Thursday, May 3, 2007

The Advocate
Richard Blassberg

Epidemic of Prosecutorial Misconduct
Urgently Demands Legislation

Last week brought a significant achievement in the effort to bring real justice to the Criminal Justice system throughout the United States, with the announced exoneration of Jerry Miller, believed to be the 200th wrongly convicted, and incarcerated, innocent individual cleared by DNA evidence since the first known reversal in 1989.

Unlike Jeffrey Deskovic, well-known to Guardian readers, who was in his sixteenth year behind bars, when freed through the efforts of the Innocence Project, Miller had already been paroled, having served 25 years, prior
to his recent exoneration by DNA evidence. What has many observers concerned is the fact that the first 100 cases took thirteen years, but only five more years to double the figure.

In fact, those numbers should not really be all that surprising given the fact that the technology obviously was not distributed everywhere, equally, all at once, and the rules of criminal procedure, not to mention court backlogs and protocols, vary from state to state, and between jurisdictions within each state, exclusive of the federal system. Those of us who have been involved with criminal justice for some time know very well that there have been many more cases of wrongful prosecution and conviction, even over the last fifty years, than we can ever hope to uncover and rectify. In fact, it is no overstatement to estimate that fully 30%, or more, of those who have gone to prison since 1957, were not guilty of the crime for which they were convicted.

Such is the reality of jurisdictions in which 97% of all felony indictments are disposed of by plea-bargain. One must understand that it is logical to assume that where a defendant can easily avoid as much as 75-90% of the prison time he is facing, if convicted after trial, by merely “copping a plea,” and yet insists upon his innocence, and is willing to incur the risk, and the expense, of going to trial, there is, at least a fair chance that he is, in fact, innocent. But, on the other hand, given the attractiveness of avoiding a possible 20, or 25-year sentence, many innocentindividuals, particularly those without significant resources, will take a “generous” plea deal, offering 1 ½ to 3 years, or possibly even probation. Many innocent individuals reside in state and federal prisons because they took that option.

Unfortunately, plea-bargaining has degenerated over the years to where it has become more like an addiction than a remedy for overcrowded calendars and overextended prosecutorial caseloads. And, while, in the purest sense, the Constitutional sense, it has become a device amongst many in the contemporary prosecutor’s
bag of tricks, it is the single most subversive factor in the “Criminal Justice Equation.” Prosecutors, for the most part, ignore half of their sworn mandate, the half which calls for “protection of the innocent,” preferring, instead, merely to “prosecute the guilty,” whomever they say is guilty. All too often it becomes a contest, a test of wills, and certainly not a “search for the truth.” What’s Justice got to do with it anyway?

Of course, it varies from jurisdiction to jurisdiction, but few district attorneys, and fewer United States Attorneys, are heard exclaiming that their investigation revealed the fact that an individual charged by police was, in fact, innocent.

That’s simply not what prosecutors believe the voting public wants to hear, ever. There’s just far too much politics and money tied up in the criminal justice system at every level. Hence, prosecutorial misconduct is not merely commonplace, but rampant and pervasive.

The Westchester District Attorney’s Office, in 1990, under Carl Vergari, had no compunction about sending a sixteen-year-old boy, Jeffrey Deskovic, to prison for 15-Years-To-Life for Rape and Murder despite the fact that his DNA and hair follicles did not match those found in, and on, the body of a 15-year-old schoolmate.
ADA George Bolen, arrogant, insensitive, but insulated, creature that he was, merely told the jury that Angela Correa, 15, a Peeksill High School student, had simply, “had consensual sex with someone else prior to her rape and murder.” Was there even any attempt, ever, to identify the “consensual partner?” Of course not.

That was the very worst kind of prosecutorial misconduct, because not only did it send a totally innocent boy of sixteen to prison for the next sixteen years of his life, but also it left Steven Cunningham, the actual perpetrator, at large in the Peekskill community where he once again killed another young woman little more than three years later. That same office, in 1994, this time under Jeanine Pirro, would turn a brutal stabbing and homicide in the City of Yonkers, into a 13-year lie and confabulation simply to satisfy the personal political needs of a very
sick, psychopathic, prosecutor, despite the fact that she had a confession from the actual killer just six days after the incident.

To achieve her evil, and clearly criminal, ends Pirro, and numerous assistant district attorneys, medical examiners, police, forensic experts, and even a judge, who just happened to be dating Pirro’s mother, all conspired to keep more than 376 pages, and 52 boxes of exculpatory information and exhibits, Brady material, from the Defense for more than thirteen years. Again, arrogance, no fear of legal reprisal or personal consequences, combined with a total disregard for Constitutional Rights, produced a seven-year prison stay for the innocent accused, as well
as prison sentences for other, unrelated, trumped-up offenses, prosecuted against witnesses who refused to lie about the original brutal stabbing.

It is difficult enough to accept the fact that 200 exonerations hardly represent even the tip of an enormous iceberg, given that honest, good faith mistakes can be made by the most well intentioned prosecutor. However, realizing the reality that in the vast majority of state and federal prosecutions intentional violations occur in the name of “winning by any means necessary,” the need for serious measures to stem the tide, indeed the epidemic, of malicious prosecutions, is all to evident.

What is needed here in New York State, and perhaps in most states, is serious legislation which will accomplish three essential goals:

First, a permanent commission must be established to make legislative recommendations, as well as overseeing their enactment and execution.

Second, legislation must be enacted that establishes financial, and incarcerative penalties for prosecutors who engage in malicious, and intentional, prosecutorial misconduct, calculated to deny defendants their Constitutional Rights.

Third, serious revisions must be made to the Code of Criminal Procedure, taking into account technological advancements, and social changes over the last fifty years, in an effort to level the playing field and enhance the
possibility of Constitutionally correct prosecution and the application of Due Process.

2 comments:

Anonymous said...

BEWARE OF UNETHICAL ATTORNEY DENIS J. TIMONE

Dear Mr. Casella:

Referencing your letter of October 6, 2005 requesting specific factual information pertaining to the above referenced Complaint, Complainant states as follows:
BACKGROUND
That from September 1, 2001 Complainant and his family took up residence at Four Ward Street, Brewster, N.Y. 10580, a convertible three bedroom single family home and premises upon information and belief owned by Joseph A. Luciano (“Luciano”), as lessees under a one year lease expiring on August 31, 2002.
That on or about May 2003, Luciano offered Complainant a new one year lease from September 1, 2002 to August 31, 2003 (“Lease”), that at this time contained a paragraph nine (9) to a rider to the Lease, at the discretion of lessee, “Tenant has first option for a new lease on unit (‘Option Clause’)” and that at this time contained a holdover period of six months (i.e., Complainant’s authorized occupancy, when he exercised the unilateral option on September 1, 2003, extends to March 1, 2005).
That Complainant suffered the loss of his then 38 year old wife to breast cancer in December 2003 and was left with providing sole parental support for a then seventeen month old baby boy (“Baby Stephen”).
That, in or about May 2004, Complainant and Luciano entered into a dispute surrounding Complainant’s contracting for an Au Pair that would reside in the convertible third bedroom to care for Baby Stephen so that Complainant may resume his career and provide support for Baby Stephen.
1. That Respondent violated DR 1-103 [NYCRR §1200.4] Disclosure of Information to Authorities in that Respondent possessed knowledge, (1) not protected as a confidence or secret, or (2) not gained in the lawyer’s capacity as a member of a bona fide lawyer assistance or similar program or committee, of a violation of DR 1-102 [NYCRR 1200.3] that raises a substantial question as to another lawyer’s, Albert A. Capellini’s, honesty, trustworthiness or fitness as a lawyer and failed to report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.
That Complainant, a recent widower providing the sole parental support for Baby Stephen, continued his occupancy pursuant to the Lease and was served with a Petition – Hold Over Dwelling by Respondent, who upon information and belief was briefed and counseled by Albert A. Capellini (“Capellini”) without Respondent or Capellini even considering prior case law and controlling authority (see case law and authority below) in determining the effect of the Option Clause on the Lease.
2. That Respondent violated DR 7-102 [NYCRR §1200.33] Representing a Client Within the Bounds of the Law in the representation of Joseph A. Luciano (”Luciano”) wherein Respondent:
a. Asserted a position on behalf of Luciano when Respondent knew or when it was obvious that such action would serve merely to constitute the abuse of process against Complainant;
That Respondent, in a Notice to Quit Premises letter (“2nd Notice”) dated June 21, 2004 feinting a month to month tenancy and advising of the termination of the feinted month to month tenancy while threatening a holdover proceeding for immediate eviction and upon information and belief drafted by Respondent and caused to be disseminated by Respondent, failed to even consider, inter alia, Rausch’s Landlord and Tenant, page 473, § 11:2 that states “[W]here a tenant is given a right to renew the lease in general terms…the terms and conditions of the original lease are definite, and those terms and conditions govern the renewal term by implication,” in determining its effect of the Option Clause on the Lease; at this time, Complainant’s, a recent widower and the sole means of sole parental support for Baby Stephen, authorized use of the premises had more than 8 months until expiration.
That Respondent, in a Petition – Holdover Dwelling (“Petition”) dated August 25, 2004 feinting expiration of the Lease and expiration of the holdover period, failed to even consider, inter alia, Clark v. Caldwell 521 N.Y.S. 2d 851, 132 A.D. 2nd 171, that held, “an option is an absolute and unconditional promise to sell [in this case lease] at a certain determinable price within a period of time and is a unilateral contract that optionee completes by accepting,” in determining its effect of the Option Clause on the Lease; at this time, Complainant’s, a recent widower and the sole means of sole parental support for Baby Stephen, authorized use of the premises had more than 6 months until expiration.
b. Knowingly committed the abuse of process by advancing a position unwarranted under existing law, and without a good faith argument for an extension, modification, or reversal of existing law;
That Respondent, in a Petition – Holdover Dwelling (“Petition”) dated August 25, 2004 feinting expiration of the Lease and expiration of the holdover period, failed to even consider, inter alia, Clark v. Caldwell 521 N.Y.S. 2d 851, 132 A.D. 2nd 171, that held, “an option is an absolute and unconditional promise to sell [in this case lease] at a certain determinable price within a period of time and is a unilateral contract that optionee completes by accepting,” in determining its effect of the Option Clause on the Lease; at this time, Complainant’s, a recent widower and the sole means of sole parental support for Baby Stephen, authorized use of the premises had more than 6 months until expiration.
That Respondent in the Petition failed to even consider, inter alia, Rausch’s Landlord and Tenant, page 473, § 11:2 that states “[W]here a tenant is given a right to renew the lease in general terms…the terms and conditions of the original lease are definite, and those terms and conditions govern the renewal term by implication,” in determining its effect of the Option Clause on the Lease; at this time, Complainant’s, a recent widower and the sole means of sole parental support for Baby Stephen, authorized use of the premises had more than 6 months until expiration.
c. Concealed or knowingly fail to disclose that which Respondent is required by law to reveal;
That by failing to avail himself of prior case law and controlling authority in determining the effect of the Option Clause on the Lease, Respondent concealed or knowingly failed to disclose that which Respondent is required by law to reveal, the citings adverse to the position of Luciano
d. Knowingly made a false statement of fact;
That by failing to avail himself of prior case law and controlling authority in determining the effect of the Option Clause on the Lease, Respondent’s feints of expiration of the Lease and expiration of the holdover period in the Petition, Respondent knowingly made false statements of fact, when considering the citings adverse to the position of Luciano
That, moreover, throughout the proceedings of the Petition, Respondent traversed from tall tales of “hold over without authorization of Luciano” to, upon information and belief, “no, it’s not hold over, we just want to renovate and sell the property,” to finally admitting the fact that the now frivolous proceedings brought by Respondent concerned a question of law – the meaning of “Tenant has first option for a new lease on unit.”
e. Counseled and assisted Luciano in conduct that the Respondent knew to be illegal, the abuse of process against Complainant;
That by failing to avail himself of prior case law and controlling authority in determining the effect of the Option Clause on the Lease, Respondent’s feints of expiration of the Lease and expiration of the holdover period in the Petition to, upon information and belief, “no, it’s not hold over, we just want to renovate and sell the property,” to finally admitting the fact that the now frivolous proceedings brought by Respondent concerned a question of law – the meaning of “Tenant has first option for a new lease on unit,” Respondent knowingly conducted himself in a fraudulent manner, when considering the citings adverse to the position of Luciano.
f. Knowingly engaged in other illegal conduct or conduct contrary to a Disciplinary Rule;
See 3 and 4 below.
3. That Respondent violated DR 7-104 [NYCRR §1200.35] Communicating with Represented and Unrepresented Parties in that during the course of the representation of Luciano, Respondent:
g. Gave advice to Complainant, who was not represented by a lawyer.
That at the commencement of the proceedings of the Petition, Complainant filed a Motion for Continuance to Answer and Retain Counsel. That, moreover, when not represented by counsel, Respondent “button-holed” Complainant outside the courthouse before the Motion hearing and advised that “it is in your best interest to pay the month of August 2004 rent since returned to you, or else I will tell the Judge to proceed,” or words to that effect. That, furthermore, not represented by counsel, Complainant paid the August 2004 rent as a result of the threat of Respondent, an act which severely jeopardized the case of Complainant and forced him into an out of court settlement of the proceedings.
4. That Respondent violated DR 7-106 [NYCRR §1200.37] Trial Conduct in that Respondent:
a. Failed to disclose controlling legal authority known to Respondent to be directly adverse to the position of Luciano in Respondent’s abuse of process;
That by failing to avail himself of prior case law and controlling authority in determining the effect of the Option Clause on the Lease, Respondent concealed or knowingly failed to disclose that which Respondent is required by law to reveal, the citings adverse to the position of Luciano.
b. Stated or alluded to any matter that Respondent had no reasonable basis to believe that such statement will not be supported by admissible evidence in Respondent’s abuse of process.
That by failing to avail himself of prior case law and controlling authority in determining the effect of the Option Clause on the Lease, Respondent’s feints of expiration of the Lease and expiration of the holdover period in the Petition to, upon information and belief, “no, it’s not hold over, we just want to renovate and sell the property,” to finally admitting the fact that the now frivolous proceedings brought by Respondent concerned a question of law – the meaning of “Tenant has first option for a new lease on unit,” Respondent knowingly conducted himself in a fraudulent manner, when considering the citings adverse to the position of Luciano.

In summary, Mr. Casella, the strong-armed tactics, in diametric opposition to current case law and controlling authority, of Respondent as well as his self-aggrandizement as a “big fish in a small pond” serve as a mockery to the profession. Wherefore, Complainant, who has no professional or personal experience in “small ponds,” demands discipline, whether by admonishment, reprimand, suspension, resignation, or disbarment, against Respondent.

The Westchester Guardian Newspaper said...

To the past commentor:

You can send this comment via email to: editor@westchesterguardian.com

Thanks again for reading the site.

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