Claims Against City Advance in Wrongful Conviction Case

By Andrew Keshner (NY Law Journal)
February 19, 2013

A federal judge has ruled that a man who was incarcerated for 16 years for a now-vacated murder conviction can press his arguments that Brooklyn District Attorney Charles Hynes and the NYPD were "deliberately indifferent" to the misconduct that secured his conviction.

Eastern District Judge Frederic Block (See Profile) declined on Feb. 15 to dismiss civil rights claims against the city by Jabbar Collins because he said Collins had adequately pleaded allegations against the municipality in Collins v. The City of New York, 11-CV-766.

However, the judge "reluctantly" dismissed claims against the prosecutor who tried Collins, Assistant District Attorney Michael Vecchione, saying that he was shielded by absolute prosecutorial immunity.

Collins alleged in his $150 million suit that Vecchione—now the bureau chief of the Brooklyn District Attorney's Rackets Division—fabricated evidence and did not reveal a witness' recantation, among other things. Hynes is not a defendant in the suit but has praised Vecchione and defended his conduct in the Collins case.

Block observed that, at this stage of the litigation, Collins was entitled to argue that Hynes' support of Vecchione reflected a "tacit" policy to condone any actions his subordinates thought necessary to achieve a conviction.

"The Court concludes that Collins's allegations regarding Hynes's response—or lack thereof—to misconduct by Vecchione and other assistants make plausible his theory that Hynes was so deliberately indifferent to the underhanded tactics that his subordinates employed as to effectively encourage them to do so," Block said.

Collins, represented by Joel Rudin, also alleges that two police detectives, who remain defendants in the case, "coerced" a man into signing a written statement that falsely accused Collins of planning to commit the robbery during which a member of Brooklyn's Hasidic community was murdered. Their actions reflected the police department's lack of proper training on interrogation tactics and the obligation to reveal exculpatory evidence to prosecutors, Collins argues.

Collins cited the 1994 Mollen Commission Report disclosing police corruption, which devoted an entire section to instances of police perjury and fabrication of documents.

"Of course, the Report's findings are not conclusive," Block said. "But they at least make it plausible that the type of misconduct that led to Collins' arrest and prosecution was endemic within the NYPD. A jury could reasonably infer from that circumstance, if proven, that the department's policymakers were aware of a serious risk of constitutional violations, and that the failure to take any action in response to the problem—whether through training or otherwise—was the result of deliberate indifference."

Collins was arrested in March 1994. The Mollen Report was issued in July.

The two now-retired detectives, Vincent Gerecitano and Jose Hernandez, did not move for dismissal and as a result, a number of claims against the pair—including violations of Collins' Fourth and Fourteenth Amendment rights—are moving forward. They are the only individual defendants left in the case.

In 2010, Eastern District Judge Dora Irizarry issued a writ of habeas corpus in which she blasted the prosecution's attitude during her review as "shameful" and barred the district attorney's office from retrying Collins (NYLJ, June 10, 2010).

Block also criticized the office during oral arguments late last year on the city's dismissal motion. He said then that he was "disturbed by allegations that Hynes praised Vecchione," and also that he was "puzzled" why Hynes had not taken disciplinary action against Vecchione (NYLJ, Nov. 19, 2012).

Block also at the time urged settlement talks and said he would let some claims proceed.

In his Feb. 15 ruling, Block also scrutinized the actions of six prosecutors who denied Collins' FOIL requests following his conviction. The office denied the requested information existed, even though it did, Collins noted in his complaint.

Collins argued their conduct violated the state Freedom of Information Law and also his rights under Brady v. Maryland, 373 U.S. 83, a 1963 U.S. Supreme Court ruling that requires prosecutors to disclose material, exculpatory evidence to defendants.

The city said the prosecutors were entitled to absolute immunity because their responses were associated with their prosecutorial function.

In dismissing the prosecutors from the case, the judge said their duty to answer FOIL requests could be viewed "in some general sense" as "administrative." But Block noted Collins was trying to "elevate" the duty to a constitutional obligation pursuant Brady.

"That duty entails a uniquely prosecutorial function and, therefore, must be protected by absolute immunity," he wrote.

Block also held two investigators in the district attorney's office were entitled to absolute immunity. And he dismissed an intentional infliction of emotional distress claim against the city.

But the judge let Collins proceed with a claim against the city for negligent hiring, training and supervision.

Block noted the city's arguments that negligent hiring or supervision claims can proceed only when the employees acted out of the scope of their employment. The judge said the city had not yet taken a position whether various individuals were acting inside or outside the scope of their employment, making adjudication of the claim "premature" at this juncture.

Rudin, Collins' attorney, praised Block's "scholarly decision," saying in a statement that the judge had upheld Collins' "most important claims against the City of New York, for the unlawful policies of the Brooklyn D.A.'s Office and the New York City Police Department, which brought about his false conviction and 16 years of suffering in prison."

Rudin noted in his statement that Block, during oral arguments on the dismissal motion, scheduled an April 8 trial date.

Rudin said he was now seeking expedited discovery, including "sworn, videotaped depositions" from Vecchione, other Brooklyn prosecutors that handled the case and Hynes himself.

In its own statement, the city noted the ruling narrowed Collins' claims.

"We are pleased the claims against the individual ADAs were dismissed and the claims against the City were narrowed. We expect to address the remaining claims through further motion practice after the discovery process or at trial," Arthur Larkin, senior counsel in the city Law Department's Special Federal Litigation Division, said in a statement.

The city was also represented by Assistant Corporation Counsel Elizabeth Krasnow.

A spokesman for the Brooklyn District Attorney's office did not respond to a request for comment.

But in a response to a recent "Village Voice" article—reiterated during an interview with the New York Law Journal prior to the release of Block's ruling—Hynes said when one of the witnesses recanted but withdrew the recantation, Vecchione was not present, nor did anyone make a record of the occurrence or tell Vecchione about the withdrawn recantation.