Westchester Guardian/Jeff Deskovic.

Jeff Deskovic

Legislation To Deal With Out-Of-
Control Prosecutors Urgently Needed

The job of a prosecutor, be it an elected District Attorney, or an Assistant DA, is a position that carries a great deal of power. After all, the decisions that they make impact upon people’s lives every day. It is a prosecutor who, in theory, though rarely, in reality, in Westchester
County, is supposed to be the first level of scrutiny that a case receives when presented by the police or civilian complainant. They must decide whether or not to proceed, based upon the apparent credibility of the complaint.

A prosecutor decides the level of crime that should be charged based upon the facts presented. Although the grand jury is supposed to be an independent body, in reality the prosecutor controls it. The old expression, “You can indict a ham sandwich,” is based upon this sad reality. It is the prosecutor who decides the nature of the plea bargain agreement to be extended to a defendant. Many judges are former prosecutors,
and thus are often inclined to go along with prosecutors’ recommendations regarding bail and sentencing.

As officers of the court, as public servants, it is supposed to be their job to take most seriously the trust placed in them and to see that justice is served. In plain language, that not only means working to convict the guilty, but also to exonerate the innocent, and to go about
the job of convicting the people they believe are guilty while staying within the boundaries of the law. In day to day terms, that means fulfilling their obligation to turn material over to the Defense that could be helpful to its case, and not to argue against defense objections or
motions they know to be meritorious.

History has shown, however, that there are some rogue prosecutors, many more than the general public might assume, who not only do not observe these Constitutionally-guaranteed principles, but who do not hesitate to violate rules and procedures in their all-out effort to win at all costs. For far too many prosecutors, winning is not everything, it’s the only thing.

There are different motivations for engaging in prosecutorial misconduct. Sometimes a prosecutor gets caught up in his or her zeal to ‘get the bad guy’. This is an unacceptable mindset. First of all, because, it is clearly hypocritical to be breaking the law in order to punish someone
who has allegedly broken it. Secondly, it makes the subsequent legal proceedings unreliable, with the result that innocent people are wrongfully convicted. At times, however, it is not that they are caught up in trying to convict someone who is actually innocent, it is that
they are purposely prosecuting someone who they know to be innocent. Shocking as it may seem, it is nonetheless true, and happens all too frequently. How else does one explain cases in which prosecutors have clear evidence of the innocence of a defendant and/or proof of the
real perpetrator but nonetheless continue to prosecute the innocent defendant full steam ahead. Regardless of the motivation, operating with such a mindset carries with it a terrible price: the strong possibility of convicting somebody who is innocent and the attendant perversion
of justice.

Legislation is urgently needed, particularly at the federal level, but at the state level as well, involving both incarcerative as well as financial penalties, that will serve as a deterrent to those rogue prosecutors who, regardless of their motivation, would be willing to either break
the law to win or to assist such efforts.

History has shown that mere morality alone is not enough to restrain someone from becoming a rogue prosecutor. It is outrageous that in any other walk of life, someone who breaks the law risks going to prison. e mere fact that someone makes their living as a prosecutor should in no way exempt them. If anything, they ought to be even more morally accountable because of the enormous power and public trust that they betray. It should be a crime when prosecutors intentionally withhold evidence of innocence; Brady or Rosario material, suborn perjury, permit witnesses to lie in court. Likewise, when working with experts, coroners, or other law enforcement personnel, it should be a crime similarly punishable when prosecutors encourage the filing of false reports and the working backwards of cases in which such experts state, in effect, “Tell me what you want me to prove and I’ll prove it.”

Here are some examples of out of control prosecutors, and the price that defendants paid:

A) Roy Brown was wrongfully convicted in Cayuga County NY and served 16 years in prison before being proven innocent by DNA. While he was incarcerated, using a Freedom Of Information request, Brown uncovered documents that the prosecution had withheld from the defense, identifying an alternative suspect. Subsequent DNA testing revealed that the alternative suspect was, in fact, the real perpetrator.

B) In Westchester County, the Anthony DiSimone case is one of the most egregious cases, in which the prosecution withheld 52 boxes of evidence, 376 pages of exculpatory evidence pointing to another person being responsible for the murder. His conviction was overturned
after he served 7 years in prison.

C) John Duval was convicted in 1973 of committing a murder in Rochester, NY, along with his co-defendant Betty Tyson. They were convicted based upon confessions which they stated were beaten out of them, and based upon the testimony of two teenage runaways. Later, his conviction, along with that of his co-defendant Betty Tyson was overturned because one of the witnesses recanted his testimony, saying he had lied previously. In addition, prosecutors then came across a buried synopsis of a police interview with the other teen, in which he denied seeing Duval or Tyson, contrary to what the teen had testified to in 1973.

D) Marci Stein, a former Westchester County special education teacher, was convicted of engaging in sexual relations with three teenage students. The Appellate Division ruled that she did not receive a fair trial because prosecutors failed to disclose to the defense attorneys that two of the students who accused her had led notices of claim of their intent to sue the school district. The Court further said “The failure to turn over this evidence was aggravated by the Prosecutor’s [Laura Murphy’s] argument during summation that there was no evidence that the complainants were bringing civil lawsuits as a result of the defendant’s conduct. There is a reasonable probability that this failure to disclose affected the outcome of the trial.”

E) Sami Leka served 13 years in New York before his murder conviction in Brooklyn was overturned by the United States Court Of Appeals because of the prosecutor’s offices keeping the defense from contacting an off duty police officer, who saw the killing and would have bolstered Mr. Leka’s case at trial. Moreover, the police falsely told Mr. Leka’s lawyer during plea negotiations that the off-duty officer could identify him as the gunman, the court found. “‘So there is really no question but that the government suppressed information that it was
required to turn over,’’ said the panel.

D) I, Jeffrey Deskovic, was convicted in Westchester of the murder and rape that I was proven innocent of by DNA. In connection with that wrongful conviction, I have sued several different parties. One of them is former Westchester County Medical Examiner Dr. Luis Roh, for fabricating findings. In the course of this lawsuit, it has been uncovered that Dr. Roh was in the habit of providing results tailored to what the
District Attorney’s Office was seeking to prove. I am also suing e Westchester District Attorney’s Office, seeking to prove patterns and practices.

E) Shih-Wei Su, whose case arose in Queens, NY, served 12 years for attempted murder before his attempted murder conviction was overturned. According to a New York Times article, the judge overturning the conviction, Judge Guido Calabresi wrote, “The prosecution knowingly elicited false testimony from a crucial witness,”The “prosecutor expressly (a) falsely denied before trial that an actual agreement had been reached with the Defendant and (b) falsely established on direct examination that no promises with respect to the Defendant’s sentence had been made to him either by the state or by the sentencing judge” He later was awarded $3.5 million.

F) Again, in Westchester, former police officer Richard DiGuglielmo’s murder conviction was overturned after he served 11 years. In overturning his conviction, the judge ruled that information that witnesses had been interviewed multiple times before changing their stories had not been turned over to the defense. The judge also credited witnesses’ testimony that they had been taped during those interviews, in contradiction to the prosecutions claims that there were no tapes. Those tapes, he ruled, also should have been turned over to the defense.

G) In Mississippi, Kennedy Brewer served 15 years in prison for murder before being proven innocent by DNA. Innocence Project Co-Founder Peter Neufeld, whose organization worked on the case, said, “It’s well known across Mississippi that Steven Hayne works closely with police and prosecutors to make determinations in autopsies that suit their criminal investigations and prosecutions. It’s also well known that Michael West will dispense with professionalism and objectivity to provide favorable testimony for prosecutors, even if his misrepresentations and fabrications could lead to the execution of innocent people.

H) William Brunson was arrested in Queens and spent 2 years in jail before the charges were dismissed. According to a 2007 New York Times, Justice Richard L. Buchter of State Supreme Court in Queens was troubled by the withholding of exculpatory evidence, including a security video and Mr. Khan’s own statement that he never saw the robbers’ faces “due to the fact that their faces were covered with hoods.” He sued the District Attorney’s office, listing 84 cases in which criminal convictions obtained by Queens prosecutors were overturned by higher courts for prosecutorial misconduct. William T. Martin, Mr. Brunson’s lawyer, said he wanted to demonstrate
that “this is pervasive; this is an ongoing civil rights violation in Queens.” The New York Times article further stated Brunson, in a grievance filed June 15 against the prosecutors, said, “I don’t believe these men are above the law. In this case they broke the law. They took me
from my six kids for 2 years and 44 days, when they knew all along there was no case against me.”

In addition to creating criminal liability, we need a law which would subject prosecutors to personal suit for their prosecutorial misconduct, just as those who commit crimes are subjected to criminal prosecution as well as the possibility of being sued. After all, it is by their willing hands that people suffer. Thus it gives another means of redress by victims, in addition to serving as an additional deterrent.

In terms of assessing the overall environment of prosecutorial misconduct across the country, I think that a 2003 report from The Center For Public Integrity is telling: “Local prosecutors in many of the 2,341 jurisdictions across the nation have stretched, bent or broken rules while convicting defendants, the Center has found. Since 1970, individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges at trial, reversing convictions or reducing sentences in at least 2,012 cases. In 513 additional cases, appellate judges offered opinions—either dissents or concurrences— in which they found the prosecutorial misconduct serious enough to merit additional discussion; some of the dissenting judges wrote that they found the misconduct warranted a reversal. In thousands more cases, judges labeled prosecutorial behavior inappropriate, but allowed the trial to continue or upheld convictions using a doctrine called ‘harmless
error.’ The Center analyzed 11,452 cases in which charges of prosecutorial misconduct were reviewed by appellate court judges. In the majority of cases, the allegation of misconduct was ruled harmless error or was not addressed by the appellate judges, and the conviction stood. The relative rarity of reversals makes these opinions useful from an empirical standpoint: Any prosecutor who has more than one reversal to her credit belongs to a select club. Prosecutorial misconduct falls into several categories, including: Courtroom misconduct (making inappropriate or inflammatory comments in the presence of the jury; introducing or attempting to introduce inadmissible, inappropriate or inflammatory evidence; mischaracterizing the evidence or the facts of the case to the court or jury; committing violations pertaining to the selection of the jury; or making improper closing arguments); Mishandling of physical evidence (hiding, destroying or tampering with evidence, case files or court records); Failing to disclose exculpatory evidence; Threatening, badgering or tampering with witnesses;
Using false or misleading evidence; Harassing, displaying bias toward, or having a vendetta against the defendant or defendant’s counsel (including selective or vindictive prosecution, which includes instances of denial of a speedy trial); Improper behavior during grand jury proceedings.

Some of the most common allegations of prosecutorial misconduct involved improper closing arguments and excluding jurors on the basis of race, ethnicity, gender or some other discriminatory grounds. In 28 cases, involving 32 separate defendants, misconduct by prosecutors led to the conviction of innocent individuals who were later exonerated, the Center found. Innocent men and women were convicted of serious charges, including murder, rape, and kidnapping and assault.”

Lastly, in order to ensure that trials are fair and that innocent defendants are not being convicted, we need legislation which would mandate our state appellate courts to grant an automatic reversal of conviction in any case in which the prosecution has engaged in prosecutorial misconduct. I reject the rationale that many courts go down in deciding whether to reverse a case in which prosecutorial misconduct has occurred: assessing whether the error was “harmless”. To me, it is obvious that if it was harmless the prosecutor would not have bothered to engage in it. Once prosecutorial misconduct has taken place, it is impossible to say with any degree of certainty how a trial would have turned out, because that affects how judges and juries view a case, subsequent evidence, and/or could hamper cross examination. Defendants have a right to a fair trial, and this is essential to ensure, to the degree that we can, that verdicts are accurate. Since the right to a fair trial is interfered with when prosecutorial misconduct occurs, the only remedy which can undo what is taken from him or her is by awarding another
trial which is fair.

The New York cases that I have cited above demonstrate that many prosecutors are out of control. They are able to act with such recklessness and disregard of the law because they know that there are no penalties in place to discipline them. Although prosecutorial
misconduct is a statewide and countrywide problem, the Westchester County District Attorney’s Office, under the last two District Attorneys, including the current one, have a particularly unfortunate dismal record in both engaging in and defending prosecutorial misconduct.

Just as a prosecutor’s misconduct results in their victims losing years of their lives, so too should they wind up losing years of their lives.
I am sure that if additional research was done, even more cases in New York would be uncovered. As stated above, I am advocating this for clear cut intentional prosecutorial misconduct. In addition, their victims should be entitled to sue them for monetary damages. To get back on one’s feet after incarceration is not easy, and it is more than just the formerly incarcerated person who suffers from the financial loss. It is also the wives, sons, daughters, and other financial dependants who feel its affects. The right to a fair trial is basic and fundamental, and the only way to repay defendants who have this taken from them by prosecutorial misconduct is to give them a new trial, period, without regard to any other aspect of the case, because it is impossible to say with certainty how a case would have turned out. For those who would raise an objection by citing the costs that retrials would create, my response would be the solution would lie within the District Attorney’s Office.

If they stop engaging in it, there will be no costs to be borne. Taxpayers who are unhappy with their tax dollars going for retrials should vote
those District Attorneys out of office who allow such practices to go on. The report by The Center For Public Integrity illustrates that this problem is rampant across the country, and the cases that I cite should not at all be viewed as abberational. Measures need to be taken to address this crime wave. I am presently in the preliminary stages of working with various Senators and Assemblyman to enact reforms pertaining to wrongful convictions and prosecutorial misconduct. In future Guardian articles, I will write about efforts to reform the shortcomings in the criminal justice system, giving credit to the heroes and pointing out to the public which politicians are obstacles to an accurate and fair court system, as well as those who support prosecutorial misconduct. As I see it, the public has a right to know, and a right to that information, in deciding who they will or not will vote for. I served 16 years in prison for a murder and rape that I did not commit.

Prosecutorial Misconduct was a factor. I had never been arrested for so much as a violation. I was not a high school dropout. In fact, I was on my way to school when was I was intitally intercepted by the police. It happened to me, and it can happen to you, your son, your daughter,
your neighbor, or your friend.