Fordham Law


A Conflict Is Seen in a Review of a Detective’s Conduct

Bruce Green in The New York Times, May 15, 2013

Media Source

By FRANCES ROBLES

Alvena Jennette spent almost 21 years in prison, writing appeals that pointed out irregularities in his murder case, such as how the chief eyewitness changed her story and contradicted another onlooker. In each instance, the office of the Brooklyn district attorney fought back against his claims.

But now his is one of some 50 murder convictions that the office is reviewing after the lead detective, Louis Scarcella, was accused of misconduct that put at least one innocent man in prison for 23 years. “The same people who were rejecting my arguments all those years are going to review them?” said Mr. Jennette, 49, who was released on parole in 2007.

He is not alone in seeing a conflict. Mr. Jennette is one of several voices calling for the Brooklyn district attorney, Charles J. Hynes, to step aside from the investigation and ask Gov. Andrew M. Cuomo to appoint a special prosecutor.

A former Brooklyn federal prosecutor, Kenneth Thompson, who is running against Mr. Hynes in the Democratic primary, wrote a letter to the governor on Wednesday asking him to use his authority under the state’s executive law to appoint the attorney general or a special prosecutor to review Mr. Scarcella’s cases and other questionable convictions.

The controversy has ignited a broader debate about whether New York State needs a permanent body to examine wrongful convictions so that prosecutors are not put in the position of having to examine their own work. Mr. Hynes, a six-term district attorney, was in office when many of the questionable convictions occurred. Others occurred during the tenure of his predecessor, Elizabeth Holtzman.

Experts in postconviction law say a series of recent high-profile exonerations revealed prosecutorial misconduct and raised questions about whether the time has come for an outsider to review innocence claims.

“When a Delta plane crashes, Delta doesn’t do the review — the National Transportation Safety Board does,” said Peter Neufeld, co-director of the Innocence Project, an organization that uses DNA evidence to fight wrongful convictions. “It is essential to avoid the appearance of conflict of interest.”

The controversy in Brooklyn began in March with the release of David Ranta, who was an unemployed drug addict when he was arrested in the 1990 murder of a Hasidic rabbi. After 23 years in prison, the Brooklyn district attorney’s office conceded that Mr. Scarcella had told a witness whom to pick in a lineup, had ignored another suspect and had let witnesses out of jail to smoke crack and visit prostitutes.

An examination by The New York Times of other cases, all during Ms. Holtzman’s tenure, showed that Mr. Scarcella presented the same crack-addicted prostitute as an eyewitness in several homicide cases, including Mr. Jennette’s. Some inmates denied giving Mr. Scarcella a confession and were convinced that they were set up by a rogue detective so eager to clamp down on rampant drug-fueled crime that he did not care whether he got the wrong guy.

Mr. Scarcella denies any wrongdoing.

“There needs to be independent oversight of all prosecutors,” said Steve Banks, attorney in chief at the Legal Aid Society, which said it handled several cases of Mr. Scarcella’s that were overturned. “Public confidence needs to be restored, regardless of who is at fault.”

Mr. Banks said the legal defense organization planned to seek court relief for its clients and had asked the district attorney for the names of those affected.

“We’re conducting our own review,” he said.

Mr. Hynes’s office said an outside review was unnecessary and stressed that he had the support of the president of the Kings County Criminal Bar Association.

“The D.A.’s position is that there is no basis to appoint a special prosecutor,” said the office spokesman, Jerry Schmetterer. “He’s very serious and committed to remedy any injustice that has been done.”

Mr. Schmetterer noted that Mr. Hynes himself was a special prosecutor. Mr. Hynes took office in 1990, shortly after he was appointed to take over the criminal prosecution of a group of white teenagers who beat a black man and chased him to his death on the Belt Parkway in Howard Beach, Queens.

The decision to appoint a prosecutor would fall on Mr. Cuomo, whose father, former Gov. Mario M. Cuomo, selected Mr. Hynes for the Howard Beach case. As attorney general, the younger Mr. Cuomo was appointed to take over the wrongful conviction investigation of Marty Tankleff, who was convicted of killing his parents, Seymour and Arlene Tankleff. Mr. Tankleff was released after 17 years in prison.

The governor’s office said it would review Mr. Thompson’s request.

Although members of the defense bar laud Mr. Hynes for creating the Conviction Integrity Unit, which investigated Mr. Ranta’s case, they question his sudden interest in wrongful convictions when his office spent two decades fighting appeals for men like Mr. Ranta.

“We were screaming about Scarcella and his one-witness cases for 20 years,” said Mr. Ranta’s trial lawyer, Michael Baum. “Maybe Charles Hynes should step down from this review. That would show that he really cares” about wrongful convictions.

Bruce Green, a legal ethics expert at Fordham University School of Law, said Mr. Hynes was not wrong to insist on doing the job for which he was elected, but said the issue underscored the need for greater reform. “Can a D.A. clean up his own mess?” Mr. Green said. “That’s the bigger question.”