The ‘Pinstriped Wall of Silence’

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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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