Image via CBS
In the fall of 2010, a rookie Brooklyn prosecutor was transferred to a low-level, out-of-court job after her bosses learned that she had spent a two-month leave of absence as a contestant on Donald Trump’s The Apprentice.
Jerry Schmetterer, a spokesman for Brooklyn District Attorney Charles Hynes, told E! News at the time that if the office had known she was going on the show, “we would not have approved it.”
“We didn’t think it was an appropriate program for a DA to be on,” he added, “It could create some conflicts in her work as a prosecutor.”
Fast forward a few years to this spring, and Hynes’ attitude about the ethics of his prosecutors appearing on reality TV—at least during an election year—had apparently changed.
On May 28th, less than four months before a hotly contested primary, in which New York City’s Democratic voters will choose the contenders for key city offices including the mayor (and in which Hynes will face off against two other candidates), CBS launched what it called a six-part “news series” about Hynes’ office.
The series, entitled Brooklyn DA, promised a “tough, candid look” at the office’s “hard-charging,” “eccentric” prosecutors, who have “larger-than-life personalities” and are “living right on the edge,” leading “lives that Hollywood loves to write about,” according to a CBS press release.
Putting aside the question of whether these are desirable traits in individuals who wield such extraordinary power over other peoples’ lives, the show, as it turned out, fizzled. The first three episodes garnered such low ratings that it was moved to a Saturday night slot to finish its run.
But the attempt to insert “Hollywood values” into the complex real-life working practices of a District Attorney’s office raises a number of troubling questions about the media’s role in the justice system—and whether, in particular, a powerful prosecutor might be tempted to exploit the opportunity to deflect attention from serious questions about the conduct of his staff.
One example in particular—featuring Michael Vecchione, Hynes’ top aide and chief of the office’s rackets division—is worth noting.
Vecchione, who narrated the show’s opening and appeared on camera throughout the series, was depicted as a seasoned mentor who counsels and, at times, consoles more junior prosecutors.
At one point in the first episode, Vecchione, after acknowledging that the implosion of a sex trafficking case because of problems with the witness’s credibility was a prosecutor’s “worst nightmare,” tells the camera that the office nonetheless had no choice but to dismiss the charges.
Later in the episode, a judge approvingly deemed this decision the “right thing” to do.
CBS’ highly sympathetic and prosecution-centric portrayal of the office in general—and Vecchione in particular—certainly fits the standard prosecutor-as-crusader-for-justice formula of so many legal procedurals (with Law & Order being a prime example).
But in doing so, it also leaves out almost any consideration of the ethical lapses, troubled prosecutions and wrongful convictions involving allegations of misconduct—some of it tied directly to Vecchione— that are dogging Hynes’ office.
Perhaps the most well-known wrongful conviction case to come out of Hynes’ office is that of Jabbar Collins, who was convicted by Vecchione and spent 16 years in jail for the murder of a Hasidic landlord he most certainly did not commit.
Collins’ conviction was vacated by federal judge Dora Irizarry in 2010, based on evidence Collins had gathered while in prison that appears to indicate that Vecchione had coerced witnesses to give false testimony and had failed to disclose to the defense witness recantations and deals in exchange for testimony.
Collins is suing the city for $150 million. His lawsuit argues that the conduct that led to his wrongful conviction was part of a larger pattern, and that Hynes’ office maintained what is tantamount to an “official” policy of violating defendants’ constitutional rights.
Indeed, at the time Collins’ conviction was vacated—with a promise by Hynes not to retry him—Irizarry expressed dismay that there was no indication from the DA that the office would “take steps to make sure this never happens again.”
Apparently her words fell on deaf ears.
“Michael Vecchione is not guilty of any misconduct,” Hynes said at the time, adding that he is a “very principled lawyer.”
Failure to Discipline
Last November, federal judge Frederic Block, who is presiding over the Collins lawsuit, said at a pre-trial hearing that he was “disturbed” and “puzzled” by Hynes’ failure to discipline Vecchione, and his decision to praise him instead.
"Hynes hasn't treated it seriously, has he?" Block asked a city lawyer, adding, "This was horrific behavior on the part of Vecchione."
Block added: "We are going to have a civil proceeding and all of this is going to be uncovered, I kid you not."
Vecchione was given a chance to address these allegations on the penultimate episode of the show, which ran after CBS was blasted in several news reports for appearing to whitewash the office’s problems (a New York Daily News op-ed by Dan Wise took CBS to task for helping to “rehabilitate’ Vecchione).
After a brief bio that included a walking tour of the Brooklyn neighborhood where he grew up and highlights from his long and often high-profile prosecutorial career, Vecchione addressed the allegations in the Collins lawsuit.
He called them “unfair” and “untrue” and added, “Never in my entire life have I crossed the line.”
Vecchione certainly has the right to defend himself, and the Collins case will be litigated in court, not in the press. Nonetheless, this brief segment was the only part of the 6-hour series that even touched on the allegations of incompetence and misconduct currently swirling around Hynes’ office.
Sex Trafficking Case
For example, about a year ago, a highly publicized sex trafficking case crumbled when it was revealed that prosecutors in Hynes’ office failed to turn over a police report noting the victim’s recantation—made one day after her allegation—while the accused languished in jail for 10 months. In the wake of the case’s dismissal, the lead prosecutor resigned amid a review of the office’s handing of the case.
One of the defendants, Darrell Dula, is suing the office.
In another case, a 65 year-old man named Ronald Bozeman spent nearly a year in jail on robbery charges until his attorney, Mark Bederow, finally wrested exculpatory information from prosecutors he had been requesting for months. The DA ended up dismissing the case. Bozeman recently sued New York City for $15 million.
And then there was the explosive two-part series on child sexual abuse in the Brooklyn Orthodox Jewish community that ran in the New York Times in early May of 2012.
Published after years of coverage in Jewish newspapers and on Jewish blogs, the Times stories detailed long-standing allegations that Hynes had failed to vigorously prosecute Orthodox child molesters or the rabbis and communal leaders who had for decades intimidated victims into not reporting abuse to the police.
As many news reports have noted, Brooklyn’s Orthodox Jewish community leaders, who are routinely able to deliver votes in a bloc, have been among Hynes’ strongest political supporters—although Hynes has denied he was influenced in any way by them.
The paper also took Hynes to task for not releasing names of members of the ultra-Orthodox community who had been arrested for or charged with sex crimes, and accused him of misrepresenting and inflating the number of arrests and prosecutions that had resulted from a confidential hotline the office established for Orthodox sex crimes victims in 2009.
Firestorm of Coverage
The Times stories touched off a firestorm of media coverage and prompted scathing editorials, with headlines like “Move over, Joe,” accusing Hynes of “selective justice.”
Even late New York Mayor Ed Koch chimed in, arguing that unless Hynes released the names of those accused and brought criminal charges against anyone obstructing justice by advising someone not to cooperate with the police, “the governor should supersede him…and appoint a special prosecutor.”
And in the past several months, two of the office’s convictions have been overturned, resulting in the release of men who spent more than 20 years behind bars. One was William Lopez, whose case was overturned on appeal by a federal judge who proclaimed it “rotten from day one.”
The judge also took the unusual step of blocking Hynes from retrying Lopez, though Hynes has said he will appeal the judge’s decision.
Lopez’ case didn’t make onto Brooklyn DA, but the case of David Ranta did.
Ranta was released in March of this year, after an investigation by Hynes’ recently formed Conviction Integrity Unit released him after he spent 23 years in jail for the murder of a Hasidic rabbi.
CBS hewed closely to the DA’s narrative regarding Ranta’s release, in which the CIU, after developing newly discovered evidence that the lead detective on the case coached or instructed witnesses to lie, did the right thing and freed Ranta.
What viewers didn’t learn, however, was that most of the issues Hynes cited to justify Ranta’s release had been raised—if not at Ranta’s trial than in the various appeals and motions Ranta filed while he was incarcerated — all of which were vigorously opposed by Hynes’s office and denied by the courts.
To be fair, it is typical in wrongful conviction cases for prosecutors to spend years denying defense motions and appeals and trying to preserve their convictions.
But an acknowledgment of this in the show would surely have complicated the story Hynes—and, on the surface more perplexingly, CBS—seemed to want to the public to hear.
Indeed, in May, before the series aired, Hynes challenger Abe George alleged that the show was nothing more than an “infomercial” for Hynes. He unsuccessfully sued to get an injunction against its broadcast until after the September 10th primary, arguing that it amounted to an illegal campaign contribution.
Despite George’s loss in court, other observers, after having seen the show, are making the same point.
“The show glamorizes the DA's office, and the assistants, at a time when the office is being heavily criticized by courts and commentators for numerous cases that reflect pervasive and shocking misconduct,” Bennett Gershman, a professor at Pace Law School and a leading expert on prosecutorial misconduct.
But the CBS connection raises some additional questions about the media’s role.
Brooklyn DA creator and supervising producer Patti Aronofsky has a long history of working with both Schmetterer and Vecchione.
Exhibit A is a case involving Brooklyn matrimonial judge Gerald Garson.
Garson was arrested and indicted in 2003, as part of a much ballyhooed—but ultimately unsuccessful—effort by Hynes to prove that Brooklyn judgeships were for sale. Garson had been targeted after a Brooklyn mother fighting her husband for custody went undercover and got evidence that, for a fee, certain lawyers could manipulate the outcomes of Garson’s divorce cases.
‘Chamber of Secrets’
In 2005 (also an election year), two years before the case went to trial, 48 Hours aired a show about it, also produced by Aronosfky, called “Chamber of Secrets.”
In one segment, Vecchione shows a fawning Leslie Stahl how investigators wired Garson’s office and portions of the surveillance tape are also shown—something one former Brooklyn prosecutor deemed “insane and showing horrible judgment,” given that the case had not yet gone to trial.
(Garson was acquitted on four counts but found guilty on one count of accepting bribes and two lesser charges of receiving rewards for official misconduct.)
In 2004, a 48 Hours crew covering a related case was blasted by a Brooklyn judge for violating a sound recording ban in his courtroom. While the crew had permission to shoot closing arguments, it also, according to reports, secretly miked the defendants’ tables and the jury box, infuriating the judge, who seized the tapes.
Aronofsky produced another story involving Hynes’ office in 2005, this time for 60 Minutes. The piece focused on the “Mafia Cops” case, in which the Brooklyn DA was working with the feds to bring a RICO case against the cops in the Eastern District.
Throughout the case, federal prosecutors had been concerned about press leaks from Hynes’ office, which had tried unsuccessfully to convince the feds to coordinate the cops’ arrest in Las Vegas with a 60 Minutes segment about the case.
The last straw came when the DA violated a directive from federal prosecutors to refrain from speaking to the media without first obtaining approval from the feds. Hynes’ office was thrown off the case.
These past collaborations with Hynes’ office were in part the subject of a hearing last month related to George’s suit. Affidavits, emails and testimony by Aronofsky and Brooklyn DA executive producer, Susan Zirinsky, revealed that both Schmetterer and Vecchione were directly involved in the development of Brooklyn DA and that Vecchione played an important role in helping the producers pick the cases on which the show would focus.
When asked whether she knew of the allegations against Vecchione at the time they were negotiating with him about the show—which happened to be right around the time Block made his comments—Zirinsky testified that she “knew there were issues. I don't really remember if I knew them specifically.”
Indeed, on Brooklyn DA, for the most part, the only bad things we heard about related to the defendants, including three whose cases have yet to be adjudicated—something lawyers and ethics experts believe should earn the prosecutors sanctions for violating professional conduct rules relating to pretrial publicity.
Those rules prohibit lawyers from making extra-judicial statements they know or reasonably should know will be disseminated by public communication and will have a substantial likelihood of prejudicing the jury, thus violating a defendant’s right to a fair trial.
When one lawyer, Gerald Shargel, learned that his client’s case would be featured on the show, he wrote a letter to the judge calling the prosecutors’ conduct in allowing this case to be part of the show “shocking.”
He suggested their conduct conflicted with both New York State and federal law related to pretrial publicity.
“These defendants cannot expect to receive a fair trial if the People provide the public—including prospective jurors and witnesses—with an ‘insider’s look’ at the prosecution’s side of the case, on network television,” Shargel wrote.
While he asked the court for an injunction against the broadcast of footage related to his client’s case, the issue became moot after the prosecutor, Lawrence Oh, informed Shargel that CBS had decided not to feature his case on its show.
Art Theft Case
Attorney Tim Parlatore’s client did not fare as well. Arraigned only about a week before the first episode of the show, Parlatore’s client, Joselito Vega, charged with art theft, was the subject of a hidden camera sting and referred to repeatedly as a “thief” and “fraudster” by prosecutors on the show.
Nobody at CBS reached out to Parlatore until after the first two episodes featuring his client were broadcast.
“They informed me that they were finishing the story on my client [in the third] episode,” Parlatore told The Crime Report.
“They told me that they intended to put in language at the end of the segment to the effect that my client has pled ‘not guilty’ and asked if I had anything to add regarding a possible defense,” he said.
“I explained to her that while my client maintains his innocence and does have a good explanation for everything that is seen on the video, I need to complete my investigation before going public with it.
“I would love to let the world know the other side of this story, but unlike the Brooklyn DA's office, I would prefer to finish my investigation to ensure accuracy before going on national television.”
“It's unfortunate,” Parlatore added, “because if they had waited until later in the case they would have had a much more interesting and balanced story.”
Parlatore says he is drafting a motion to dismiss the case for prosecutorial misconduct “based on Mr. Oh's actions in relation to the program” and believes the prosecutors “should be brought up on disciplinary charges.”
Gershman seems to agree.
“I have never seen anything even remotely approaching the CBS series on the Brooklyn DA,” he told The Crime Report. “It's unprecedented, and extremely disturbing, even shocking.”
He cited one episode in which a doctor is charged with manslaughter and criminally negligent homicide in the death of a woman on whom he performed liposuction. The episode contained harrowing interviews with the woman’s grieving family and forensic experts.
According to Gershman, “the Brooklyn prosecutors have engaged in serious ethical misconduct by making extrajudicial statements about the defendant and his crime that are inflammatory [and] exposing inflammatory and highly prejudicial forensic evidence and statements of a well-known expert.
“[They have contaminated] future jurors, [destroying] this defendant's right to a fair trial. It is inexcusable, and there should be sanctions imposed.”
The doctor’s attorney, James DiPietro, could not be reached for comment.
In her testimony at the hearing in the Abe George lawsuit, Susan Zirinsky said, "First and foremost… in no way did we want to affect a case. That was very important to us at CBS."
However, when asked for comment about CBS’s possible role in undermining the right to a fair trial of those defendants featured on the show, spokesman Richard Huff told the Crime Report that “As a practice, the team on Brooklyn DA doesn’t discuss its editorial process.”
As for the Brooklyn DA’s office, spokesman Jerry Schmetterer said, “We did not violate any ethical standards.”
Hella Winston has a Ph.D. in sociology and works as a freelance investigative journalist. She is currently a postdoctoral fellow at Johns Hopkins and a Senior Fellow at the Schuster Institute for Investigative Journalism. She welcomes comments from readers.