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Wrongful Convictions: Can Prosecutors Reform Themselves?

March 27, 2014 08:08:40 am

By Hella Winston

Brooklyn District Attorney Kenneth Thompson, who has pledged to review questionable convictions. (Image via Wikipedia)

In October 2003, a star college football player named Mark Fisher was found shot dead on a leafy, residential Brooklyn, NY street. The crime attracted intense media coverage and stymied investigators for months.

Indeed, according to a 2005 New York Daily News article, it wasn’t until an “elite team” was set up to investigate the killing, headed by then Brooklyn district attorney Charles Hynes’ controversial top deputy, Michael Vecchione— that prosecutors were able to break what was termed the “wall of silence” and solve the case.

Ultimately, 22 year-old John Giuca and 19 year-old Antonio Russo were arrested and charged with Fisher’s murder. At trial, both Giuca and Russo were found guilty and sentenced to 25 years to life.

At the time, the convictions represented an important victory for both Hynes (who was then running for reelection in a hotly contested race) and the lead prosecutor, Anna-Sigga Nicolazzi, who in its wake appeared on at least two TV specials about the case and has since made a name for herself appearing as a legal commentator on Fox News and Imus in the Morning.

From the beginning, however, Giuca maintained his innocence.

After he was convicted, his mother, Doreen Giuliano, befriended a man who had been a juror in her son’s trial, and then documented, in secretly recorded conversations, that the juror had undisclosed connections to the case and a bias against her son that should have disqualified him from serving on the jury.

These discoveries became the basis of several appeals in which Giuca argued that, because the juror failed to disclose his connections to people involved in the case, he did not receive a fair trial.

All of these appeals failed, however, and until recently it looked as if Giuca would likely serve out his sentence.

Prosecutorial Misconduct?

But over the past year, Giuca’s new lawyer, Mark Bederow, with assistance from Jay Salpeter, an ex-cop-turned-private investigator with a specialty in wrongful convictions, has uncovered what Bederow alleges is compelling evidence of improper conduct by Nicolazzi, the prosecutor.

The alleged misconduct included a failure to disclose—as required by law—any benefit or expectation of a benefit given to a witness, as well as vouching for that same witness’s perjured testimony.

Bederow and Salpeter have also obtained sworn recantations from three prosecution witnesses, two of whom say they were pressured by police and Nicolazzi into making false statements at trial.

Two other witnesses appear to have withheld information from investigators and/or changed their stories multiple times, and both have troubling connections to Hynes: one is the son of a woman who was a member of the executive committee of the Brooklyn GOP, who crossed party lines in 2005 to endorse Hynes for DA (and who allegedly gave her son a false alibi to the press and told a neighbor to stonewall cops by avoiding mentioning her son).

The other is the daughter of a Hynes donor who, since 2012, has been working as an Assistant District Attorney in the Brooklyn DA’s office.

Bederow submitted a petition to the Conviction Review Unit (CRU) of the office of the newly elected Brooklyn DA, Ken Thompson, who made the issue of wrongful convictions one of the centerpieces of his successful campaign last Fall.

Conviction Review Units (also known as Conviction Integrity Units or Post-Conviction Review Sections) are a relatively new phenomenon. The first ones were established by DA Craig Watkins in Dallas in 2007 and by former Harris County, Texas DA Pat Lykos in 2008.

They have begun to crop up in DA’s offices in other parts of the country as well, including: Cook County, IL; Santa Clara, CA; Wayne, MI; and Brooklyn and Manhattan in New York City.

In general, they involve the implementation of what are known as both “front-end” and “back-end” reforms—measures to reduce the risk of wrongful convictions before a case goes to trial and a process to investigate claims of actual innocence after a conviction, respectively.

(Thompson’s office declined to comment on the substance of Bederow’s petition, citing the pending review, but did tell the Daily News that “Anna-Sigga Nicolazzi is a respected and outstanding prosecutor who has an exemplary trial record.”)

Investigating ‘Gross Violations’

While many of the details about how Thompson’s CRU will operate have not yet been made public, a February press release from the office notes that it will consist of “experienced prosecutors, investigators and support staff tasked with the responsibility of conducting a thorough reinvestigation of cases identified as having a colorable claim of actual innocence or gross violations of a defendant’s constitutional rights.”

Thompson also appointed an outside panel of three lawyers to “advise on a range of issues, including whether a conviction should stand, needs additional review or should possibly be overturned.”

Drawing on comments Thompson made during his campaign, Bederow told The Crime Report that, considering Thompson’s pledge to make the review of questionable convictions obtained under the prior administration a priority, “we believe it is in everyone’s interest, including Mr. Giuca’s, to work with the new DA and allow his staff to conduct a careful and thorough review of the investigation and trial, including the evidence we have uncovered, before resorting to adversarial proceedings.” 

But is it?

While Conviction Integrity Units can play an important role in implementing much needed “front-end” reforms—including enhanced training, better discovery-related policies and procedures, the use of videotaped confessions and improved practices related to eyewitness identification—their value in evaluating post-conviction claims of innocence is much more questionable, particularly in cases that don’t involve DNA.

Indeed, lawyers with experience working with CIUs point not only to their criteria for re-evaluating a case, but also to their structure and staffing, as major obstacles to their ability to function effectively.

Although these various units are all involved in reviewing possible wrongful convictions emanating from their own offices, they differ in terms of their criteria for post-conviction review.

Standards for Review

While Dallas, Manhattan and Santa Clara all hold as their standard of review whether there is clear and convincing evidence for a plausible claim of actual innocence, the Dallas CIU has noted that it would relax this standard if a post-conviction investigation uncovered “glaring constitutional errors ” at trial, even if those errors did not clearly relate to guilt or innocence—a standard that seems consistent with Thompson’s proposed plan to look at “gross violations” of a defendant’s constitutional rights.

Moreover, unlike Dallas, Manhattan will not reinvestigate a case if a defendant knew or should have known at trial the basis for his current claim—a standard that can, in effect, punish the defense for what is often the failure of prosecutors to turn over certain material to them, or for ineffective assistance of counsel.

Some CIUs will not look at cases in which a defendant pleads guilty, regardless of research that shows that coerced or false confessions are a common cause of wrongful convictions.

Perhaps even more important, there is no uniformity in how these units are structured and operate. For example, while the Dallas CIU—which is headed by a highly regarded former defense attorney—works in collaboration with defense attorneys, local innocence projects and law students, the Manhattan CIU, with a prosecutor at its helm, conducts all of its post-conviction reviews internally.

To veteran defense attorney Ron Kuby, who has worked with DA Conviction Integrity Units in Manhattan, Brooklyn and Nassau County, the Dallas model is far superior.

“Number one, [in Dallas there is] complete transparency,” Kuby told The Crime Report.

“Both sides share all of their information. We get everything in their file, they get everything in our file, except certain privileged communications. And second, the investigation is undertaken in a collaborative way.

“We sit down together and we discuss witnesses. And we discuss…what would be the best side to approach this witness. Should we do it together? Should the defense pursue this witness because frequently the defense is able to win trust where the police don’t, or should the police pursue this particular witness?”

Going to Court

After representing witnesses in a case that was brought to the Manhattan CIU, Kuby decided that he would never bring a case to that office again. In fact, he has concluded that, whenever possible, going to court is the preferable route because in that arena, armed with subpoena power, “it’s easier [for the defense] to convince a judge that a result would have been different at trial than to convince a prosecutor.”

According to Kuby, “[Prosecutors] look for evidence to support the conviction. And defense lawyers who are foolish enough to cooperate with them end up serving up their witnesses, and [then the DA goes out and collects impeachment information] on [those] witnesses.

“The truth is, the hallmark of great lawyering is making a totally truthful person look like a liar.”

Lonnie Soury, a public relations expert who has worked on numerous wrongful conviction cases, including those of Martin Tankleff, The West Memphis Three, Jesse Friedman and Jon-Adrian Velazquez, agrees.

"There's an underlying hope that prosecutors, when exposed to what you believe is strong evidence will say ‘ah ha, this is really compelling.’”

But, according to Soury, this has not been the reaction in the cases he has worked on.

In the case of Velazquez, whose murder conviction was recently reviewed and upheld by the Manhattan DA’s CIU, Soury noted that “[the process] was adversarial.”

“[Defense attorney] Bob Gottlieb turned over witnesses to whom the real killer confessed,” Soury continued. “They exposed themselves, these witnesses came to New York, and they were treated horribly, like defendants. These were witnesses who had a lot to lose. They knew the murderer.” Gottlieb has since filed a 440.10 motion, or a motion to vacate the conviction based on newly discovered evidence.)

Gottlieb, who was appointed in 2008 to the New York State Bar Association’s Task Force on Wrongful Convictions, concedes that the concept of a DA remedying wrongful convictions is “noble”—but he adds there is an “inherent conflict in having an integrity unit in a DA’s office and staffed by prosecutors who are involved in other investigations, in cases, other than examining prior convictions.”

In the Velazquez case, where there was no DNA or physical evidence that could be re-examined, Gottlieb was, he believed, at a significant disadvantage with the CIU. (At least until now: according to Gottlieb, recent scientific advances suggest that some evidence in the case can be tested, something he is now pursuing),

Eyewitness ID

This “conviction was based solely, one hundred percent, on faulty eyewitness (identification) and it has been established by scientific studies that eyewitness ID is inherently suspect, and that conviction is as inherently invalid as the convictions that were based on faulty evaluations of DNA,” Gottlieb told The Crime Report.

However, he continued, “the reality is that it is…impossible to prevail in those cases where the claim is that a person is wrongly convicted based on eyewitness ID, a faulty line-up, (or) perjured testimony, because there is an institutional bias that exists under the present structure, and cannot be overcome, to protect and defend prior convictions.”

To be sure, these units have been instrumental in righting some very serious wrongs.

A recent report found that close to 40 percent of exonerations in 2013 were initiated either by law enforcement or included police and prosecutors’ cooperation. To date, Watkins’ CIU in Dallas has been involved in 33 exonerations. The current Santa Clara, CIU has investigated and exonerated five people, including a man who was serving a life sentence; and another who had served 8 years in prison for a rape he did not commit.

The Manhattan DA’s office has reviewed approximately 140 cases since its formation in 2010, reinvestigated at least 12 of the cases and consented to vacate convictions in three of those cases.

And last year, an investigation by Hynes’ CRU in Brooklyn led to the release of a man named David Ranta, who had served 23 years for a murder that he most likely did not commit.

(Hynes’ office stopped short of declaring Ranta factually innocent, but said instead that the evidence against him had eroded significantly, blaming a retired, “rogue” detective for much of that “erosion.”)

But even the most committed district attorney still has to contend with the fact that the cases that come to his or her office’s CIU or CRU may well involve people who are still employed by the office, or police officers and even judges with whom the office has important relationships it needs to maintain.

For example, in the Giuca case, Thompson will be in the difficult position of investigating allegations against a highly regarded prosecutor (albeit one who was hired by the previous administration) currently working in his office. And he will also have the unenviable task of re-interviewing another current employee who is a factual witness in the case and who, records show, was uncooperative with the initial investigation.

Independent Review

Indeed, in a Huffington Post article he wrote during the campaign, Thompson himself noted that “Internal conviction integrity units are best used to correct mistakes such as eyewitness misidentifications and false confessions. But…wrongful conviction cases premised on serious allegations of police and prosecutorial misconduct require independent review.”

As Kuby notes, “Prosecutors have friends, colleagues” and “even if they have the utmost integrity,” this cannot help but play a role in these reviews.

“If a DA is really serious and committed to having a CIU,” said Gottlieb. “then (the CIU) must be staffed with an inspector general-type prosecutor who has no connection to the past procedures and trials that are the subject of the conviction review.

“That person must be totally separate and apart, with his or her own staff and offices. Members of the CIU (also) cannot include the chief assistant DA or any of the executive staff of the DA’s office. It must truly be an independent entity.

“If you're not prepared to do that, then you really can’t claim that you have an independent unit to evaluate past convictions.”

Kuby believes there is an even bigger problem with a DA evaluating wrongful convictions emanating from his office: overturning too many convictions, even if the evidence requires it, can also raise serious issues not only for prosecutors, but for the system as a whole.

“Outside of incapacitating highly dangerous people, the criminal justice system seeks to create a sense of legitimacy in the minds of the public and to provide deterrence to wrongdoers,” Kuby said.

“It doesn’t much matter if people are guilty or innocent, if people think they are guilty. But whenever you expose a wrongdoing, you undermine the legitimacy of the system.”

That’s why people like Soury believe that the task of reviewing wrongful convictions should not be left to prosecutors, but given to an independent and independently funded entity set up for the purpose.

“We have had far too many wrongful convictions in New York City,” says Soury. “(We) need a [truly independent] official body that can present solutions as well as have investigative responsibilities and subpoena power to review cases where credible evidence exists of a wrongful conviction and prosecutor and /or police complicity.”

But Soury goes a step further, suggesting that the best way to address the problem of wrongful convictions is to “hold public officials who engage in these activities legally responsible: criminally and civilly”— something that almost never happens, because prosecutors and police have close to global immunity for actions undertaken in their law enforcement roles.

As Soury notes, “Prosecutors are virtually omnipotent and protected from any consequences of their actions.”

Editors Note: For additional reporting on wrongful convictions, please see David Krajicek, "When 'Mob Journalism' Helps Convict the Innocent", published in TCR Feb 18, 2014.

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.

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