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The ‘Pinstriped Wall of Silence’

August 28, 2013 06:55:00 am
Comments (8)

By Robin L. Barton

When I was a young Assistant District Attorney in the Manhattan District Attorney’s Office, the so-called “Dirty 30” case broke. Twenty-nine cops and two sergeants from the 30th Precinct were arrested on corruption charges including theft and perjury.

It was a disturbing time in the office. All of our cases with the officers involved were pulled and reviewed. Like many of my colleagues, I was stunned by the allegations against officers whom I’d worked with, never suspecting that the information they gave me could be completely fabricated.

An especially troubling aspect for me was the blue wall of silence from other officers.

Yes, a critical element of our criminal justice system is the idea that the accused is innocent until proven guilty. But the overwhelming evidence against these officers didn’t paint a pretty picture.

And if they were, in fact, guilty, they were an embarrassment to the NYPD and all honorable officers.

The brass, including then-Commissioner William Bratton, publicly condemned the arrested officers. But on-the-street officers that I spoke to either had nothing to say about the cases or thought the officers were getting railroaded.

Their perspective was both confusing and upsetting to me.

I have a similar feeling now.

There seem to be  more and more reports of prosecutorial misconduct in the news these days.

For example, on Aug. 5, 2013, attorney Joel Rudin filed a lawsuit, asking the court to overturn Petros Bedi’s March 2000 conviction in Queens for murder,  for which he is serving 42 and a half years in jail.

The grounds for the lawsuit: prosecutorial misconduct. Specifically, a key prosecution witness testified that he wasn’t paid anything by the government. But he lied—and the prosecution knew it.

Documents recently obtained by Rudin revealed that the Queens District Attorney’s Office paid the witness more than $16,000 for hotel bills and another $3,000 in cash. The prosecutors never disclosed this information to Bedi’s lawyer at the time of the trial or turned over these documents.

And Bedi’s case is just one of several recent accusations of misconduct leveled at the Queen’s District Attorney’s Office.

But prosecutorial misconduct is hardly limited to New York City.

For example, a recent piece by Radley Balko in the Huffington Post details two cases of misconduct involving New Orleans prosecutors with references to others in California, Mississippi, Missouri and Texas.

The thrust of Balko’s excellent and detailed article is that prosecutors who have committed misconduct face few— if any— repercussions such as discipline, disbarment, or civil or criminal liability. (I won’t discuss that aspect of this issue as Balko does such a wonderful job exploring it.)

The misconduct involved in these cases goes against everything that I believe a prosecutor should epitomize, which is to be a champion of justice. And it undercuts the public’s already eroding faith in the criminal justice system.

I truly believe that these rogue or incompetent prosecutors are still a small percentage of the profession. Nonetheless, the apparent extent of prosecutorial misconduct is disturbing and can’t be ignored.

However, equally troubling to me is the lack of outrage by other prosecutors, who should be condemning this conduct and calling for reforms to prevent similar behavior, such as better training for young prosecutors on issues including Brady material.

It’s as if  there’s a pin-striped wall of silence.

Although several bar associations have spoken out against misconduct by prosecutors, organizations specifically for prosecutors have been largely silent in the face of what could be an epidemic of improper and unethical behavior. And when these groups do speak out, it’s to downplay the extent of the corruption or quibble about the use of the term “misconduct.”

For example, the National District Attorneys Association (NDAA) claims that one of its missions is to “foster and maintain the honor and integrity of the prosecuting attorneys of the United States.”

But the only official stand that the NDAA has taken with regards to “prosecutorial misconduct” is to object to the use of that term.

In 2010, the organization issued a resolution urging courts to use the term “error” instead of “misconduct.”

Really? That’s all that the oldest and largest professional organization representing prosecutors in the world has to say about conduct that undermines the honor and integrity of this profession?

To be fair, in the wake of the so-called Duke lacrosse scandal, which resulted in the disbarment of North Carolina district attorney Mike Nifong, the NDAA did release a statement affirming the “importance of the ethical standards of America’s prosecutors.”

The NDAA statement condemns intentional violations of these standards. But the statement, as a whole, is too soft in my opinion. The real thrust of it seems to be that prosecutors must make many difficult decisions every day, and that allegations such as the ones in the Duke case—“if true”—are aberrations.

Given the repeated reports of incidents of alleged prosecutorial misconduct across the country, it doesn’t appear that bad behavior by these public servants is an aberration.

Granted, it’s hardly uncommon for convicted defendants to claim misconduct by the government when, in fact, there was none. But where there’s smoke, there’s fire. And it seems like more of these claims are ultimately proving to be well founded.

Yet the NDAA has stayed silent.

If the NDAA is truly committed to maintaining the integrity of this segment of the legal profession, you’d think it would have something to say about the criticism by judges that the district attorney’s office in New Orleans has a culture that condones and even encourages misconduct. (For instance, Supreme Court Justice Ginsberg called the office’s inattention to Brady material requirements “standard operating procedure.”)

If the NDAA isn’t going to speak out against such systemic misconduct, when is the right time?  Did the association only bother to issue that statement about the Duke case because of the extensive media coverage?

I’d also like to see more individual prosecutors come out against misconduct. Three former prosecutors recently did.

In a May 2013 letter to the New York Times, former Manhattan District Attorney Robert M. Morgenthau chided the U.S. Supreme Court for failing to overturn William Kuenzel’s murder conviction and order a new trial despite the fact that prosecutors concealed exculpatory evidence.

Morgenthau was joined in his efforts to get justice for Kuenzel by Gil Garcetti, former Los Angeles District Attorney (and recently elected Los Angeles Mayor), and E. Michael McCann, former District Attorney of Milwaukee.

Cases such as Kuenzel’s should be calls to action. The charge against prosecutorial misconduct is being led by defense attorneys, exonerated defendants and civil rights groups. But it should be led by prosecutors seeking to purge what should be an honorable profession of its bad apples.

As Dante Alighieri said in Inferno, “The hottest places in hell are reserved for those who, in times of great moral crisis, maintain their neutrality.”


Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report.  She welcomes readers’ comments.

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Posted by Robin Barton
Monday, November 11, 2013 05:28

Some justice in Texas: http://www.nytimes.com/2012/11/13/opinion/nocera-a-texas-prosecutor-faces-justice.html?_r=0

Posted by Cheryl Trulove
Saturday, September 14, 2013 01:00

Thank you so much for posting this. Right now my son Is fighting 40 to Life on a Murder charge that he didn’t do. They found him guilty with just 1 witness and absolutely no evidence. Even the brother of the man that was killed came into the police station and told the cops that my son was not the murderer. What it was, was that the District Attorney was running for office and had made a statement about cleaning up the streets, and since my son had been seen on TV, and just happened to be in the area at the same time of the shooting, she used him as an scape goat. It didn’t matter that he was Innocent, my son was black and didn’t have a good Lawyer, so you guessed it. He got the Shaft.

Posted by LC in Texas
Saturday, September 07, 2013 08:28

Robin L. Barton, thank you so much for stepping up with your comments. Texas is really bad, especially in the small towns, the prosecutors and the judges rotate their “accountability” for the revenue that the court system produces. I have a question: I have never seen a BAR licensed attorney’s license – can you e-mail me a copy of one?

Thank you for your time,

Posted by Fernando Bermudez
Wednesday, September 04, 2013 10:48

Dear Robin,
Thanks for promoting greater integrity for American justice. I was proven actually innocent in 2009 after serving over 18 years in NY prisons due to police and prosecutorial misconduct in Manhattan — http://www.propublica.org/article/a-powerful-legal-tool-and-its-potential-for-abuse. To date, I still suffer anxiety, distrust, hyper vigilance and nightmares from what I saw and experienced in prison as an innocent man. I hope to heal one day as I strive to be a good father to my kids while lecturing at schools to prevent what happened to me from happening to others.
We need more articles like yours to help expose problems within our system and add more care and concern to right grave wrongs whose affects linger long after damage begins.

Posted by U.S. Magistrate Judge Collis White
Friday, August 30, 2013 11:53

Well said! I too am a proud former Manhattan ADA. Should you run into Mr. Morganthau, please give him my regards.

Posted by Andy Lyke
Friday, August 30, 2013 08:16

I have been intimately involved in a case in Lucas County Ohio in which the prosecutor deliberately overlooked the "disappearance of 125 tubfuls of psylocybin mushrooms between a growing house and the evidence room. They were probably reallocated to another growing site because police misconduct might have resulted in the mushrooms in question being disallowed as evidence. The evidence of the police misconduct was in the first few pages of the discovery package, as clear as day.
In the same case, the prosecution, who knew that the defendant was gainfully employed and had been for 20 years, lied in a pleading to seize the life savings of the defendant and his wife. “evidence found indicates that ### lacks gainful employment.” The court, of course, rubber stamped the request for seizure.
Unfortunately, this is only a small portion of the misconduct in this case. The mendacious letter from the NDAA et al flies in the face of this evidence. Unfortunately, the prison industrial judicial prosecutorial complex depends on the “war on drugs” for numerous jobs on ever increasing fear, arrests, trials and incarceration, and lacking these many many people, from defense attorneys to prosecutors to judges to prison guards would have to find productive employment.

Posted by Scott Burns
Thursday, August 29, 2013 11:18

Dear Ms. Barton,

The National District Attorneys Association, the National Association of Attorneys General and the American Bar Association all agree that the term “prosecutorial misconduct” is widely misused. The issue is that there is a difference between error and misconduct and after reading this article I don’t believe you understand that. Every time a judge is overruled, it is referred to as judicial error, not judicial misconduct (unless it really is, which is rare). Prosecutors are asking for the same courtesy. “Prosecutorial misconduct” is the current cause célèbre of viscerally anti law enforcement groups, but the reality is real misconduct is exceedingly rare. Almost all prosecutors understand they are ministers of justice, and as such – compared to the rest of the legal profession whose standard is “my client right or wrong” – have set the standards for legal integrity. The reality is that some 40,000 state and local prosecutors go to work every day and strive to do individual justice in each case — which often includes exonerating the innocent — and while our system is not perfect, to refer to a handfull of cases where the system did not work is unfair, in my opinion, to the women and men that work so hard to hold the guilty accountable, exonerate the innocent and help victims of crime put their lives back together. As a former prosecutor, I would bet that at one time or another you erred (we all do, it is human), but I doubt that you engaged in “misconduct”.

Posted by Fran Buntman
Thursday, August 29, 2013 10:00

Thank you for this important op-ed. I look forward to reading the R. Balko piece. I think your statement regarding “bad applies” begs the question as to what extent these problems are about individuals and to what extent they are about institutional cultures and failed leadership. Your article suggests cultures of at least arrogance in certain prosecutorial offices, and often outright illegality. Every semester I have my students watch Phil Zimbardo’s TED talk (see http://www.ted.com/talks/philip_zimbardo_on_the_psychology_of_evil.html) where he points out that the bad apple is often ‘bad’ because of the bad barrel or the bad barrel makers. Your own fine article suggest the problem lies in systematic rather than merely individual failures.

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