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A Simple Fix: Should New York Compel Judges to Report Problem Prosecutors?

As new cases of crooked prosecutors emerge, ProPublica editor Stephen Engelberg wants to know if the answer is with the judges.

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

Shih-Wei Su was jailed for 12 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 15 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. Arecent 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 30 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 50 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.

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.”

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.

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