Its so rare when a prosecutor faces sanctions for withholding Brady and Rosario material that I felt it was worth reporting on as way to kick off what hopefully will be a better year for the wrongfully convicted languishing in prisons.
For the non-lawyers who read/follow my blog, Brady is a legal term for evidence that tends to exculpate the accused in the possession of the police or prosecutor that must be turned over to the defense prior to trial. The term stems from the 1963 SCOTUS case Brady v. Maryland. Rosario is the legal term for material in the possession of the police or prosecutor that may tend to effect the credibility of a trial witness that must be turned over prior to trial. The term stems from the 1961 New York Court of Appeals case People v. Luis Rosario.
Glenn Kutzrock was a homicide prosecutor in the Suffolk DA’s Office assigned to prosecute a murder case, People v Messiah Booker. The indictment charged Booker with murder in the second degree and burglary in the first degree. The indictment also charged three codefendants, namely, Booker’s brother, sister, and nephew. The criminal charges arose from events that occurred in the early morning hours of January 27, 2013, when, during the course of a home invasion by armed and masked intruders at a home in Flanders, the victim, a male occupant of the house, was shot and killed. Booker was identified by the sole witness to the crime, a 16 year old girl who was hiding in a closet. She said she recognized Booker’s voice as he gave instructions during the crime.
Kutzrock was facing sanctions for failing to disclose evidence to defense counsel, including that a different individual, John Doe No. 1, was implicated in the crime. One of the items withheld was a prior statement from the ear-witness who identified Booker’s voice that Booker after shots were fired said “[John Doe No.1] Why did you do that? That was not the plan [John Doe No.1]” Booker’s defense had always been that he stayed in his girlfriend’s car outside during the robbery and that it was his brother who entered the house with John Doe No. 1. It was also his defense that he did not know a robbery was about to be committed. Also withheld were statements from other witnesses that the ear-witness had changed her story several times. The defense also was not given a prior statement from the witness that revealed she was on strong ADHD medication which affected her perception.
At trial, in exchange for a plea deal, Booker’s girlfriend testified that she stayed in the car but that everyone in the car, including her and Booker, knew what was about to happen. Kutzrock also withheld a prior statement from Booker’s girlfriend where she told police she had no idea a robbery was about to be committed.
Kutzrock claimed he thought he had turned everything over but had relied on the police to provide him all the documentation as was his practice. Of course, that is not proper. It is the obligation of the ADA on the case to make sure he has complied with Brady and Rosario. In the middle of the hearing examining the Brady issue that was being conducted by the trial court, Kutzrock was taken off the case and his supervisor stepped in. Before the judge could rule on the defense motion to dismiss the indictment, they offered Booker a five year plea deal which he accepted. Kutzrock resigned from the office after the case ended.
In most cases, that’s where it would end. Swept under the rug without a determination as to whether there was a violation and with no further consequences to the misbehaving prosecutor. But here, the matter was referred to the State Grievance Committee which is run by the Appellate Division of New York State Supreme Court. They conducted a hearing and issued the ruling on December 30, 2020.
In outlining the role of a prosecutor, the court stated:
The prosecutor’s role as a public officer is well recognized. The District Attorney’s client is the people of the State of New York). A prosecutor is an officer of the court and a representative of the People of the State. The duty of the district attorney, therefore, is not merely to obtain convictions, but to see that justice is done. The District Attorney is an advocate, but, at the same time, he [or she] is a quasi-judicial official and his [or her] primary duty is to see that justice is done and the rights of all — defendants included — are safeguarded.
A 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. As such, the prosecutor is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. A prosecutor may prosecute with earnestness and vigor – indeed, . . . should do so. But, while the prosecutor may strike hard blows, he [or she] is not at liberty to strike foul ones. It is as much [a] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
The court suspended Kutzrock from the practice of law for a period of two years. While the court found that there was no evidence Kutzrock had done this before, he did say that his practice was to rely on the police to tell him what evidence was in the file without looking at the file himself. Complying with Brady and Rosario is not that hard: most criminal files contain no more than a couple of dozen pieces of paper. Not looking through it yourself is tantamount to willful blindness. A two year suspension is a slap on the wrist, in my opinion. Yes, the decision is a public record and will always be a serious stain on Kutzrock’s career and for two years he will have to look elsewhere for income. But he still has his Suffolk DA pension to live off of and I guarantee that when he gets back out to private practice he will tout his decades of experience as an ex-ADA without mentioning this black mark. As he currently does( see below)
I worry also that the court gave such a lenient suspension because it did not appear Mr. Booker was innocent of the robbery. While making no specific mention of this, they do detail all the other evidence of Booker’s guilt as to his participation in the robbery. We must realize that in order to protect the innocent we must apply the rules across the board – to the innocent and the guilty as well. The guilty have every right to exculpatory evidence that the innocent do. Withholding Brady and Rosario in their cases can be just as egregious as doing so in the case of an innocent person. Our system is designed not to convict the guilty but to protect the innocent. One big reason it falls flat in doing so is because we ignore or downplay a breaking of the rules by prosecutors and judges, particularly in cases where there is strong evidence against the accused. But that’s not for a DA or a judge to decide – the rules must be upheld across the board each time in every case. We must truly treat each defendant as innocent until proven guilty. Bending or breaking those rules must be dealt with harshly to ensure that serious injustice does not occur.
This decision is a good first step, but such a clear and apparently willful violation of Brady and Giglio should have cost Kutzrock more than two years of practice.
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