By Graham Rayman (The Village Voice)
January 2, 2012
Late on October 18, a Thursday, veteran criminal defense lawyer Mark Bederow was frustrated. He had made a half-dozen formal requests over a period of months for more documents in the Brooklyn armed-robbery case of 64-year-old Ronald Bozeman, and it felt like he was banging his head against a wall.
As Bozeman languished in jail, Bederow had learned a series of disturbing things about the case that led him to believe it should have been dismissed months earlier. But the promised documents—known as "Brady material" after the relevant case law—had not arrived.
Shortly after 5 p.m., he sent an e-mail to prosecutor Sabeeha Madni, who works for Brooklyn District Attorney Charles Hynes. "Please send the documents immediately," he wrote.
Two hours later, Madni responded. "Relax," she sniffed. "You'll get them. It's not like any of that material exonerates your client anyway, so it's not even technically Brady."
Madni turned out to be wrong. And Ronald Bozeman would spend more than a year in jail for a crime he didn't commit.
A number of cases like Bozeman's have lately cast Brooklyn District Attorney Charles Hynes and his office in a less-than-flattering light. There have been repeated allegations of prosecutorial misconduct, political influence peddling, and basic ineptitude. Hynes has been widely criticized, for example, for shielding rapists and pedophiles in the ultra-Orthodox Jewish communities in Brooklyn as a way of currying favor with politically influential rabbis. And several high-profile criminal cases have fallen apart after revelations that his office has either manipulated evidence or withheld exculpatory evidence it is required to disclose to defense attorneys. In several cases, innocent men spent months or even years behind bars.
"It seems that the culture of that office has reached a point where its reputation has suffered tremendously," says Bennett Gershman, a leading expert on prosecutorial misconduct who teaches law at Pace University. "People look at that office as a place that cares about winning and pleasing certain constituencies and really doesn't show a sense of doing justice. The other sense is that it's a political office, and Hynes is a political prosecutor. He's been there a long time. Maybe he's been there too long."
It's certainly the case that Hynes has been in office for a political eternity: 23 years, through six terms, six police commissioners, and three mayors. He has held sway through the racially motivated slaying of Yusuf Hawkins in Bensonhurst, Brooklyn; through the Crown Heights riots and the conviction of Charles Price and Lemrick Nelson; the precinct-house assault of Abner Louima by officer Justin Volpe; and the corruption trials of judges Victor Barron and Gerald Garson. And those are just a few highlights from a long list.
Now 77 years old, Hynes came from a modest start in a chaotic Flatbush home. He was educated in city Catholic schools and at St. John's, then spent six years as a Legal Aid lawyer before becoming a prosecutor in Brooklyn. He was fire commissioner under Ed Koch. Governor Mario Cuomo named him a special prosecutor in 1985. His pursuit as a special prosecutor of Michael Griffith's killers in the infamous 1987 Howard Beach case catapulted him to prominence and led to his 1989 election as Kings County District Attorney. He has been there ever since.
But Hynes's relatively brisk rise in the '80s flatlined in the '90s. In 1994, he ran for state attorney general and lost to Karen Burstein in the primary (though he did outpoll future attorney general and governor Eliot Spitzer). In 1998, he ran for governor and lost badly in the Democratic primary to Peter Vallone, who in turn lost to incumbent George Pataki.
Hynes never again sought higher office, leading some observers to suggest he is a man with bruised ambitions. Even as a long-entrenched incumbent Democrat running for D.A. in a Democratic Party stronghold, he has sometimes struggled. His primary win in 2005 was surprisingly close: With more than 115,000 votes cast, he won just 41 percent, beating out the second-place finisher, African-American state senator John Sampson, by 5,600 votes. And while he ran unopposed for D.A. in 2009, now, with the 2013 election less than a year away, two challengers have already emerged: Kenneth Thompson, a well-known criminal defense lawyer who represented the maid who accused the prominent French politician Dominique Strauss-Kahn of sexual assault, and Abraham George, a 33-year-old former Manhattan prosecutor.
"He was vulnerable in 2005, and he's vulnerable now," said a longtime Hynes observer. "The real issue is Mr. and Mrs. Jones in Bed-Stuy or along Ocean Parkway, what they think, whether they care about this stuff."
If you look at Hynes's official biography, you'd be tempted to think he was more interested in social welfare than in prosecuting felons. It focuses largely on community programs he developed: the first nursing home fraud units; a family justice center, dedicated to his mother, a victim of domestic violence; an early alternative treatment program for drug offenders; programs to help prisoners re-enter society; a gun buy-back program now replicated citywide.
"Hynes has been one of the most innovative prosecutors in the country," says Ken Fisher, a lawyer and former city councilman who was involved in Hynes's first campaign for D.A. "But it's very hard to sustain innovation over a long period of time."
There is no denying that Hynes has done good things. In certain ways, he has proved himself an enlightened district attorney. But when you start talking to people dealing with him today, you discover a man they perceive as disengaged—at best—from the daily operations of his office, one who appears to have fostered a culture in which winning at all costs is acceptable, even if that cost is measured in prison time for an innocent man. As another longtime Hynes watcher told the Voice, "He's not so deeply involved in the management of the office as he used to be. He's a fundamentally decent guy who has been cruising. And the longer you do something, the more likely you are to screw up."
A leadership vacuum in any bureaucracy tends to yield several by-products, including fear and ambition. At the Brooklyn D.A.'s office, the fear is of displeasing the boss, and the ambition, presumably, is about replacing him. Taken together, the result has been toxic, according to Andrew Stoll, a Brooklyn criminal and civil lawyer. Stoll says Hynes's prosecutors "are totally afraid of exercising any discretion, of standing up and saying: 'This case is bullshit. I'm not prosecuting this.' The idea of going to a Brooklyn prosecutor with compelling evidence of innocence is ridiculous. They will never dismiss anything. They want to seem like they are tough on crime. Everyone is afraid of the next New York Post headline."
Stoll says the tension between wanting to appear aggressive and knowing they are pushing weak cases plays out in prosecutors' constant adjournments or continuances. "They make believe they are prosecuting," he says. "They ask for a one-week adjournment, and it turns into a month and a half. The purpose is to wear defendants down and get them to plead out, and make it appear as if the prosecutors are working. People's lives get destroyed."
Here are some of those people:
Darrell Dula, Damien Crooks, Jawara Brockett, and Jamali Brockett
In the spring of 2011, Hynes's office charged the four African-American men with torturing and sexually abusing an Orthodox Jewish girl for nine years. "If you are a pimp, we will catch you, and when we do, we will aggressively prosecute you and seek the maximum sentences," Hynes announced at a press conference on June 29, 2011, where the indictments were unveiled.
That bluster was gone a year later when Hynes was forced to dismiss the charges after it became clear that his prosecutors had failed to tell the defense that the victim had recanted her claims. His office also apparently failed to fully check out the victim's background before indicting the men.
Dula has since sued Hynes. His lawyer, Jonathan Sims, tells the Voice: "Certainly it concerns me that he was up there saying those things. Was he aware that there was a recantation? If he was aware of evidence that had not been turned over, that has to be investigated."
Lauren Hersh, a prosecutor in the case, resigned. Dula and Crooks were released 10 months after their indictment.
Jerry Schmetterer, Hynes's spokesman, contends prosecutors actually uncovered the errors themselves. "As soon as we learned there was a problem with this case, we asked the court to release Dula, and we eventually dismissed the case," Schmetterer says.
Sims is skeptical of this claim. "Someone in that office would have had to have known about it around the time of indictment," Sims counters. "You would have had to be willfully blind not to have known about it."
Convicted in the October 1, 1997, murder of Kendall Isler, during a drug-deal-turned-robbery, Hendrix is also suing Hynes's office. In this case, prosecutors relied entirely on the word of Damien Toler, a career criminal who had been arrested 20 times in 10 years and was facing charges for an unrelated gunpoint robbery.
A jury in December 2010 needed less than 30 minutes to acquit Hendrix. He had been jailed for nearly 600 days, was injured in three fights, and sustained a serious infection of his left foot.
"They indicted him solely on Toler's word," Hendrix's lawyer Gregory Zenon wrote. "There was no other evidence. . . . A simple and proper investigation would have revealed my client was innocent."
No one personifies the loyal Hynes lieutenant better than Michael Vecchione, a longtime member of the Brooklyn D.A.'s office and now chief of the Rackets Division. In 2003, a federal judge ordered the release of Marshall, who had served 10 years for robbery and murder, when it emerged that Vecchione made a secret deal with a key witness but never disclosed it.
Bruce Barket, Marshall's lawyer at the time, says the witness was claiming Marshall had made a jailhouse confession in the case. Vecchione pulled him out of jail and promised a deal if he testified against Marshall at trial that day.
The witness, Cicero Murphy, and Vecchione denied there was any secret deal that day or in two subsequent trials involving Marshall. Barket later found a signed agreement between the two men that led to a favorable plea deal for Murphy.
As Barket recalls it, he was cross-examining Vecchione in a habeas corpus hearing when the judge, Edward Korman, cut him off. "He says, 'Wait a minute,' takes the documents, and says to Vecchione, 'Counsel, how do you reconcile this?' And Vecchione shrugs and says, 'It is what it is, judge.'"
"He [Vecchione] has a right to defend himself, but the process needs to start," Barket says. "There ought to be an inquiry with an adjudication into his conduct. It seems to me outrageous that these things keep happening."
Yet keep happening they do. Vecchione was lead prosecutor in the murder trial of Jabbar Collins, who was convicted by the testimony of three witnesses in the 1994 slaying of Rabbi Abraham Pollack:
Angel Santos claimed he saw Collins running from the scene. He later said under oath that Vecchione threatened to hit him with a coffee table and make him stay in jail unless he testified.
A second witness, Edwin Oliva, had claimed he was present when Collins plotted the murder. But a retired detective later said Oliva recanted the story in police interviews—information Vecchione never turned over to Collins's defense lawyer, as he is required to do. According to claims in Collins's lawsuit, Vecchione also got Oliva's work release from prison revoked and threatened to keep him in prison until he testified against Collins. This alleged extortion also was not disclosed to the defense.
The third witness, Edwin Diaz, said he got a deal in which he would testify against Collins if the prosecutors helped him in clearing a probation violation. This, too, was withheld from the defense.
Collins served 16 years for a murder he did not commit. When no one would listen to his pleas of innocence, he taught himself legal procedure and eventually found his way to freedom with the help of lawyer Joel Rudin, who says the evidence shows a "pervasive pattern of continuous misconduct by every assistant district attorney who touched this case over 16 years."
Of course, remarks like that might be expected from a plaintiff's lawyer, but a little more than a month ago, during a hearing on Collins's wrongful conviction lawsuit against the city, U.S. District Judge Frederic Block made a similar statement from the bench. After bemoaning the fact that, under the rules, Vecchione will "regrettably" get "total immunity" from being personally sued, Block sharply criticized Hynes's support of Vecchione: "Hynes praises Vecchione as one of his wonderful prosecutors. He's said he's done nothing wrong at all. . . . There are serious things that Vecchione did here."
"I'm disturbed by Hynes's behavior," he added. "This is horrific behavior on the part of Vecchione."
Block then questioned why Vecchione didn't testify in an earlier proceeding on his role in the case. The city attorney explained it was the D.A.'s decision. "All of this is going to be uncovered," Block replied. "I kid you not. . . . I'm just puzzled why the district attorney did not take any action against Vecchione," he said. "To the contrary. He seems to ignore everything that happened. And an innocent man has been in jail for 16 years."
In his complaint in the case, Rudin cited 56 cases of prosecutorial misconduct in Brooklyn stretching from the mid 1980s to last year. These cases demonstrate, he wrote, "Mr. Hynes's continuous, deliberate indifference to similar misconduct in other cases," and show "direct evidence of unlawful office-wide policy and practice."
Hynes has repeatedly promoted Vecchione over the years, including after the problems with the Collins prosecution came to light.
Brooklyn City Councilman Lewis Fidler, who was Hynes's campaign manager in his first run, in 1989, says much of the criticism of his old boss is unfair. "You just named half a dozen cases—how many felonies do you think he handled in that period? You need to judge the man by the body of his work."
There is no doubt that the volume of cases in Hynes's office makes "screwups" inevitable. But the patterns that emerge from the "body of his work" are increasingly difficult to ignore. As one Brooklyn elected official puts it, "The office has become stale, insular, and arguably corrupt in the manner in which it selectively pursues certain prosecutions but declines to pursue others."
As a prosecutor, Hynes is supposed to be aloof from politics, above pandering to the mob or the media. But he has frequently been criticized for doing just that. Take, for example, the case of former city child-abuse case workers Chereece Bell and Damon Adams.
Bell and Adams were responsible for overseeing the family of four-year-old Marchella Pierce. When Pierce died in 2010 as a result of years of neglect, Hynes charged her mother and grandmother with murder and manslaughter respectively. The case became a major story, and the media and public outcry grew over whether the entire city child-welfare system itself was also at fault.
Even though no caseworker had ever been charged in the death of someone in the system, Hynes convened a grand jury in 2011 and indicted Bell and Adams for criminally negligent homicide. They had, he said, failed so egregiously to do their jobs, the girl had died. "Baby Marchella might be alive today had these [Administration for Children's Services] workers attended to her case with the basic levels of care it deserved," he said at the time.
To some, it appeared he was caving in to public pressure. "Hynes is pandering for political reasons," says Anthony Wells, of Local 371, the union that represents caseworkers, during a December 14 hearing. "All these two people did is go to work and do their best in a difficult environment."
Bell and Adams have now been schlepping in and out of court for nearly two years. Meanwhile, the indictments have sent a chilling effect through the system, say current and former caseworkers. "The overwhelming feeling is that no matter what you do, no matter how many times you visit, it's not good enough," a caseworker tells the Voice.
According to the Brooklyn pol, the Bell case is "perceived as law-enforcement overreach in order to chase headlines in a case that caught the country's attention. These two individuals should have been disciplined, but prosecuting them to the full extent of the law seems excessive and unlikely to occur outside the glare of the media spotlight. If that is the standard, then you can do that to judges, who release suspects on bail who then go out and commit a heinous crime."
But the Bell case is not the first time Hynes has been accused of using his office for political gain. He pursued charges against a campaign foe, John O'Hara, on the ground that he didn't live in the borough. He indicted his former patron, Brooklyn Democratic Party boss Clarence Norman, not once but four times, after public opinion turned against him.
"What we have right now is not a D.A., but a politician," says George, one of Hynes's opponents in the coming re-election campaign.
That accusation seems to dog Hynes's decisions. In a borough full of brown people, for example, he has acquired a reputation for being particularly solicitous of white ones, especially in the ultra-Orthodox communities that have given him tremendous support.
Back in 2002, Hynes agreed to a lenient plea deal for Isaac Chehebar, son of a prominent family of merchants and a member of the Sephardic Bikur Holim synagogue. Chehebar was accused of vehicular manslaughter and criminally negligent homicide after killing two sisters and seriously injuring their mother while out joyriding in a friend's Porsche. Hynes, who had earlier won a second-degree murder conviction in a similar case—thundering that he was sending "a clear message to these high-octane terrorists on the Belt Parkway and everywhere in Brooklyn"—offered Chehebar a deal allowing him to serve just four months in jail and two years of house arrest. Subsequently, some $80,000 in contributions from Chehebar's family, associates, and congregants ended up in Hynes campaign coffers. His 2005 campaign opponents suggested there was some kind of deal, which Hynes denied, but clearly he has a great deal of financial support in the community.
Those political ties have also been cited to explain Hynes's handling of sex abuse among the Hasidim. In a 2008 editorial, The Jewish Week described Hynes's attitude toward such cases as "ranging from passive to weak-willed." In May, The New York Times published an analysis of Hynes's performance, suggesting that his efforts to rein in ultra-Orthodox sexual predators have been reactive at best and in many cases altogether reluctant. Hynes famously agreed, for instance, to rabbis' requests to let them handle the cases internally and has repeatedly declined to make public the names of the accused—even after they were convicted. Not coincidentally, perhaps, the Times reported that in his razor-thin 2005 victory over John Sampson, he won by a landslide in ultra-Orthodox Jewish neighborhoods.
Hynes rejects any suggestion that he has buckled to ultra-Orthodox rabbis in exchange for political support. He cites cases made by a special unit he created, Kol Tzedek ("Voice of Justice" in Hebrew). And he recently won a conviction against Nechemya Weberman, a Yeshiva counselor accused of sexually abusing an Orthodox teen. After winning the Weberman conviction, Hynes told reporters that once and for all, the "veil of secrecy" had been lifted.
Hynes counts the Weberman case, and a second conviction—against Emanuel Yegutkin, a principal of a private Jewish school in Brooklyn—as significant victories. "Those cases support our position on how we've been handling this issue," says his spokesman, Schmetterer. Fidler likewise insists he's "astonished that Hynes is taking criticism" for handling of Orthodox Jewish cases. "He has taken one of the most difficult nuts to crack in today's society and has done his best to crack it. He deserves tremendous credit."
But Kol Tzedek wasn't formed until 2009, in the face of strident public criticism. The Times analysis concluded that "some of Mr. Hynes's claims about the Kol Tzedek program appear to be inflated."
On August 26, 2011, a supermarket worker named Ahmed Awardeh came out of a Flatbush Avenue bank carrying a pouch containing $9,000; as he walked toward an SUV carrying his boss, a man pushed him into the car at gunpoint and a second jumped into the back seat. The gunman struck Awardeh repeatedly, grabbed the pouch, and forced the worker to walk down the block before letting him go.
Ronald Bozeman, a 64-year-old ex-con, was arrested for armed robbery in December, after police discovered his DNA profile on a white cloth inside a bag left behind by one of the robbers. As a convicted felon, he faced life in prison.
Five days after Bozeman's arrest, Lauren Silver, an assistant district attorney in Hynes's office, took the case to a grand jury, where both Awardeh and his boss identified Bozeman as the gunman. The grand jury voted to indict Bozeman.
Five months later, in January 2012, police arrested a second suspect, Gregory Johnson. On January 30, ADA Silver took the Johnson case to another grand jury. This time, Awardeh and his boss testified that Johnson was the gunman. The grand jury indicted him, too.
In other words, even as Bozeman sat in Rikers, the same prosecutor was knowingly using the same two witnesses to secure the indictment of another man for the same crime. "The prosecution of two people as the same gunman is a clear violation of due process," says Gershman, the Pace University Law professor. "The courts do not allow prosecutors to pursue inconsistent theories."
Bozeman's lawyer Mark Bederow was deeply concerned about the contradictory indictments, and last June, shortly after he took over the case, he started pressing Silver's office for more documents, making at least six formal requests and numerous informal ones to prosecutor Sabeeha Madni over the next five months. He was largely ignored. Bozeman continued to fester in jail.
On October 18, Bederow wrote Madni again, and received her e-mail telling him to "relax" and insisting that no documents she possessed would exonerate his client.
Eventually, Bederow found out enough about the case to convince him it should be dismissed:
He learned that the key witness, Awardeh, picked out Bozeman after he had identified a third man as the robber; prosecutors didn't tell Bederow about that ID for five months.
He learned that the third man, Edicy Reedy, was identified by police as a suspect weeks before they arrested Bozeman, but that they never ran down the lead even though Reedy's cell phone was found in the backseat of the SUV, and his DNA was on the handle of the bag left in the car by one of the perps. Prosecutors never placed Reedy in a lineup or questioned him before indicting Bozeman.
And Bederow learned that Bozeman's DNA on the white cloth was the only forensic evidence against him. Neither DNA nor fingerprints were found outside the bag or anywhere on the SUV.
"Based upon any reasonable interpretation of this material," Bederow wrote in late November, in a 10-page letter calling for dismissal of the charges, "it is clear that the D.A. had knowledge that prosecution against Mr. Bozeman was unwarranted at the very time it approved his arrest, and sought his indictment, remand, and lifetime incarceration."
Incredibly, even on October 18, after many of these glaring weaknesses had been exposed in the year-old case, Madni still pushed for a guilty plea. "Let's have a conversation again about whether we can agree on any disposition on this case," she wrote.
On December 12, six weeks after her e-mail to Bederow, Madni was forced to watch as her boss dropped all charges against Bozeman and ordered his release.
Bederow told the Voice that Madni's e-mail demonstrated "a fundamental lack of understanding of constitutional rights and an indifference to investigating serious claims about a man who should not have been prosecuted."
Hynes's spokesman counters that within two days of Bederow's document request, he got what he was seeking, specifically the outcome of a lineup. But a series of e-mails between Bederow and Madni clearly show Bederow was asking for far more than a single lineup. And another e-mail, dated four days after Schmetterer says the material was turned over, shows that even then Bederow still hadn't gotten everything. As for Schmetterer's contention that Hynes prosecutors discovered the problem (with a previous lineup) and brought it to the court's attention, that ignores the fact that Bederow had been raising those issues for months.
In the end, prosecutors did get one conviction: Johnson eventually pleaded guilty. But when Hynes's office finally went after Reedy a year later, they were stymied. Having said for two years that there were just two suspects, they could not suddenly come back and accuse a third robber in the crime. They were forced to decline to prosecute Reedy.
In the wake of the dismissal, Bederow has been busy. He sent a letter demanding that Hynes investigate the conduct of Madni, Lauren Silver, and their bosses. He wants an inquiry into whether any cops perjured themselves or falsified records. And he demanded that Hynes seek perjury indictments against the witnesses.
"The D.A. consistently ignored red flags brought to its attention, which would have resulted in a reasonable prosecutor promptly dismissing the case," he wrote. "Mr. Bozeman lost over a year of his life because of the D.A.'s failure to properly investigate this case and supervise its prosecutors."
That seems to be becoming a theme.