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Stephen Engelberg: A Simple Fix

Should New York compel judges to report problem prosecutors?
Image from Flickr via wallyg

By Stephen Engelberg
By arrangement with ProPublica

This op-ed was co-published with the New York Daily News.

Shih-Wei Su was jailed for twelve years on attempted murder charges before a federal appeals court overturned his conviction, finding that a Queens prosecutor had “knowingly elicited false testimony” in sending him to prison. The city eventually paid Su $3.5 million.

The prosecutor received a private reprimand.

Jabbar Collins served fifteen years in prison for a murder he didn’t commit before his conviction was thrown out in 2010. Michael Vecchione, a senior Brooklyn prosecutor, had withheld critical evidence during trial, a federal judge determined. Collins has filed a $150 million lawsuit against the city.

No action has been taken against Vecchione.

I’m editor-in-chief here at ProPublica. A recent investigation by our reporters Joaquin Sapien and Sergio Hernandez found these cases were hardly unique.

Sapien and Hernandez reviewed a decade’s worth of court documents and found thirty instances in which state or federal courts identified misconduct serious enough to throw out a conviction.

Yet hardly anyone involved in the prosecutions was held accountable.

The reporters also identified more than fifty instances in which state appellate courts had criticized the tactics of prosecutors but let convictions stand.

But as far as we could determine, none of these cases resulted in disciplinary action against anyone in the DA’s offices either.

The issue, at heart, is not the frequency of misconduct, but the lack of consequences for prosecutors who violate their oaths.

Senior prosecutors we interviewed contend that almost all of the instances of alleged misconduct amounted to honest mistakes or differences of opinion on the requirements of the law. And they like to note that cases of misconduct represent a tiny portion of the criminal charges processed each year by courts in the five boroughs.

It’s hard to know what to make of that claim. The vast majority of convictions, more than 90 percent, are plea bargains—deals struck outside of public view. If prosecutors are willing to violate rules at trial, who is to say what is going on behind closed doors?

More importantly, the claim that instances of serious misconduct are few amounts to a convenient bit of misdirection. The issue, at heart, is not the frequency of misconduct, but the lack of consequences for prosecutors who violate their oaths.

All of this forces us to ask: What are judges obligated to do, and should they be required to do more?

A judge in New York who learns there is “substantial likelihood” that a lawyer has committed a “substantial violation” of legal ethics must take “appropriate action.”

The view of the judges seems to be: We included it in our opinion. That’s enough.

A lawyer who “knows” that another lawyer has violated ethics rules so that a “substantial question” is raised concerning the suspect lawyer’s honesty, trustworthiness or fitness must report the issue to an appropriate authority.

Take a close look at these words and you can see pretty quickly why the system has broken down. The words are fuzzy; they leave tremendous discretion.

Our reporters were told the state’s disciplinary committees, which work for the court system, do not receive automatic referrals from trial or appellate judges, even when they have found prosecutors manipulated evidence, condoned perjury or worse.

The view of the judges seems to be: We included it in our opinion. That’s enough.

The other means of bringing cases involving prosecutors to ethics investigators—referrals by defense lawyers—seems inherently flawed. Few who work regularly in the criminal courts are eager to bite the hand that plea bargains.

There are better ways. Some states have imposed much stiffer requirements on judges to report allegations of wrongdoing by prosecutors.

New York could easily emulate those states. And given what we’ve uncovered, it’s hard to see why leaders of the legal community would want to do anything less.

Stephen Engelberg was the founding managing editor of ProPublica from 2008-2012, and became editor-in-chief on January 1, 2013. He worked previously as managing editor of The Oregonian in Portland, Ore., where he supervised investigative projects and news coverage. Before that, Engelberg worked for eighteen years at The New York Times as an editor and reporter, founding the paper’s investigative unit and serving as a reporter in Washington, D.C., and Warsaw. Engelberg shared in two George Polk Awards for reporting: the first, in 1989, for articles on nuclear proliferation; the second, in 1994, for articles on U.S. immigration. A group of articles he co-authored in 1995 on an airplane crash was a finalist for a Pulitzer Prize. Projects he supervised at the Times on Mexican corruption (published in 1997) and the rise of Al Qaeda (published beginning in January 2001) were awarded the Pulitzer Prize. During his years at The Oregonian, the paper won the Pulitzer for breaking news and was finalist for its investigative work on methamphetamines and charities intended to help the disabled. He is the co-author of Germs: Biological Weapons and America’s Secret War (2001).

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