numerous court decisions finding serious misbehavior by Brooklyn prosecutors, including in the Brady context. These cases included instances where ADAs withheld obvious exculpatory witness statements or impeachment material, or made false or misleading presentations of the evidence at trial. n170

Numerous additional instances of misconduct through the present day were identified in the Complaint in Collins v. City of New York, a lawsuit the author recently filed based upon findings by a federal judge of pervasive Brady violations, witness coercion, and other misconduct by the chief of District Attorney Hynes' Rackets Division, Michael F. Vecchione. n171 In the highly publicized Jabbar Collins murder case, n172 Hynes' Office agreed to federal habeas corpus relief for Collins, his immediate release after 15 years in prison, and the dismissal of the indictment without retrial, n173 rather than have Vecchione, the Office's chief "anti-corruption" prosecutor, n174 and other prosecutors in the Office, testify at a habeas hearing ordered by Federal District Judge Dora Irizarry. n175 The Office admitted that it had failed to disclose a secret recantation by its chief witness, n176 a recantation that Vecchione, in a previous sworn affidavit, had categorically denied ever occurred. n177 In testimony that the federal court found "credible," a second key witness testified that, when he was questioned by Vecchione during trial preparation, he was a drug addict, and Vecchione threatened him with physical harm and secretly incarcerated him for a week without following legally-required material witness procedures. n178 The court characterized the prosecution's failure to disclose this information, along with still additional evidence refuting the testimony of the third and final significant prosecution trial witness, as "shameful." n179

Significantly, immediately after Judge Irizarry denounced Vecchione's behavior, Hynes ratified it. He told the news media that he would conduct no investigation, praised Vecchione as "a very, very principled lawyer," n180 and pronounced him "not guilty of any misconduct." n181 Collins's lawsuit contends that Vecchione's behavior did not simply result from Hynes' indifference to coercion of witnesses and Brady violations, but that such misconduct, at least in high-profile cases that the Office was anxious to win, was the policy of the Office. n182

 

Conclusion

Contrary to the Supreme Court's assumption in Imbler and in subsequent decisions, experience shows that prosecutors are not disciplined -- either internally by their Offices or externally by court or bar disciplinary committees -- for violating their Brady or other due process obligations during criminal proceedings. In future cases, when analyzing policy considerations relating to individual and municipal liability by prosecutors or their employers for violations of the constitutional rights of criminal suspects or defendants, the Supreme Court should abandon its false assumption that prosecutors, theoretically subject to professional codes, really are disciplined or have reason to fear being disciplined by their offices or the bar. Otherwise, the Court will be continuing to premise significant civil rights decisions on a fiction that has plagued constitutional jurisprudence for nearly 25 years.

Thanks to Terri S. Rosenblatt for providing invaluable assistance in the research and drafting of this article.

 

GRAPHIC:

PICTURE, no caption; PHOTO, Joel B. Rudin

 

FOOTNOTE-1:

 

 

 

n1 424 U.S. 409 (1976).

 

 

 

n2 See Kalina v. Fletcher, 522 U.S. 118, 126 (1997) (absolute immunity applies when a prosecutor appears in court to present evidence in support of a search warrant application); Burns v. Reed, 500 U.S. 487, 492 (2003) (absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding); Van de Kamp v. Goldstein, 555 U.S. 335 (2009) (absolute immunity applies for the district attorney's failure to institute information sharing among prosecutor's staff members concerning informants).

 

 

 

n3 Imbler, 424 U.S. at 429.

 

 

 

n4 See Connick v. Thompson, 131 S. Ct. 1350, 1363 (2011) (prosecutors who violate their "ethical obligations [are] subject to professional discipline, including sanctions, suspension, and disbarment"); Burns v. Reed, 500 U.S. 478, 486 (1991) ("there are other checks on prosecutorial misconduct, including the criminal law and professional discipline") citing Imbler, 424 U.S. at 429; Malley v. Briggs, 475 US 335, 343 n.5 (1986) (noting "the organized bar's development and enforcement of professional standards for prosecutors also lessen the danger that absolute immunity will become a shield for prosecutorial misconduct").

 

 

 

n5 "Proof" requirements include proving the existence of an unlawful policy, or a policy of deliberate indifference to violations when they occur, and proof of causation. See generally Connick v. Thompson, supra note 4, at 1359. See also 2 SHELDON A. NAHMOND, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012), § 6:7 (noting that "defendant wins" unless plaintiff can show a causal connection between the municipality's breach of duty and injury); § 6:10 (plaintiff's burden to prove unlawful custom or policy is "substantial").

 

 

 

n6 See, e.g., Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N.C. L. REV. 721, 743 (2001) (studying reports of prosecutorial misconduct and reported cases of discipline and finding that "prosecutors are disciplined rarely, both in the abstract and in comparison to private lawyers"); Shelby A.D. Moore, Who Is Keeping the Gate? What Do We Do When Prosecutors Breach the Ethical Responsibilities They Have Sworn to Uphold?, 47 S. TEX. L. REV. 801, 807 (2006); see also Angela J. Davis, The Legal Profession's Failure to Discipline Unethical Prosecutors, 36 HOFSTRA L. REV. 275, 296 (2007) (terming the discipline received by the prosecutor in the "Duke lacrosse" case the "Mike Nifong exception" because the case represents a rare example of prosecutorial discipline); Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecution Discipline Seriously, 8 D.C. L. REV. 275, 276 n.7 (2004).

 

 

 

n7 The District Attorneys Association of the State of New York did recently release a new ethics handbook. See Dist. Attys Ass'n of the State of N.Y., "The Right Thing": Ethical Guidelines for Prosecutors (2011). This handbook contains strong, generally progressive statements about disclosure obligations of prosecutors, including Brady material. Id. It also includes a strong statement of potential consequences for prosecutors who act unethically, such as censure or written reprimand, termination, disbarment, and even criminal prosecution. Id. at 6 -7. However, the booklet makes no reference to any obligation of district attorneys to adopt any formal or regular disciplinary procedures, to actually impose such discipline, or to refrain from ratifying misbehavior by defending it in the courts. It remains to be seen whether the handbook's exhortations will be contradicted, as in the past, by official toleration of flagrant or intentional violations of the acknowledged rules.

 

 

 

n8 See infra Part II.

 

 

 

n9 Ramos v. City of New York, Index No. 21770/93 (Bronx County) (amended complaint filed October 20, 1995).

 

 

 

n10 See FRONTLINE: INNOCENCE LOST: OTHER WELL-KNOWN CASES, available at http://www.pbs.org/wgbh/pages/frontline/shows/innocence/etc/other.html (describing Merola's prosecution of the "Bronx Five" daycare center workers).

 

 

 

n11 STEPHEN GILLERS, IN THE PINK ROOM 2-3 (2006).

 

 

 

n12 Id.

 

 

 

n13 Id. at 3-4; see also Trial Transcript at 429, 431, People v. Ramos, No. 3280-84 (N.Y. Sup. Ct. Bronx Co. May 9-20, 1985) (on file with author).

 

 

 

n14 See People v. Ramos, 614 N.Y.S.2d 977, 980 (App. Div. 1994).

 

 

 

n15 See id.

 

 

 

n16 See id. at 981.

 

 

 

n17 See id. at 980-81.

 

 

 

n18 See id.

 

 

 

n19 See id.

 

 

 

n20 See People v. Ramos, No. 3280-84, slip op. at 9, 1992 WL 12620540 (N.Y. Sup. Ct. Bronx Co. June 1, 1992), aff'd, 614 N.Y.S.2d 977 (App. Div. 1994).

 

 

 

n21 Appellant's Brief at 29, People v. Ramos, No. 3280-84 (N.Y. App. Div. July 1993) (on file with author).

 

 

 

n22 See id. at 30.

 

 

 

n23 Id.

 

 

 

n24 Id. at 31.

 

 

 

n25 Id. at 32.

 

 

 

n26 People v. Ramos, 614 N.Y.S.2d 977 (App. Div. 1994).

 

 

 

n27 Ramos v. City of New York, 729 N.Y.S.2d 678, 685 (App. Div. 2001).

 

 

 

n28 Id. at 668-69, 750-51.

 

 

 

n29 See N.Y. State Supreme Court Appellate Div. First Dep't Departmental Disciplinary Comm., http://www.courts.state.ny.us/courts/ad1/Committees&Programs/DDC/index.shtml.

 

 

 

n30 N.Y. COMP. CODES R. & REGS. tit. 22, § 605.6(a) (1994).

 

 

 

n31 Id. § 605.5(a).

 

 

 

n32 N.Y. JUDICIARY LAW § 90(10) (McKinney 2002).

 

 

 

n33 See Deposition of Diana Farrell at 683, 689, Ramos v. City of New York, No. 21170-93 (N.Y. Sup. Ct. Bronx Co. deposed Oct. 7, 1997) (on file with author).

 

 

 

n34 See Deposition of Diana Farrell, supra note 33, at 687.

 

 

 

n35 See id.

 

 

 

n36 974 F.2d 293 (2d Cir. 1992).

 

 

 

n37 See id. at 296, 300.

 

 

 

n38 Although Walker suggested that a showing of inadequate training could be made without a history of prior complaints or findings of similar misconduct, that view was overruled by the Supreme Court in Connick v. Thompson, 131 S. Ct. 1350 (2011). However, the Ramos lawsuit and the others brought by the author have been based on multiple prior incidents of misconduct, a history of failure to discipline, and evidence of ratification reflecting an unlawful policy. Connick does not undercut such theories of recovery.

 

 

 

n39 Walker, 974 F.2d at 301.

 

 

 

n40 See Amended Complaint at 24-36, Ramos v. City of New York, No. 21770-93 (N.Y. Sup. Ct. Bronx Co. filed Oct. 20, 1995) (on file with author). The complaint also named as defendants the Human Resources Administration (HRA) and the New York City Police Department, under different theories of liability. Id.

 

 

 

n41 See Ramos v. City of New York, 729 N.Y.S.2d 678, 681 (App. Div. 2001).

 

 

 

n42 See id. The court's directive was contained in its initial, published decision and in an unpublished supplemental order on file with the author. Plaintiff's Second Supplemental Demand for Discovery & Inspection, Ramos v. City of New York, No. 21770-93 (N.Y. Sup. Ct. Bronx Co. Mar. 17, 1998) (on file with author); see also Order, Ramos v. City of New York, No. 21770-93 (Rosenberger, J.) (N.Y. App. Div. Dec. 27, 2001) (on file with author).

 

 

 

n43 Personnel records disclosed in discovery, Ramos v. City of New York, No. 21770-93 (N.Y. Sup. Ct. Bronx Co. filed Apr. 1, 1996) (on file with author).

 

 

 

n44 Id.

 

 

 

n45 Id.

 

 

 

n46 Letter from Stuart P. Levy, Assistant Dist. Att'y, Office of the Dist. Att'y, Bronx Cnty., to Hon. Betty Owen Stinson, Supreme Court of the State of N.Y., Bronx Cnty. (July 24, 2002) (on file with the author).

 

 

 

n47 See People v. Bussey, 403 N.Y.S.2d 739, 739 (App. Div. 1978).

 

 

 

n48 Id.

 

 

 

n49 Id. at 741-42.

 

 

 

n50 Id. at 742.

 

 

 

n51 Personnel records disclosed in discovery, supra note 43.

 

 

 

n52 Id.

 

 

 

n53 Id.

 

 

 

n54 Id.

 

 

 

n55 People v. Galloway, 54 N.Y.2d 396 (1981), aff'g 430 N.Y.S.2d 93 (App. Div. 1980); People v. Wheeler, 438 N.Y.S.2d 467 (App. Div. 1981).

 

 

 

n56 Galloway, 54 N.Y.2d at 414 n.4 (Meyer, J., dissenting).

 

 

 

n57 Id. at 415 (Meyer, J., dissenting) (quoting People v. Bussey, 403 N.Y.S.2d 739, 742 (App. Div. 1978)) (internal quotation marks omitted).

 

 

 

n58 Id. (quoting Wheeler, 438 N.Y.S.2d at 467) (internal quotation marks omitted).

 

 

 

n59 Galloway, 54 N.Y.2d at 415.

 

 

 

n60 Personnel records disclosed in discovery, supra note 43.

 

 

 

n61 Letter from Mario Merola, Dist. Att'y, Office of the Dist. Att'y, Bronx Cnty., to Martin London, Supreme Court, Appellate Div., Departmental Disciplinary Comm. (Nov. 22, 1982) (on file with author).

 

 

 

n62 Id.

 

 

 

n63 Personnel records disclosed in discovery, supra note 43.

 

 

 

n64 Id.

 

 

 

n65 See id.

 

 

 

n66 See People v. Perez, 455 N.Y.S.2d 89, 91 (App. Div. 1982).

 

 

 

n67 See People v. Rosa, 489 N.Y.S.2d 722, 728 (App. Div. 1985).

 

 

 

n68 Id. at 726.

 

 

 

n69 Id. at 728.

 

 

 

n70 People v. Sandy, 499 N.Y.S.2d 75, 77 (App. Div. 1986) (citations omitted).

 

 

 

n71 Personnel records disclosed in discovery, supra note 43.

 

 

 

n72 See People v. Qualls, 70 N.Y.2d 863 (1987) (remanding for evidentiary hearing concerning apparent Brady violation); People v. Jorge, 566 N.Y.S.2d 649, 650 (App. Div. 1991) (reversing murder conviction because prosecutor misstated the testimony and cited the Bible while exhorting the jury to "do your duty"); People v. Taylor, 556 N.Y.S.2d 307 (App. Div. 1990) (declining to reverse for prosecutor's biblical quotations); People v. Hamilton, 502 N.Y.S.2d 747, 748 (App. Div. 1986) (reversing robbery conviction "because the fundamental fairness of the trial was severely impaired by repetitive improper prosecutorial trial tactics").

 

 

 

n73 Personnel records disclosed in discovery, supra note 43.

 

 

 

n74 Id.

 

 

 

n75 Deposition of Diana Farrell, supra note 33, at 844.

 

 

 

n76 Id. at 303, 318-19, 762, 767, 769.

 

 

 

n77 Id. at 667.

 

 

 

n78 People v. Olmo, 545 N.Y.S.2d 285, 286-87 (App. Div. 1989) (quoting People v. Savvides, 1 N.Y.2d 554, 557 (1956)).

 

 

 

n79 643 N.Y.S.2d 963 (App. Div. 1996).

 

 

 

n80 Id. at 969.

 

 

 

n81 People v. Negron, 556 N.Y.S.2d 41, 43 (App. Div. 1990).

 

 

 

n82 See People v. Banfield, 599 N.Y.S.2d 227 (App. Div. 1993) (reversing conviction where prosecutor promised witness "favorable disposition" of witness's case, but did not disclose that to defendants); People v. Byfield, 194 A.D.2d 331 (N.Y. App. Div. 1993) (companion case to Banfield); People v. Mudd, 585 N.Y.S.2d 364, 366 (App. Div. 1992) (finding summation statements "entirely outside the bounds of rhetorical comment"); People v. McReynolds, 572 N.Y.S.2d 8, 8 (App. Div. 1991) (finding that prosecutor "so overstepped the bounds of permissible comment that [the defendant] was denied a fair trial"); People v. Okafor, 202 N.Y. L.J. 21 (N.Y. App. Div. Sept. 8, 1989) (finding Rosario and Brady violations and reversing conviction where prosecutor withheld potentially exculpatory witness statements in a child sex abuse case); People v. Bagarozy, 522 N.Y.S.2d 848, 854-55 (App. Div. 1987) (deciding that inflammatory summation and evidence distracted jury from real issues in the case); People v. Bailey, 503 N.Y.S.2d 16, 18 (App. Div. 1986) (finding that inflammatory summation and vouching was "calculated to produce a wrongful conviction"); People v. Hamilton, 502 N.Y.S.2d 747, 750 (App. Div. 1986) (noting that "central theme" of summation was "wholly improper"); People v. Ortiz, 497 N.Y.S.2d 678, 680 (App. Div. 1986) (reversing conviction based on prosecutor's "obdurate pattern of inflammatory remarks throughout the ... summation"); People v. Pressley, 462 N.Y.S.2d 864, 866-67 (App. Div. 1983) (reversing conviction for prosecutor's "repeated[] attack[s]" on defendant and improper "persistent references" to defendant's refusal to incriminate himself by cooperating with law enforcement).

 

 

 

n83 Andrea Elliott, City Gives $ 5 Million to Man Wrongly Imprisoned in Child's Rape, N.Y.TIMES, Dec. 16, 2003, at B3.

 

 

 

n84 Id.

 

 

 

n85 Andrea Elliott & Benjamin Weiser, When Prosecutors Err, Others Pay the Price, N.Y.TIMES, Mar. 21, 2004, at 25.

 

 

 

n86 Co-counsel in the Poventud and Maldonado civil lawsuits was Julia Kuan, Esq., of Romano & Kuan, PLLC. The Brady violations came to light in this case after Mr. Maldonado's conviction was reversed on appeal by the New York State Court of Appeals for an unrelated evidentiary error. At Maldonado's retrial, at which he was represented by Ms. Kuan, it was revealed that the victim and sole eyewitness had previously identified as the perpetrator Mr. Poventud's brother, who was in prison at the time and could not have committed the crime. Once the jury learned that this witness had made an erroneous identification before he identified Maldonado, he was fully acquitted. Ms. Kuan then filed a post-conviction motion pursuant to Criminal Procedure Law Sec. 440.10 on behalf of Mr. Poventud, on the basis that failure to disclose the victim's mistaken identification at his trial was a Brady violation. The court agreed, and on Oct. 6, 2005, it vacated his conviction. See People v. Poventud, 10 Misc.3d 337 (Sup. Ct. Bronx County 2005). Once his conviction was reversed, the prosecution threatened to appeal and argued that Poventud, who was destitute, should be held on impossibly high bail. The prosecution then made him an offer he could not refuse: a plea to reduced charges and a one-year sentence. Since he had already served nine years, this meant he would be released immediately. Poventud, who had been viciously and repeatedly assaulted in prison, accepted, but sued anyway. An order dismissing the case based upon his plea is on appeal to the Second Circuit. See Poventud v. City of New York, Dckt. No. 12-1011 (2d Cir. Appellant's brief filed May 25, 2012).

 

 

 

n87 Deposition of Odalys Alonso at 2, Poventud v. City of New York, 07 Civ. 3998 (S.D.N.Y. deposed Nov. 29, 2010) (on file with author).

 

 

 

n88 Id. at 39-42.

 

 

 

n89 Id. at 44-45.

 

 

 

n90 Id. at 59-60. Odalys Alonso recalled that at some point in the past assistant district attorneys in the office were informed that another assistant district attorney was disciplined, but she did not recall any details about it, and the prosecutor did not receive any negative evaluation. Id. at 64.

 

 

 

n91 Deposition of Anthony Girese at 119-20, Poventud v. City of New York, 07 Civ. 3998 (S.D.N.Y. deposed Mar. 24, 2011) (on file with author).

 

 

 

n92 Deposition of Robert Johnson at 60-66, Poventud v. City of New York, 07 Civ. 3998 (S.D.N.Y. filed May 22, 2007) (on file with author).

 

 

 

n93 Deposition of Odalys Alonso, supra note 87, at 124-25.

 

 

 

n94 Id. at 131-33.

 

 

 

n95 Id. at 140, 145-47 (stating that the prosecutor received a merit bonus and raise); see also personnel records disclosed in discovery in connection with Poventud v. City of New York, 07 Civ. 3998 (S.D.N.Y. filed May 22, 2007), and Maldonado v. City of New York, Index No. 17568-2004 (Bronx County filed June 14, 2004) (on file with author).

 

 

 

n96 Id. at 154-57.

 

 

 

n97 Deposition of Robert Johnson, supra note 92, at 43.

 

 

 

n98 See, e.g., People v. Garcia, 848 N.Y.S.2d 137, 140 (App. Div. 2007) (finding prosecutor committed "flagrant violation" when he withheld material impeachment evidence, and criticizing the People's defense of this conduct as "disingenuous" and "disquieting"); People v. Mickel, 710 N.Y.S.2d 70, 71 (App. Div. 2000) (reversing conviction where prosecutor failed to disclose "significant" Brady material); People v. Olivero, 710 N.Y.S.2d 29, 31 (App. Div. 2000) (finding prosecutor's comments in summation "manifestly unfair"); People v. Lantigua, 643 N.Y.S.2d 963, 969 (App. Div. 1996) (finding that prosecutor intentionally withheld Brady material and made knowingly false argument in summation); People v. Williams, 622 N.Y.S.2d 275, 275 (App. Div. 1995) ("The basis for the reversal of this case lies in the prosecutor's repeated disregard of the rulings of the trial court ... in asking improper questions of witnesses so that the constitutional right of the defendant to a fair trial was violated."); People v. Banfield, 599 N.Y.S.2d 227, 227 (App. Div. 1993) (reversing conviction where prosecutor promised witness "favorable disposition" of witness's case, but did not disclose that to defendants); People v. Byfield, 194 A.D.2d 331, 332 (N.Y. App. Div. 1993) (companion case to Banfield); People v. Hernandez, 585 N.Y.S.2d 436, 436 (App. Div. 1992) (affirming conviction, but stating that it "deplore[d] [prosecutor's] excesses [in summation] in the strongest possible terms and ask[ed] that prosecutors be trained and admonished to refrain from such unnecessary conduct"); People v. Butler, 585 N.Y.S.2d 751, 753 (App. Div. 1992) (prosecutor's "overzealous[]" conduct and "numerous unwarranted remarks" during cross-examination and summation "deprived defendant of a fair trial"); People v. Mudd, 585 N.Y.S.2d 364, 366 (App. Div. 1992) (finding summation comments "directly contradictory to the evidence, prejudicial and entirely outside the bounds of acceptable rhetorical comment"); People v. McReynolds, 572 N.Y.S.2d 8, 8 (App. Div. 1991) (noting that prosecutor "impugn[ed] the defense counsel's integrity"); People v. Negron, 556 N.Y.S.2d 41, 43 (App. Div. 1990) (finding summation comments "particularly offensive" and conduct "grossly improper"). See also supra note 82, listing additional cases.

 

 

 

n99 Deposition of Anthony Girese, supra note 91, at 129.

 

 

 

n100 See Deposition of Robert Johnson, supra note 92, at 72-73.

 

 

 

n101 Id.

 

 

 

n102 Deposition of Anthony Girese, supra note 91, at 165-66.

 

 

 

n103 Su v. Filion, 335 F.3d 119, 122 (2d Cir.2003).

 

 

 

n104 See id. at 121-22.

 

 

 

n105 See id. at 122.

 

 

 

n106 Id. at 123-24.

 

 

 

n107 Id. at 124-25.

 

 

 

n108 Complaint, at 8, Su v. City of New York, No. 06 Civ. 687 (E.D.N.Y. filed Dec. 16, 2006) (on file with author).

 

 

 

n109 Motion: Unsealing at 2, People v. Su, No. 658-91 (Fisher, J.) (N.Y. Sup. Ct. Queens Co. dated Jan. 21, 1999) (on file with author).

 

 

 

n110 Su v. Filion, supra note 103 at 123.

 

 

 

n111 See id. at 121.

 

 

 

n112 See id.

 

 

 

n113 See id. at 130.

 

 

 

n114 Id. at 128.

 

 

 

n115 Id. at 129.

 

 

 

n116 Id. at 127.

 

 

 

n117 Id. at 126.

 

 

 

n118 See supra note 83 (discussing the plea bargain in Poventud).

 

 

 

n119 See Proceedings at 2, People v. Su, No. 0658-91 (N.Y. Sup Ct. Queens Co. dated Nov. 5, 2003) (on file with author).

 

 

 

n120 Letter from Shih Wei Su to Second Dep't Grievance Comm. (Sept. 12, 2003) (on file with author).

 

 

 

n121 Id.

 

 

 

n122 Letter from Shih Wei Su to Melissa D. Broder, Assistant Counsel, NYS Grievance Comm. for the Second & Eleventh Judicial Dists. (Jan. 22, 2004) (on file with author).

 

 

 

n123 Id.

 

 

 

n124 Id.

 

 

 

n125 Id.

 

 

 

n126 Letter from Diana Maxfield Kearse, Chief Counsel, NYS Grievance Comm. for the Second & Eleventh Judicial Dists., to Shih Wei Su (Feb. 3, 2005) (on file with author).

 

 

 

n127 See Appellate Div. Second Judicial Dep't, Attorney Matters: How to Make a Complaint About a Lawyer, http://www.courts.state.ny.us/courts/ad2/attorneymatters_ComplaintAboutaLawyer.shtml ("An Admonition is issued in those cases in which the committee finds that the lawyer committed clear professional misconduct that was not sufficiently serious to warrant the commencement of a formal disciplinary proceeding.") (last visited Sept. 2, 2011).

 

 

 

n128 Letter from Shih Wei Su to Diana Maxfield Kearse, Chief Counsel, NYS Grievance Comm. for the Second & Eleventh Judicial Dists. (Feb. 28, 2005) (on file with author).

 

 

 

n129 Id.

 

 

 

n130 Id.

 

 

 

n131 Letter from Melissa D. Broder, Assistant Counsel, NYS Grievance Comm. for the Second & Eleventh Judicial Dists., to Shih Wei Su (Mar. 22, 2005) (on file with author).

 

 

 

n132 Letter from Shih Wei Su to Diana Maxfield Kearse, Chief Counsel, NYS Grievance Comm. for the Second & Eleventh Judicial Dists. (Mar. 30, 2005) (on file with author).

 

 

 

n133 Letter from Melissa D. Broder, Assistant Counsel, NYS Grievance Comm. for the Second & Eleventh Judicial Dists., to Shih Wei Su (Apr. 26, 2005) (on file with author).

 

 

 

n134 Complaint, supra note 108, at 1.

 

 

 

n135 See id. at Ex. B.

 

 

 

n136 Personnel records disclosed in discovery, Su v. City of New York, 06 Civ. 687 (E.D.N.Y.) (on file with author). As with the Bronx District Attorney's Office, we generally have omitted the names of the line prosecutors apparently involved in misconduct as the names are unnecessary for the purposes of this article.

 

 

 

n137 Deposition of John Castellano, Su v .City of New York, 07 Civ. 687 (E.D.N.Y. deposed May 29, 2008) (on file with author), at 257-58.

 

 

 

n138 Personnel records disclosed in discovery, supra note 136.

 

 

 

n139 See Deposition of Charles Testagrossa, Su v .City of New York, 07 Civ. 687 (E.D.N.Y. deposed June 11, 2008) (on file with author) at 19; Deposition of John Castellano, supra note 135, at 257-58.

 

 

 

n140 Stacy Albin, Queens: Murder Conviction Questioned, N.Y. TIMES, Nov. 14, 2002, at B12.

 

 

 

n141 In re Stuart, 803 N.Y.S.2d 577 (App. Div. 2005).

 

 

 

n142 People v. Walters, 674 N.Y.S.2d 114, 116 (App. Div. 1998).

 

 

 

n143 Deposition of John Castellano, supra note 137, at 263.

 

 

 

n144 Id. at 263-64; see also personnel records disclosed in discovery, supra note 136.

 

 

 

n145 Deposition of Su's prosecutor, Linda Rosero, at 39-41, Su v. City of New York, 06 Civ. 687 (E.D.N.Y. deposed June 19, 2008) (on file with author).

 

 

 

n146 See New York Lawyer's Code of Professional Responsibility EC 7-13 ("[A] prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused."), available at http://www.nysba.org/Content/NavigationMenu/ForAttorneys/ProfessionalStandardsforAttorneys/

LawyersCodeDec2807.pdf. Though this ethics code has been superseded, it was the relevant language at the time of Su's prosecution.

 

 

 

n147 82 N.Y.2d 1 (1993).

 

 

 

n148 See id. at 7-8.

 

 

 

n149 See Deposition of Jack Warsawsky at 12, Su v. City of New York, 06 Civ. 687 (E.D.N.Y. deposed July 15, 2008) (on file with author) (testifying as to the promotion).

 

 

 

n150 Deposition of Daniel McCarthy at 9, Su v. City of New York, 06 Civ. 687 (E.D.N.Y. deposed Aug. 11, 2008) (on file with author). Mr. McCarthy is recently deceased.

 

 

 

n151 Deposition of Ranjana Piplani at 24-26, Su v. City of New York, 06 Civ. 687 (E.D.N.Y.deposed May 22, 2008) (on file with author).

 

 

 

n152 Deposition of John Castellano, supra note 137, at 73-77, 87.

 

 

 

n153 Deposition of Linda Rosero, supra note 145, at 19.

 

 

 

n154 Id. at 18.

 

 

 

n155 See Deposition of Charles Testagrossa, supra note 139, at 44-45.

 

 

 

n156 See id. at 46.

 

 

 

n157 Fifth Amended Complaint at 11, 14, Zahrey v. City of New York, No. 98 Civ. 4546 (S.D.N.Y. filed Feb. 23, 2004) (on file with author). See generally Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000).

 

 

 

n158 Fifth Amended Complaint, supra note 157, at 11-13.

 

 

 

n159 See id. at 37-39.

 

 

 

n160 See id. at 47, 50-51.

 

 

 

n161 See id. at 52.

 

 

 

n162 Zahrey v. City of New York, No. 98 Civ. 4546 (S.D.N.Y. filed June 26, 1998).

 

 

 

n163 Zahrey v. City of New York, No. 98 Civ. 4546, 2009 WL 54495, at *26 (S.D.N.Y. Jan. 7, 2009) (reasoning that Zahrey had not been prejudiced by any Brady violations since he was acquitted at trial, but holding that Brooklyn prosecutors were subject to personal liability for their involvement in manufacturing and using evidence they knew had been manufactured to cause federal criminal proceedings to be initiated and continued against Zahrey).

 

 

 

n164 Zahrey settled in 2009 with the city and five individual defendants, including two supervisory prosecutors. These two prosecutors, Charles Guria, the chief of the Brooklyn District Attorney's Civil Rights Bureau, and Theresa Corrigan, now the chief of the Gang Unit of the Nassau County District Attorney's Office and formerly a supervisor in Brooklyn, without admitting liability, agreed to a judgment, pursuant to Federal Rule of Civil Procedure 68, under which they were jointly and severally liable for $ 750,001, plus reasonable attorneys' fees, for their alleged investigative misconduct. The judgment was paid by New York City.

 

 

 

n165 Deposition of Dino G. Amoroso at 16-17, Zahrey v. City of New York, 98 Civ. 4546 (S.D.N.Y. deposed Oct. 18, 2005) (on file with author).

 

 

 

n166 Id. at 91-92.

 

 

 

n167 Deposition of Dennis Hawkins at 10-11, Zahrey v. City of New York, 98 Civ. 4546 (S.D.N.Y. deposed Mar. 13, 2000) (on file with author).

 

 

 

n168 Deposition of Dino G. Amoroso, supra note 165, at 90, 181-82.

 

 

 

n169 Id. at 101-02, 105, 107, 128, 146-48.

 

 

 

n170 See, e.g., Leka v. Portuondo, 257 F.3d 89, 106 (2d Cir. 2001) (prosecutor "suppressed" evidence that would have had a "seismic impact" on the case); People v. Calabria, 94 N.Y.2d 519 (2000) (prosecutor repeatedly defied court's ruling and made false or misleading argument to the jury); People v. Cotton, 662 N.Y.S.2d 135, 136 (App. Div. 2000) (prosecutor's summation betrayed his "duty not only to seek convictions but also to see that justice is done" and his "duty of fair dealing to the accused and candor to the courts") (citation omitted) (internal quotation marks omitted); People v. LaSalle, 663 N.Y.S.2d 79, 80 (App. Div. 1997) (prosecutor withheld impeachment evidence that "clearly" should have been disclosed); People v. Roberts, 611 N.Y.S.2d 214, 215 (App. Div. 1994) ("There is no doubt that the People violated the principles of Brady."); People v. Khadaidi, 608 N.Y.S.2d 471, 472-73 (App. Div. 1994) (prosecution withheld interview notes with complainant containing prior inconsistent statements); People v. Jackson, 603 N.Y.S.2d 558, 559 (App. Div. 1993) (prosecution withheld several pieces of exculpatory and impeachment evidence in arson case); People v. Inswood, 580 N.Y.S.2d 39, 40 (App. Div. 1992) (prosecutor failed to turn over Brady material that revealed existence of potentially exculpatory witnesses).

 

 

 

n171 See generally Complaint, Collins v. City of New York, No. 11 Civ. 766 (E.D.N.Y. filed Feb. 16, 2011); see also John Eligon, In Suit, Freed Man Accuses Prosecutors of Misconduct, N.Y. TIMES, Feb. 17, 2011, at A26.

 

 

 

n172 See Sean Gardiner, Attorney Drops Attempt at Retry, WALL ST. J., June 10, 2010, at A25;Tom Robbins, A Jailhouse Lawyer Says a Top Brooklyn Prosecutor Rigged His Murder Conviction, VILLAGE VOICE, June 1, 2010, available at http://www.villagevoice.com/2010-06-01/columns/a-jailhouse-lawyer-says-a-top-brooklyn-prosecutor-rigged-his-mur-der-conviction/; A. G. Sulzberger, Murder Conviction Voided Over Prosecutor's Conduct, N.Y.TIMES, May 26, 2010, at A21; A.G. Sulzberger, Witness Issue Prompts a Hearing on Possible Misconduct by Prosecutors to Be Postponed, N.Y. TIMES, May 27, 2010, at A27.

 

 

 

n173 See A.G. Sulzberger, Facing Misconduct Claims, Brooklyn Prosecutor Agrees to Free Man Held 15 Years, N.Y. TIMES, June 9, 2010, at A18; see also Mark Fass, Judge Orders Inmate's Release, Blasts D.A.'s Lack of Remorse, N.Y. L.J., June 9, 2010, at 1.

 

 

 

n174 KINGS COUNTY DISTRICT ATTORNEY'S OFFICE: BUREAUS, UNITS & DIVISIONS, http://www.brooklynda.org/kcda-bur-units-divisions/kcda-bur-unit-div.htm (last visited Sept. 15, 2011) (listing Michael Vecchione as "Chief" of "Rackets Division," which "investigate[s] and prosecute[s] serious and complex crimes in the areas of organized crime, criminal misconduct by public officials and police officers, gang-related activity, major frauds, arson, narcotics and tax revenue crimes").

 

 

 

n175 Sulzberger, supra note 173, at A18.

 

 

 

n176 Supplemental Affidavit in Opposition Amended Petition for Writ of Habeas Corpus of Kevin Richardson at P 6, Collins v. Ercole, 08-CV-1359 (E.D.N.Y. filed May 7, 2010) (on file with author).

 

 

 

n177 Affirmation of Michael F. Vecchione at P 15, People v. Collins, No. 2884-94 (N.Y. Sup. Ct. Kings Co. dated Nov. 3, 2006) (on file with author).

 

 

 

n178 Transcript of Civil Cause for Hearing before the Honorable Dora L. Irizarry, United States Dist. Judge at 120, Collins v. Ercole, 08-CV-1359 (E.D.N.Y. dated June 8, 2010) (on file with author).

 

 

 

n179 Id. at 133.

 

 

 

n180 Sulzberger, supra note 173, at A18.

 

 

 

n181 Sean Gardiner, A Solitary Jailhouse Lawyer Argues His Way Out of Prison, WALL ST. J., Dec. 24, 2010, at A1.

 

 

 

n182 Complaint, supra note 171, at PP 437-523.