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.