Suffolk District Attorney Timothy Sini is training his prosecutors to share more evidence with defense attorneys, in an effort to avoid ethical failures so serious that five murder cases were dismissed in the past year.
“We are about to issue new protocols in the office,” he said, which will include checklists to make sure that prosecutors seek relevant information from every witness in a case, determine if the defense also should have it and then turn it over if necessary.
“When there is some uncertainty, we will always err on the side of discovery,” Sini said in an interview last month, adding later: “It’s critically important to the health of our criminal justice system, to the legitimacy of the criminal justice system.”
A number of Suffolk judges have dismissed cases, sanctioned prosecutors and reduced sentences when they have found prosecutors withheld evidence from defense attorneys in violation of what is known as the Brady rule, named after a 1963 U.S. Supreme Court decision establishing it.
As a result, defense attorneys in several cases were unaware of other uncharged suspects or credibility issues with certain witnesses.
In the most recent murder case dismissal, Shawn Lawrence’s conviction and sentence of 75 years to life in prison were set aside because of prosecutorial misconduct.
“It is clear where the fault lies,” state Supreme Court Justice William Condon said last month, as he noted how prosecutors hid 45 items of evidence that pointed to other suspects and undermined the case against Lawrence. “It’s just stunning.”
Defense attorneys say it’s too soon to notice any difference since Sini took office in January, and some are skeptical that an office that has ignored discovery rules for so long will change easily.
“In this county, for too long Brady and discovery have been a running joke,” said Dan Russo, who runs the county’s Assigned Counsel Defender Plan. “Can he change it? I’d like to think he can.”
Sini said last month that it has to change.
“There’s not an issue that’s more important than creating a culture of compliance,” Sini said. Following legal rules such as Brady, which generally requires prosecutors to turn over evidence favorable to defendants, not only are the ethical thing to do, but they also make convictions less vulnerable to appeal, Sini said.
Sini said he is determined to make sure his prosecutors know and follow the rules. There will be “constant, repetitive training” on discovery rules, and he said he will run the first training session on the Brady rule himself.
But that doesn’t mean defense attorneys will be able to do whatever they want with this material, he said. If it’s not relevant to the issues at trial, prosecutors will seek to preclude it, he said. And if it puts witnesses or ongoing investigations at risk, he said his office will seek protective orders to prevent lawyers from disseminating it.
“There are going to be judgment calls that judges will have to make,” Sini said.
Prosecutors should not worry that they are undermining cases by disclosing evidence, he said. Instead, he said they should focus on preparing cases more thoroughly and, if necessary, finding ways to handle weaknesses instead of hiding them.
Defense attorney Robert Macedonio said he wasn’t sure prosecutors have heard Sini’s message yet. Prosecutors last month gave him a letter about “an unsubstantiated allegation” that a detective had been accused of committing perjury 26 years ago, he said. Two investigations could not establish that he had testified falsely, the letter said.
Macedonio replied in a letter that he should have the detective’s entire file, not just a letter describing it, because the allegations undermine the detective’s credibility in a current robbery case against his client.
Sini declined to discuss this case, but said disclosing information in a letter is appropriate.
Some were more hopeful about the possibility of change.
Defense attorney Michael Brown of Central Islip said he was optimistic.
“The culture has been one of don’t ask, don’t tell,” Brown said — prosecutors felt if they didn’t know about evidence a defendant would want, they wouldn’t have to turn it over. “So this is a good change.”
Bryan Browns, the Suffolk County Legal Aid Society’s trial director, said if Sini is committed to this issue, “it would change the landscape in Suffolk County.”
In addition to allowing defense attorneys to prepare more fully for trial, Browns said it also would enable lawyers to know better when defendants should just plead guilty and avoid trial.
Barry Scheck, co-founder of the Innocence Project, said Sini’s inclination to disclose evidence even if not admissible at a trial is “exactly the right way to go.” He is encouraged that Sini intends to have his prosecutors scour files for evidence to disclose.
Defense attorneys still have to do their jobs, too, Scheck said. They should push prosecutors to look for such evidence and if necessary get judges to order them to do it, he said.
Failures to follow Brady rule
- Shawn Lawrence, convicted of murder and sentenced to 75 years to life in prison for a 2010 ambush shooting, walked free last month after state Supreme Court Justice William Condon found that dozens of items of evidence favorable to Lawrence had been hidden by prosecutors.
- The murder indictment against Messiah Booker was dismissed midtrial last year by State Supreme Court Justice John Collins after defense attorney Brendan Ahern showed that Assistant District Attorney Glenn Kurtzrock had withheld evidence that witnesses identified a different shooter and that others had confessed to the killing of Demetri Hampton. Kurtzrock was forced to resign. Booker and three co-defendants all pleaded guilty to lesser charges and got substantially lighter sentences.
- In the case against Dante Taylor, state Supreme Court Justice John Collins in 2016 sanctioned Assistant District Attorney Janet Albertson for failing to disclose to the defense that police had evidence suggesting that others may have raped and killed Sarah Goode in 2014. Despite the sanctions, Taylor was convicted of first-degree murder.
- Rudolph Bisnauth was convicted of the 2009 killing of Jeremiah Armstrong. In 2015, state Supreme Court Justice Mark Cohen ruled that although Assistant District Attorney Robert Biancavilla should have disclosed that the key witness in the case was an informant on drug cases, there was enough other evidence to convict Bisnauth despite the failure to obey the Brady rule.
- Gabriel Hubbard was convicted in 2012 of the 2008 killing of Jaquan Jones. In 2014, state Supreme Court Justice Martin Efman threw out the conviction, ruling that Assistant District Attorney Raphael Pearl should have alerted the defense that the same detectives who got Hubbard to sign a confession had produced a discredited confession from a cabdriver shot by an off-duty Nassau County officer in Huntington Station. Hubbard later pleaded guilty to manslaughter.