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Suffolk DA, legal clinic seek federal grant to study innocence claims

Keith Bush is embraced outside Suffolk County Court

Keith Bush is embraced outside Suffolk County Court in Riverhead after his murder conviction was vacated on May 22. He is greeted by family and friends. Photo Credit: James Carbone

The Suffolk district attorney and the New York Law School legal clinic that championed the recent exoneration of convicted murderer Keith Bush are seeking a federal grant for a far-ranging study of Suffolk’s methods in handling murder cases and other felonies as part of an effort to avoid wrongful convictions.

Reacting to problems exposed in one of the longest-running “innocent man” cases in U.S. history, DA Timothy Sini applied for research money under a U.S. Justice Department program designed to review post-conviction claims of innocence, identify problems with police and prosecutors, and recommend solutions “to strengthen the integrity of the criminal justice system.”

If approved, it would mark the second involvement of the U.S. Justice Department in Suffolk law enforcement in recent years.

Sini said the review would “take a hard look” at both old cases and more recent prosecutions where there have been substantial claims of innocence or where there is evidence of possible wrongdoing by police and prosecutors. Along with the 44-year-old case of Bush, who claimed his 1975 murder confession resulted from a police beating, Sini said the new study will examine “cases where confessions were taken without videotaping and where defendants have consistently maintained their innocence.”

Howard S. Master, who heads the DA’s Conviction Integrity Bureau created by Sini last year, will oversee the federally funded review if the grant is approved. On May 22, Master and a team of CIB investigators issued a lengthy report that resulted in a Suffolk judge throwing out Bush’s conviction for the 1975 murder of a North Bellport teenager, largely because of improper actions by police and the trial prosecutor, including withholding evidence about another potential suspect in the case. The judge’s exoneration of Bush reflected many findings in a Newsday-News 12 investigation published a few days before.

The federal initiative, called “Upholding the Rule of Law and Preventing Wrongful Convictions Program,” promotes joint criminal justice studies between prosecutors and outside entities such as NY Law School’s Post-Conviction Innocence Clinic run by law professor Adele Bernhard, who handled Bush’s long legal fight to exonerate himself. As a result of the Bush case, Master invited Bernhard to join in applying for the federal study, which she called a unique opportunity for law students to learn the intricacies of complex criminal prosecutions.

“It’s very exciting,” Bernhard said of the federal program, which would provide about $275,000 in funding for a study lasting about two years. “Many of my students become prosecutors themselves and it’s important that they’re taking these ethical responsibilities seriously.”

In addition to the Bush case, Sini said, this proposed study would help sort through the merits of more than 80 petitions from defendants seeking to vacate their convictions, including a claim of innocence in a 1990s murder case that is now being actively investigated by the CIB.

Sini said this initial sorting of petitions would allow the Conviction Integrity Bureau to determine where they will focus their efforts, which he said can be costly and time-consuming. The bureau’s investigation of the Bush case took many months and involved Master and a team of several prosecutors and investigators who examined hundreds of court documents and testimony and interviewed witnesses, including Bush himself.

Sini also said he expects the study to look at more recent murder cases handled by former Assistant District Attorney Glenn Kurtzrock, who was forced to resign in 2017. Two of Kurtzrock’s murder cases fell apart because of alleged misconduct involving the withholding of evidence. Sini also said the panel may review past cases cited in a 1989 state Commission of Investigation report that criticized Suffolk’s handling of homicide prosecutions and other felony investigations.

Suffolk Police Commissioner Geraldine Hart says she’s supportive of this study proposal. If the Suffolk County District Attorney’s Office is awarded this grant, we will work together on beneficial training opportunities and partner to identify and address any systemic issues,” said Hart. “We are committed to having the best practices in place to guarantee the integrity of the cases we put forward.” Hart has selected Insp. Milagros Soto, who is assigned to the Office of the Commissioner, as the new liaison to the DA’s Conviction Integrity Bureau.

If the federal grant is approved by October as expected, the new study would join another U.S. Justice Department review of Suffolk law-enforcement already under way. Since 2014, the Justice Department has been reviewing public complaints of biased policing, allegations of police misconduct, and efforts to improve police oversight as part of a legal settlement with Suffolk County, prompted by Latino community complaints following the 2008 hate-crime killing of an Ecuadorean immigrant, Marcelo Lucero, by a group of teenagers in Patchogue. Last fall, Hart said her department “continues to make significant progress” in reaching Justice Department improvement goals.

Sini said the proposed study would focus mainly on murder convictions and other major cases handled by police and prosecutors. This federal wrongful convictions program, according to the Justice Department website, is designed to identify “potentially legitimate” claims of innocence by convicted defendants and “enact measures to prevent future errors,” while also seeking “to identify actual perpetrators of crime.” The Justice Department says the program is meant help police and prosecutors to come up with better methods and policies, as well as defense lawyers and the courts, to prevent wrongful convictions.

In the aftermath of Bush’s exoneration, Hart said her department would cooperate fully with the DA’s Conviction Integrity Bureau in its review of possible wrongdoing in cases. Hart warned that any officer found to have lied under oath would be fired and prosecuted for perjury. In the Bush case, the bureau discredited police testimony about Bush’s alleged confession, showing how it was contradicted by forensic evidence. The bureau also reported that one of the detectives who took Bush’s signed 1975 confession showed a “racial animus” toward Bush, using a racial epithet when recently interviewed by bureau investigators.

Many of the concerns about possible prosecutorial misconduct in Suffolk, such as the Kurtzrock cases, revolve around violations of the “Brady rule”. That term refers to a landmark 1963 U.S. Supreme Court decision in Brady vs. Maryland, declaring that the prosecution must turn over all exculpatory evidence prior to trial that could shed light on a defendant’s innocence. In June, shortly after Bush’s exoneration, Sini requested the resignation of prosecutor Andrew Weiss after the failure to disclose evidence in an arson case caused the DA’s office to drop it.

Sini has been adamant that official wrongdoing won’t be tolerated by his office but has acknowledged a previous “culture” of corruption that “unfortunately infected certain parts of the Suffolk County criminal justice system.” His predecessor, former DA Thomas Spota, is facing federal corruption charges and is expected to go on trial later this year for allegedly helping to cover up wrongdoing by former Suffolk Chief of Police James Burke.

Sini said he wants the new study to look at other cases handled by the detectives and the trial prosecutor in the Bush case. Both Sini and Bernhard say it will be difficult to determine if there are any more “innocent man” cases like Bush’s. Bush spent 33 years in prison fighting for his freedom and another decade on parole. But for defendants who claim they were wrongfully convicted, this new effort might give them a chance to prove themselves.

“I think there is a concern that there may be other [innocent] cases like Bush’s,” Bernhard said. “But I don’t know who they might be.”

Editor's note -- A previous version of this story incorrectly identified the New York Law School.

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