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Joe Sexton: Less than Total Recall

July 9, 2013

A defendant's faulty memory tests the boundaries of credibility.

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Image from Flickr via ChristopherTitzer

By Joe Sexton
By arrangement with ProPublica

For Jabbar Collins, the moment just after 9:35 a.m. on June 21 had been a long time coming. Collins had served sixteen years in prison for a murder he says he didn’t commit. He’d won his freedom, and then sued the prosecutor responsible for what he insists was a wrongful conviction.

Now, inside the offices of the New York Bar Association, that prosecutor, Michael Vecchione, was going to be placed under oath and interrogated by Collins’ lawyer. Collins, who had become a paralegal since his release from prison, had a seat at the proceedings.

Everyone politely introduced themselves into the record.

Vecchione, asked everything from the mundane to the momentous, had answered some version of “I don’t recall” scores of times. Rudin counted them up: 324.

And then Collins’ lawyer, who is seeking millions of dollars in damages, asked Vecchione if there was any medical or physical reason he could not testify to the best of his recollection.

“No,” Vecchione answered.

There was cause for Collins and his lawyer, Joel Rudin, to be eager about what might come next. Vecchione, in fighting Collins’ bid for freedom over the years, had asserted in a sworn affidavit that he had personally made every significant decision in the prosecution of Collins.

At 4:54 p.m., almost seven-and-a-half hours after Vecchione’s deposition began, a halt was called. A lot of ground had been covered. Rudin had won some concessions. But Collins and his lawyer were as exasperated as they were satisfied.

Vecchione, asked everything from the mundane to the momentous, had answered some version of “I don’t recall” scores of times. Rudin counted them up: 324.

“This is evasive contempt if it happened in front of a judge,” Rudin had asserted several hours into his interrogation.

This week, Rudin asked the federal judge overseeing Collins’ lawsuit to force Vecchione to do better. And he asked the judge to sanction Vecchione and the lawyers for New York City who are representing him if he fails to do so.

“Mr. Rudin appears to be unhappy with the answers Mr. Vecchione gave at his deposition, mainly because those answers undermine his client’s claims in this case,” said Arthur Larkin, senior counsel for the New York City Law Department. “But Mr. Rudin’s disappointment with the testimony does not warrant extending the deposition. We intend to oppose the application and will file our opposition papers today.”

Bill Clinton, deposed in a sex harassment lawsuit years ago, offered his fair share of “I don’t recalls,” although conventional wisdom was that Clinton, ever the over-sharer, might have done well to have invoked the answer even more often.

The allegations against Vecchione are some of the most serious in the recent and troubling history of wrongful prosecutions. Vecchione is a senior official in the Brooklyn District Attorney’s office, chief of the office’s rackets division and a featured character in CBS’s television series, “Brooklyn DA.” Collins and his lawyer have accused him of intimidating witnesses and suborning perjury in his prosecution of Collins, and of having then worked to thwart Collins’ effort to challenge that conviction during his years in state prison. More than that, Collins and his lawyer have accused Vecchione’s boss, Brooklyn District Attorney Charles J. Hynes, of having overseen for years an office in which similar misconduct was not only tolerated but rewarded.

Hynes, who is campaigning to win a seventh term, has both stood by Vecchione and denied the claims that his office condoned misconduct. Vecchione, at every turn, including during his sworn testimony last month, has insisted he did nothing wrong.

Certainly, witnesses invoking the “I don’t recall” response during depositions is a familiar phenomenon. And it can be anything from an honest statement to a prudent legal strategy to an outright lie. Bill Clinton, deposed in a sex harassment lawsuit years ago, offered his fair share of “I don’t recalls,” although conventional wisdom was that Clinton, ever the over-sharer, might have done well to have invoked the answer even more often. And the rapper Lil Wayne’s videotaped deposition in a legal dispute was so entertainingly full of “I don’t recalls” that it became a YouTube sensation.

Vecchione’s inability to recall things began early in his deposition and continued until its end. He could not recall some fairly basic things about how the Brooklyn district attorney’s office was run; he could not recall if Hynes, his boss, had ever discussed with him the allegations of misconduct made by Collins in his $150 million lawsuit; he couldn’t recall if he’d ever received formal training in the rules regarding what prosecutors were obligated to turn over to defense lawyers; he couldn’t recall how long the romance he’d had with his fellow prosecutor on the Collins case had lasted.

Nor could he recall the details of perhaps his most famous prosecutorial victory—the conviction of Clarence Norman, the Brooklyn political kingpin.

Rudin did not ask Vecchione about Norman by accident.

One of the allegations made in the Collins lawsuit involves what Rudin asserts was Vecchione’s practice of having someone else sign his sworn affidavits—for subpoenas or other kinds of orders or legal work. Doing so could be considered a crime. Vecchione has denied he authorized people to do so, but during Rudin’s examination, he could not account for repeated examples in which he acknowledged sworn affidavits bearing his name were signed by someone else.

To wit, Clarence Norman.

“Who is Clarence Norman?” Rudin asked Vecchione.

“He is a former assemblyman and former head of the democratic party in Brooklyn,” Vecchione answered.

“And did you handle his prosecution?” Rudin asked.

The final exchange with him involved potentially sensitive office emails concerning the Collins case. Vecchione could not remember much about them. Indeed, his final answer, after more than seven hours of questioning was, “I don’t recall it.”

“I did,” Vecchione said. “Prosecutions. There were four.”

“And was he charged with, among other things, the filing of a false public document?” Rudin asked.

“I don’t recall,” Vecchione answered.

“You don’t recall what he was charged with?” Rudin asked.

“I recall some of the things he was charged with in general, but I don’t,” Vecchione started to answer.

“Do you recall whether or not he was charged with the crime of filing a false public document?” Rudin persisted.

“I don’t recall,” Vecchione maintained.

Rudin then produced one of a number of documents that Vecchione, during his time in the district attorney’s office, had sworn out under penalty of perjury. Vecchione agreed that the signature on the document was not his.

“During 1995 were you aware whether or not anyone employed by the Brooklyn District Attorney’s office had ever signed your name to either an affirmation or an affidavit that was submitted to court?” Rudin then asked.

“I don’t recall,” Vecchione said.

For Rudin, Vecchione’s most frustrating inability to recall things involved his sworn claim made years ago about his handling of the Collins case. In 2006, Collins, in large part as a result of his own intrepid work from prison, had mounted an appeal of his murder conviction. The Brooklyn District Attorney’s office had to respond, and as part of that response, Vecchione, as the senior prosecutor on the Collins case, swore out an affidavit.

The affidavit ran to seven pages. It was a point-by-point rebuttal of Collins’ claims of misconduct.

“As the lead prosecutor, I and I alone determined the course of our investigation and the manner in which the trial was conducted,” Vecchione said.

And his memory, he said, was sharp.

“Although I tried this case in March 1995, more than eleven years ago, I still have a clear recollection of it,” he said.

Seven years later, and despite seventeen hours of prep work with city lawyers, Vecchione seemed to say his memory had suffered.

He couldn’t remember if he’d ever interviewed any other possible suspects in the case. He couldn’t remember if he’d ever interviewed an alleged key member of the group that plotted the robbery that led to the murder. He couldn’t remember if he’d ever interviewed any of Collins’ alibi witnesses.

Indeed, Vecchione said he couldn’t recall whether he’d actually prepared the affidavit refuting Collins’ allegations or someone else had. And he said he couldn’t recall if he had ever meaningfully reviewed critical aspects of the case with the person in his office responding to Collins’ legal challenges.

In the end, the record of Vecchione’s testimony ran to 354 pages. The final exchange with him involved potentially sensitive office emails concerning the Collins case. Vecchione could not remember much about them. Indeed, his final answer, after more than seven hours of questioning was, “I don’t recall it.”

Eleven days later, Rudin filed papers in federal court. He asked for more time to question Vecchione. And he asked that Vecchione be punished if the additional questioning went much as the initial seven hours had. Of Vecchione’s failure to recollect, Rudin wrote:

“He has the right to claim that if it’s true, but his testimony went further in its deliberate evasiveness, and should not be tolerated.”

Joe Sexton is a senior editor at ProPublica. Before coming to ProPublica in 2013, he had worked for twenty-five years as a reporter and editor at The New York Times. Sexton served as Metropolitan Editor at the Times from 2006 to 2011, and his staff won two Pulitzer Prizes, including the award for breaking news for its coverage of Eliot Spitzer’s downfall. From 2011 to 2013, Sexton served as the paper’s Sports Editor, overseeing its coverage of the 2012 Summer Games in London and the Penn State scandal, among other major stories. The department under Sexton won a wide array of awards for its photography, art design and innovative online presentations. As a reporter, Sexton covered sports, politics, crime and the historic overhaul of the country’s welfare legislation. His work was anthologized in The Best American Sportswriting (Houghton/Mifflin.) Sexton is a lifelong resident of Brooklyn, the father of four daughters.

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