A long time ago, I wrote an article entitled “The Constitution is Overrated” and friends and colleagues of mine who knew the admiration and passion that I have for this country’s grand document were surprised at the piece which faulted, not the document itself, but how courts have applied it; rarely, do courts give those who face unconstitutional prosecutions, searches, seizures the fullest remedy available under the law – suppression of the evidence or dismissal of the charges.
Today’s NY Law Journal published a decision that shows how far prosecutors can go and still not cause a dismissal of criminal charges. In People v. Benjamin Waters the defendant was charged with stabbing Carolyn Vargas to death in her apartment. The only evidence against Mr. Waters was the testimony of Ronald Baker, who told police that he was asleep in a bedroom in Ms. Vargas’ apartment when at 2AM, he heard aloud thump coming from the living room, ran out to see what it was and saw the defendant running out of the apartment. The defendant was arrested and indicted for Murder in the Second Degree. Mr. Baker testified to essentially the same facts before the Grand Jury. In several interviews with defense counsel, Daniel Mentzer, Mr. Baker consistently informed Mr. Mentzer that he did not witness the incident but merely heard a thump while inside the bedroom and arose to find Ms. Vargas lying on the floor and defendant fleeing the apartment.
On one occasion, Mr. Mentzer even went with Mr. Baker to the apartment where the incident occurred and Mr. Baker showed Mr. Mentzer where he was in the bedroom when the incident happened. When the case was marked ready for hearings and trial, the prosecutor provided Mr. Mentzer with an additional statement made by Mr. Baker to his probation officer wherein Mr. Baker again stated that on the night of the incident he was in his bedroom when he heard a thump, whereupon he left his bedroom and observed Ms. Vargas lying on the kitchen floor. Clearly, the defense was getting ready for a trial based on opportunity to observe; unlikelihood of how Baker could have heard the thump, gotten up and ran into the living room all in time to see the defendant. The picked a jury and made an opening statement based upon that defense.
The case continued to move forward with the prosecution finally turning over the record of prior convictions of Mr. Baker, which included a prior manslaughter conviction form Virginia. When the time came for the prosecution to seek admission of the 911 call made by Mr. Baker, a hearing was called for the court to determine its admissibility.
At that hearing, Mr. Baker was called by the prosecution, identified his voice on the recording and then stated on cross-examination that he had actually seen Mr. Waters stab Ms. Vargas. When defense counsel pressed him on why he changed his story now, the witness said that the defendant “had to take responsibility for what he had done.”
A lengthy colloquy then took place during which the prosecutor acknowledged that he had been aware for several weeks that Mr. Baker had changed his story and would testify at trial that he actually saw the defendant stab and kill Ms. Vargas. Mr. Mentzer stated that he had no idea that Mr. Baker would testify that he saw defendant stab Ms. Vargas and that, had he known of this change in Mr. Baker’s version of events, he would have conducted jury selection and his opening statement in a different manner. Over the prosecution’s objection, the Court granted defendant’s request for a mistrial. Defendant moved for dismissal of the indictment based citing a Brady violation.
Brady v. Maryland, 373 U.S. 83, a landmark United States Supreme Court case, requires the prosecution to disclose, in advance of trial, evidence which is favorable to the accused. While most prosecutors seem to believe it only applies to actually exculpatory evidence, that is not the case. It requires the disclosure of favorable evidence in time for the defense to use it effectively. People v. White, 178 A.D.2d 674. Evidence that the defendant is entitled to is not limited solely to evidence which supports the defendant’s trial theory but also includes evidence which would bear on trial strategy. United States v. Bagley, 473 U.S. 667. When the reliability of a given witness may be dispositive of guilt or innocence, material evidence affecting that witness’s credibility constitutes exculpatory evidence. Giglio v. United States, 405 U.S.150.
The court in this case, correctly found that the sole witness doing a complete 180 degree turn in his story about the central issue in the case was the kind of “favorable” evidence the prosecution was required to disclose. The prosecution did not help itself any when it began to answer the court’s inquiry about this constitutional lapse.
The ADA stated that his failure to disclose was “motivated by an intent to secure defendant’s conviction.” The court found that this revelation “clearly indicates that he believed that the information would be favorable to the accused.” When the court asked the ADA if he had advised Mr. Baker that he might need counsel since he intended to admit he perjured himself before the Grand Jury, the prosecution admitted that it had given Mr. Baker IMMUNITY FROM PERJURY in exchange for his trial testimony! I had to use ALL CAPS because I have been involved in litigation for over 25 years and have never seen immunity from perjury being given. Neither has Judge Walker who stated that this grant of immunity was “something heretofore unheard of by this Court.”
The court was also particularly distressed by the government having disclosed Mr. Baker’s consistent statement to his probation officer at a time when the prosecutor knew that Mr. Baker intended to testify that he saw Waters stab the victim. Judge Edgar Walker, who wrote the opinion, stated, that this disclosure:
“can only be taken as an attempt to mislead the defendant. The prosecutor’s conduct constitutes more than a mere failure to disclose; it amounts to an affirmative act of deceit.”
Judge Walker then took great pains to remind the government that the role of a prosecutor is not to win at all costs, but to do substantial justice, citing the oft quoted case of Berger v. untied States, 295 US 78:
[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.
The court then went on to also state the main ethical rules, professional canons of ethics, and governing standards that forebid this type of behavior on the part of a prosecutor. Judge Walker continued to admonish the prosecution reminding them that while the system is adversarial, “the trial of a criminal charge should not be a sporting event where each side remains ignorant of the facts in the hands of the adversary until events unfold at trial.” But Judge Walker did not even stop there:
Even more troubling in this case is that the prosecutor had every reason to believe that Mr. Baker would make perjurious statements at trial given that his changed version of events was inconsistent with every prior statement made by him to the police, his probation officer and Mr. Mentzer, as well as his sworn testimony before the grand jury. On the other hand, if the prosecutor actually believed Mr. Baker’s changed story to be true, then he would have known that Mr. Baker committed perjury before the grand jury since he admits that this changed testimony contradicts Mr. Baker’s grand jury testimony.In either case, the prosecutor’s failure to disclose this information is inexcusable.
Judge Walker had the prosecutor in the cross-hairs – he was aware that his key witness (his ONLY witness) had perjured himself either at the grand jury or at the 911 admissibility hearing. Of course, BOTH may be false, but at the very least, the 911 hearing testimony and the intended trial testimony are the most suspect as it is not believable that a witness would not tell detectives, 911 operators, Grand Jurors and prosecutors that he actually observed the killer stabbing the victim.
So what remedy did Judge Walker fashion for this unethical and “deplorable” (his own words) conduct?:
However deplorable the Court finds the prosecutor’s conduct, dismissal is not an appropriate sanction, as society should not be punished for the misconduct of the prosecutor. In addressing such violations, “the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society.”
Balancing these concerns, the Court finds the following sanctions are appropriate: The People are directed to seek to obtain and turn over to defendant, as soon as possible, all police reports, DA write-ups, accusatory instruments and prison disciplinary records for all of Mr. Baker’s prior convictions, including but not limited to his manslaughter conviction in Virginia. While these documents are not technically discoverable under Article 240, this is an appropriate sanction to rectify the damage done to defendant by the prosecutor’s misconduct.
In addition, this matter shall be set down for a hearing before this Court to obtain, pre-trial, the testimony of Ronald Baker regarding the death of Carolyn Vargas as well as the underlying facts surrounding all of his prior convictions, including his manslaughter conviction in Virginia. Again, while pre-trial depositions are not normally available in criminal proceedings, given the conflicting accounts previously given by Mr. Baker under oath, and the egregious conduct of the prosecutor in suppressing this information, it is appropriate under these particular circumstances to ascertain exactly what this witness will testify to at trial.
OK, so prosecutor withholds Brady material; tries to mislead a defense attorney by disclosing a statement that he knows will be contradicted at trial; breaches ethical rules; suborns or supports perjured testimony; and then grants immunity form perjury all in order to obtain a conviction in a case that has reasonable doubt already written all over it and STILL the court lets the criminal case move forward.
What makes this more depressing is that Judge Walker is not one of those judges who went from the DA’s office right to the bench. He’s not some political appointee who became a judge because that’s the only way he can make a living as a lawyer. A graduate of Cornell University and Columbia Law, he was in private practice for 18 years before becoming a civil court judge and then served as administrative judge of the County of the Bronx for many years – no slouch. But he missed the boat here big time. Yes, judges must protect society from violent criminals and not just dismiss cases for mere technicalities when the defendant can still get a fair trial. But even the strong remedies he afforded Mr. Waters in this case sends a message to prosecutors everywhere that they can push the envelope right to the brink. Heck, they can rip the envelope to shreds in fact and it won’t matter.
Prosecutors who are so desperate to win that they will engage in this conduct, will only stop behaving unethically when cases get thrown out. Society has as much right to be protected from unethical, unconstitutional prosecutions as it does from violent criminals. Justice requires that courts treat both obligations to protect society with some measure of equality, or else, someone is likely to believe that our great document, the Constitution, is in fact very overrated.