The Suffolk district attorney’s office has struggled to comply with the constitutional rule that requires prosecutors to turn over exculpatory evidence to defendants, attorneys and legal experts have long said.
Then, last week, the murder prosecution of Messiah Booker ended abruptly after the defense attorney discovered that Assistant District Attorney Glenn Kurtzrock had withheld key evidence. Kurtzrock was forced to resign that evening.
“For the criminal law community, this is an Earth-shattering event,” said Craig McElwee, president of the Suffolk County Criminal Bar Association.
The next day, District Attorney Thomas Spota invited several prominent defense attorneys to discuss changing discovery to an “open file” system, in which all the evidence, reports and notes that prosecutors have would be made available to defense lawyers. Meanwhile, Spota said his office is examining “every single one” of Kurtzrock’s cases to make sure he hadn’t done the same thing before.
The consequence in the Booker case was immediate and stunning. Prosecutors dismissed a second-degree murder charge against Booker, 32, on Tuesday after his attorney, Brendan Ahern of Hauppauge, methodically detailed dozens of instances of evidence that Kurtzrock withheld. Some of it indicated other people had confessed to the crime and that witnesses identified a shooter other than Booker.
Kurtzrock watched from the audience, his face in his hands, as the murder charge was dismissed and Booker pleaded guilty to second-degree attempted burglary. Booker will serve 5 years in prison, instead of the 25 years to life he faced on the murder charge.
Spota, who announced Friday he would retire at the end of the year, said his open file proposal was already in the works.
“It’s in its infancy right now,” he said. Although the policy would not be binding on his successor, it would be unlikely to be undone.
Spota said he had been thinking about making the change for two months already, before the Booker case fell apart. “The Brady issue has become so complex,” he said, referring to the 1963 Supreme Court decision that requires prosecutors to turn over evidence favorable to defendants. The decision reinforced the maxim that prosecutors should be more concerned with doing justice than seeking convictions, and sought to level the playing field between prosecutors and the defense.
“I think this will alleviate any suggestion that there are intentional Brady violations,” Spota said of his plan.
Ahern welcomed the change.
“It 100 percent would have made a difference” in his case, he said. Of Spota’s timing in pushing the open file system, Ahern said, “It seems like an acknowledgment of a disaster.”
Lawyers and legal observers note that Suffolk has had a flurry of cases in which prosecutors were accused of hiding evidence in recent years.
They include the reversal of Gabriel Hubbard’s 2011 murder conviction because of a Brady violation, sanctions last year against the chief of the Homicide Bureau in the Dante Taylor case for the withholding and destruction of evidence, findings of withheld material in the 2009 Rudolph Bisnauth case and withheld and destroyed evidence in the ongoing trial of John Bittrolff.
Lawyers note there could be many other such cases that no one knows of.
“How many have been missed?” McElwee asked. “It’s an enormous problem.”
Opinions vary on whether Suffolk’s Brady compliance problems are extreme, but there is agreement that its culture needs to change.
“This seems to be a pattern,” said Ellen Yaroshefsky, executive director of Hofstra University Law School’s Monroe H. Freedman Institute for the Study of Legal Ethics. “It’s a long-standing culture whereby Brady material and other discovery is not turned over, and there are no consequences. . . . It’s obviously a culture that encourages this kind of behavior.”
Some said it happens elsewhere, too.
“Brady is all too frequently violated, not only in Spota’s office, but throughout the country,” said Richard Klein, a criminal justice professor at Touro Law Center in Central Islip.
It’s often the result of a corrosive culture that values winning more than doing justice, Klein said. “You’re not a star if the material is so exculpatory that you lose at trial,” Klein said. “Who wants to give away their case?”
But Emily Constant, Spota’s chief deputy, said that is not the case in Suffolk.
“No one’s ever been transferred or demoted for losing cases,” she said.
Barry Scheck, co-director of the Innocence Project, which has helped exonerate dozens of people who were falsely convicted of murder, found the behavior of the district attorney’s office “extremely troubling.”
“There has to be an independent investigation of that office,” Scheck said. He suggested the state attorney general’s office could do it.
Spota, however, rejected any assertion that his office was worse than others.
“They’re talking through their hats,” he said. “I just don’t see that we’re outside the norm.”
There are a variety of reasons prosecutors get away with violating pretrial discovery rules, lawyers and experts said. But others also bear responsibility for the situation, lawyers said.
“We are to blame, as well,” McElwee said of his fellow defense attorneys. Too often, he said they don’t push prosecutors and judges to follow the rules.
“You don’t want to upset the applecart,” he said. “We shouldn’t lay down after we’re defeated.”
He said any lawyer who doesn’t do what Ahern did — meticulously examining the file to figure out notes were missing and then making a strong argument about the misbehavior — is failing his or her client and the criminal justice system.
Judges deserve some blame, too, Klein said.
“It is the mandate of the judge to protect the constitutional rights of the defendants who are before them,” he said, and they should sanction prosecutors who violate the rules. “But judges are loath to find prosecutors in contempt. Virtually nothing ever happens. The message needs to be sent, to deter.”
It’s important to fix the system, said Joseph Ferrante, Bisnauth’s appellate attorney.
“It’s never-ending,” he said. “It’s not even close calls on this stuff. . . . You don’t want to lose faith in the system, because you have to work in it.”
The Brady Rule, named for Brady v. Maryland (1963), requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense. “Brady material” or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused — evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness.
SOURCE: CORNELL UNIVERSITY LAW SCHOOL