Marking up evidence -- which one Suffolk assistant district attorney did in the fraud case against three members of the Datre family -- is a move that should never be made, whether intentional or not, during the course of prosecuting a case, experts say.
What has been billed as a mistake by Suffolk County District Attorney Thomas Spota's office has resulted in state Supreme Court Justice Fernando Camacho granting a mistrial without prejudice last month.
Edward Heilig, the district attorney's office division chief, on Oct. 6 admitted in court that his colleague Leslie Stevens, also then his co-counsel and previously the lead prosecutor, used a pencil to change the dates and/or the work order numbers on three of the 225 certified payrolls.StoryJudge: Dumping trial to precede any fraud caseStoryLI family may get fraud charges dropped StoryProsecutors admit to marking evidence
Those marked payroll records were shown to the grand jury that was impaneled in September 2014 and included in exhibits attached to the indictment that was unsealed in December. Stevens sometime later erased the markings.
The validity and integrity of the current indictment against Clara Datre, her son, Thomas Datre Jr., her daughter, Gia Gatien, and her company, Daytree at Cortland Square Inc., hang on a decision by Camacho, which has yet to be made.
Experts say the many lingering issues in the case -- which was set to hear opening statements weeks ago -- will now take a significant amount of time to hash out. But one thing could not be more clear: Evidence should never be touched, they said.
Bennett L. Gershman, a Pace Law School professor, former assistant district attorney in Manhattan and author of two books on prosecutorial and judicial ethics, said the situation "is at the very least an embarrassment" to Spota's office and that the district attorney should drop the case and refuse to re-present the case to a new grand jury.
Prosecutors need to be "as scrupulous as they can with evidence and can't change, alter, mark it," Gershman said.
"That's why chain of custody is so critical . . . you might call 12 witnesses in a case to say it hasn't been tampered with. Whether it's guns, drugs or a payroll sheet, you just don't touch the evidence," Gershman said. "That's so fundamental to a prosecutor's function."
Jennifer Rodgers, the executive director at Columbia University's Center for the Advancement of Public Integrity and a former U.S. assistant attorney who has overseen public corruption cases, classified the marking of the documents as "a big problem" when trying to prosecute a case.
"It could potentially taint it," Rodgers said of the indictment. "It sounds like a mess."
Stevens has declined to be interviewed during earlier court appearances. She has since been removed from the case.
Key question on intent
Stevens' intent -- why she crossed a line through certain week-ending dates and work order numbers and wrote new numbers above them -- is what matters most here, Gershman and Rodgers said.
"I think the real question is: What was her state of mind when she did it?" Gershman asked. "Was it totally careless, an inadvertent error or mistake, or was it a deliberate, willful act to improve the evidence in the case to make the evidence stronger and the defendant's guilt more able to be proved?"
Rodgers said that in her experience, a paralegal would make copies of the evidence documents and place stickers on them marking them as grand jury exhibit copies.
"You have a copy you're writing on and making notes or whatever you need to," Rodgers said. "You do that on your own copy. But writing on what is ultimately a document that'll be an exhibit and letting those notes get into a grand jury, I've never heard of that happening."
Both experts said in a case such as this, the judge should hold a hearing and put Stevens under oath to explain when she made the alterations, why she made them, how they ended up in front of the grand jury and into the indictment, when she erased the markings and if she told anyone at the time.
Judge can use discretion
Heilig has said in court that for one work order change, it was "impossible for that work order that was listed on that certified payroll to be the one" that matched the document submitted. He also said Stevens made the markings "in order to conform, in her mind, the three certified payrolls to match the information" on the work order attached to those payrolls that corresponded with information on the certification page.
Heilig has said that Stevens' actions have been blown "way out of proportion," while defense attorneys have emphatically insisted that what she has done is an act of "egregious prosecutorial misconduct" that could call for criminal charges against her.
"Lawyers have ethical obligations that the state of New York imposes," Rodgers said. "She could be potentially in trouble with the bar. . . . She can personally be in trouble, depending on what happened with the erasing situation."
Still, the law allows for some leeway if it was a mistake, Rodgers said, and a judge can use discretion on that.
"Dismissing an indictment due to misconduct is very serious," Rodgers said. "I think if the determination is made that she didn't do anything intentionally wrong, more likely the result would be to deny the motion to dismiss and schedule a new trial date."
Robert Clifford, spokesman for Spota's office, declined to answer questions about Stevens or the documents, including whether Stevens made those markings on the original documents or on her own copies, and which set of documents were copied for the grand jury and the indictment.
After the mistrial, Spota's office agreed to dismiss the current indictment -- as long as prosecutors are able to re-present the evidence, excluding those three certified payrolls and the now 16 charges they say the markings affect.
Prevailing wage case
Clara Datre, Thomas Datre Jr. and Gatien have been charged in what Spota has described as a "calculated" scheme to skim $100,000 in state-mandated prevailing wages from their workers' pockets in connection with a tree-trimming contract with the Town of Islip, and for overbilling $148,504 for work done in a separate contract for cleanup after superstorm Sandy.
State labor law requires that people doing public work at least be paid a certain prevailing wage. The rates for these wages are based on union wages in the area where that type of work is performed. The topic came under heavy scrutiny after Sandy.
Saul Zabell, a Bohemia attorney who specializes in labor law and represents companies dealing with prevailing wage, said calculating if prevailing wages have been paid can get complicated if a certified payroll record -- which is kept for each workweek -- does not line itself up with a different payroll week.
"It's a complete and utter nightmare to calculate whether or not someone was paid prevailing wages on a daily basis," Zabell said. "If the weeks don't match up, you don't know what you're matching up at all."
But a forensic accountant can "deconstruct how everything is paid and see how it works or not," Zabell said. "That's step one of any prevailing wage case."
Changes made to a certified payroll record's week-ending date or work order number would call for an entire new audit, Zabell said, which "takes a long time to do." But even then, he said, "it shouldn't change the end number."
"All you're trying to do is reverse engineer that you're trying to pay someone properly," Zabell said. "What's the right wage, what are the right hours, and what is the amount of pay they actually received."
Alleged prevailing wage violations are rarely pursued, Zabell said, and when they are, it's usually done for political reasons. While he believes that once documents are "tampered with . . . you can't unring that bell," he said there would still be avenues for the state Department of Labor to ensure workers get paid correctly.
"The bottom line is the law wants to ensure the employee gets paid the way they're supposed to get paid," Zabell said.