By Andrew Keshner (New York Law Journal)
March 5, 2013
Four years ago, Brooklyn District Attorney Charles Hynes ran unopposed as he waltzed to a sixth term as chief prosecutor in the borough with the most residents and the most crime.
Today, however, Hynes faces two opponents who argue, in the wake of overturned convictions and complaints about his alleged reluctance to prosecute sexual abuse in the ultra-Orthodox Jewish community, that the district attorney has lost credibility.
Moreover, Hynes' challengers—Abraham George and Kenneth Thompson—have raised impressive amounts of cash to take their demand for a change to voters in the Sept. 10 Democratic primary.
"When you can't trust a prosecutor is doing the right thing on every case, pursuing justice, they've lost their ability to lead," said George, a former Manhattan assistant district attorney. "The public has lost trust in [Hynes'] ability to prosecute cases."
"The people of Brooklyn have to have confidence that the criminal justice system is being run and operated based on integrity. They have to have faith in convictions that come out of the office," said Thompson, a name partner in the plaintiffs firm of Thompson Wigdor, who added that faith has been lost.
Hynes rejects such criticism and takes credit for a 73 percent reduction in Brooklyn's violent crime rate during his time in office, 1990 to 2011. He also speaks proudly of his "serious track record as an innovator for a range of programs," that, among other things, provide alternatives to incarceration and ease former inmates' reentry into the community.
In fact, Hynes, does not even view the current campaign as his toughest, instead citing his 2005 bid when he faced three opponents as he prosecuted then-Brooklyn Democratic Chairman Clarence Norman Jr. In that race, Hynes edged state Senator John Sampson, 41 percent to 37 percent.
Hynes said he learned from that experience and has been on an "education campaign" ever since, constantly visiting community groups and religious organizations to discuss his office's programs and services.
As a result, he said, he has been able to "dramatically" increase support in historically black neighborhoods like Crown Heights, Bedford-Stuyvesant and East New York.
Political observers say that gaining the support of such groups is important in light of the borough's changing demographics. For example, Hynes has always been able to count on the borough's Irish-Americans, but by 2010, their number had declined to 80,000 from 114,000 in 1990.
According to the latest campaign spending reports, Thompson has raised $341,568 and George $210,777 since announcing their candidacies last year. Hynes, by contrast, had raised only $27,275 in the last six months, although he had more in the bank than either challenger (NYLJ, Jan. 17).
Hank Sheinkopf, a political consultant and lobbyist with no role in the race, said Thompson and George brought in an "extraordinary amount of money in a short period, which means no one's afraid of Hynes anymore."
Michael Tobman, another political consultant and lobbyist, said his "gut feeling" was that Hynes would be reelected because there is "no compelling reason" for voters to abandon him. But he added that Hynes could lose, and he had to concentrate on turning out supporters "block by block, union by union, neighborhood by neighborhood." Tobman is not involved in this race, but ran the campaign of one of Hynes' 2005 challengers, attorney Arnold Kriss.
Hynes himself predicted that, with the race underway, his contributions would pick up.
115,000 Cases Annually
Hynes, now 77, began his career at the Legal Aid Society in 1963. He moved to the Brooklyn District Attorney's Office six years later, rising to first assistant district attorney by 1973.
In 1975, he was tapped as special state prosecutor to root out nursing home fraud. Later, Hynes was appointed the special prosecutor to handle the high-profile criminal case arising from the racially charged 1986 murder of Michael Griffith in Howard Beach, Queens.
In addition to his campaigns for district attorney, Hynes made an unsuccessful run for attorney general in 1994 and for governor in 1998.
Today, he oversees an office with some 1,100 staff, including 500 prosecutors handling more than 115,000 misdemeanor and felony cases a year.
Both challengers have prosecutorial experience, but neither has ever run for public office.
Thompson, 46, is a former assistant U.S. attorney in the Eastern District, where he obtained the high-profile conviction of a New York City police officer charged with beating and torturing Haitian immigrant Abner Louima. Another officer pleaded guilty during trial.
In private practice, Thompson represented Nafissatou Diallo, the hotel maid who claimed she had been raped by former International Monetary Fund chairman Dominique Strauss-Kahn. After the Manhattan District Attorney's Office dropped the criminal case, Thompson obtained a civil settlement for her.
Thompson's mother, Clara, was one of the first women on patrol in the New York Police Department, serving in Harlem and the Bronx.
His mother's 21-year NYPD career gave Thompson "a powerful example of courage and sacrifice, justice, equality and fairness" that he says he carries with him and explains why he "stand[s] up for people who need justice."
Thompson plans to roll out more specifics about his plans in the coming months, but, for now, he says gun violence will be among his top priorities. He also said he would create a unit to prosecute labor law violations and promised to bring the "best and brightest" prosecutors to Brooklyn.
He also criticized Hynes for an "unacceptable" felony conviction rate of 55 percent in 2011. Hynes said focus on that statistic alone is misleading because many dismissals are granted where defendants participate in alternatives to incarceration.
George, 34, is the son of Indian immigrants and a lifelong Brooklyn resident. He worked in the Manhattan District Attorney's Office for eight years before resigning last summer to focus on the campaign.
At one point he was assigned to the Office of the Special Narcotics Prosecutor and handled cases citywide, giving him a look at law enforcement in Brooklyn. He said Hynes' office is presiding over "revolving door" justice where people are arrested, convicted and released to commit more crimes.
George said he would prosecute low-level marijuana possession cases as violations and demand that police officers personally swear to arrest complaints to counter an "excessive" number of criminal cases arising from police use of the stop-and-frisk technique.
Thompson called stop-and-frisk tactics "a valuable law enforcement tool if used right." But both he and George criticized Hynes for not speaking out about purported overuse of the practice.
Hynes "has never once said a single word about whether this practice is right or wrong," Thompson said in a statement, pointing to more than 56,000 stops that occurred in East New York and Brownsville in 2011—"most of whom were young men of color who had done nothing wrong."
Hynes said stop-and-frisk policies are "a police decision" over which he has "no control." But he said he is trying to lessen "anxiety" for teens and their parents when the teen is "unnecessarily arrested" for low-level marijuana possession.
Hynes said his office offers an adjournment in contemplation of dismissal in such cases and is working with the courts and the police to have those dispositions handled quickly at precincts rather than at the courthouse.
As district attorney, Hynes has instituted about 30 programs that provide alternatives to incarceration and ease community reentry for former inmates.
"The easiest thing we do is put people in jail," he said. "It does not take a lot of intellect."
Dawn Ryan, attorney-in-charge of the Legal Aid Society's criminal defense office in Brooklyn, said Hynes' office has "emphasized the importance of community outreach" and has "collaborated" with the defense bar, churches and various public entities.
He is also credited for his office's open-file discovery policy, viewed as the "best" in the city, said Barry Scheck, codirector of the Innocence Project and a professor at the Benjamin N. Cardozo School of Law.
If reelected, Hynes said he will expand community courts—establishing one in Brownsville in two years and scouting a location for another to add to the current Red Hook court—and broaden eligibility for his reentry programs.
Both Thompson and George said that, if elected, they would examine the benefits of each program.
"Whatever is effective, obviously we intend to continue and improve," said Thompson.
Likewise, George said he would "keep everything that's working," pointing to the open-file discovery, alternatives to prison and reentry.
But while crediting Hynes for "some progressive programs," George said "the bad outweighs the good" in the way Hynes has run his office.
The challengers and other critics take a negative view of how Hynes has handled sexual abuse within the ultra-Orthodox Jewish community, accusing him of soft-pedalling the problem at the behest of politically powerful rabbis. A 2008 editorial in Jewish Week, for example, charged that his stance ranged from "passive to weak-willed."
In 2009, Hynes established Kol Tzedek, which strives to encourage victims of sexual abuse to come forward. But he has been criticized for declining to publicize the names of defendants in pending matters and sometimes after their conviction. (Cases occur in open court on a public calendar, and the office will confirm that individuals face charges if asked.)
Both Thompson and George hammered Hynes on his approach.
What is needed, said Thompson, is "one standard of justice for all."
"The biggest problem with the lack of disclosure is there's no transparency in government, no idea what he's done, what his record is," said George.
But Hynes defends the approach.
"Our cases fell apart because in this community, you are shunned. The level of intimidation was very, very tough," said Hynes.
"The claim I was going easy on the ultra-Orthodox community is bizarre," he added. "By the time there was any media interest in Kol Tzedek, 96 people were in handcuffs." He noted that 116 ultra-Orthodox community members have been prosecuted under the program.
Perhaps the toughest criticism against Hynes has come in cases where defendants served decades in prison only to be released amid accusations that his prosecutors were guilty of misconduct.
Eastern District Judge Dora Irizarry (See Profile), who vacated the murder conviction of Jabbar Collins, blasted as "sad," "shameful" and "beyond disappointing" what she regarded as the Brooklyn office's lack of remorse toward allegations prosecutors had withheld evidence from the defense, coerced witnesses and lied to the court and defense (NYLJ, June 9, 2010).
The office conceded in court that a Brady violation had occurred when it failed to tell Collins' attorney of a witness' temporary recantation, but was unable to say which prosecutor was responsible and, in any case, said the oversight was unintentional.
In a recent interview, Hynes acknowledged that "no question a Brady violation" occurred, but he continued to defend the performance of his office, and, in particular, that of Michael Vecchione, who steered the Collins' trial and is now the head of Hynes' rackets division.
Hynes said it "is beyond my understanding" how Irizarry reached the conclusion that Vecchione was guilty of misconduct.
Eastern District Judge Frederic Block (See Profile) recently let Collins' civil suit against the city proceed, saying he had presented sufficient evidence that Hynes had been "deliberately indifferent" to "underhanded tactics" by his prosecutors as to encourage such tactic (NYLJ, Feb. 19).
A trial date will be scheduled for some time this fall, probably after the Democratic primary.
In an interview before Block's ruling, Hynes said that during oral arguments in the Collins case, Block had criticized his office for not disciplining Vecchione.
"He took that from Judge Irizarry's misstatement. He did nothing on his own," said Hynes.
In another recent case, Eastern District Judge Nicholas Garaufis (See Profile) vacated the murder conviction of William Lopez, calling the case "rotten from day one" (NYLJ, Jan. 17).
Hynes said the office is appealing that decision.
Thompson and George have used such rulings as one of the principal reasons Hynes should be retired.
"We cannot have that in Brooklyn," said Thompson. "These are acts that are 'shameful.' That's why the people of Brooklyn deserve a new D.A."
George called wrongful convictions "a huge problem," and pledged to overhaul a conviction integrity unit he called "a toothless tiger."
Hynes bridles at what he regards as criticisms of his integrity. He said that "tens of thousands of cases" have come through his office under his watch and there was "not an ounce of truth" to assertions his office had been "repeatedly criticized" for ethical lapses. To the contrary, he said he has fired four prosecutors for misconduct.
Scheck said that Cardozo's Innocence Project has handled "quite a few" post-conviction cases with Hynes' office. To obtain a 2002 exoneration, he said that all he had to do was to present the DNA evidence to Hynes over the phone.
Hynes "didn't even wait for a motion to be filed," said Scheck.
While he did not express an opinion on the recent cases, Scheck said, "It's been my experience on many occasions he's accessible and brings people in. He can be very hands on about these things."
Rudin said that such sensitivity has not been evident in the Collins case and other matters he has examined. He noted that the Innocence Project cases hinged on DNA evidence "and a lot of those cases are open and shut."
The cases Rudin takes on involve issues like the handling of Brady material and how interrogations are conducted, raising doubts about the fairness of prosecutors.
Scrutiny on these topics, said Rudin, was "more threatening to the D.A. than a case involving DNA, where the issue is not whether prosecutors are to blame but whether there's evidence nobody knew about that proved the defendant innocent."
Hynes remains undaunted by the criticism of his office and by the difficult campaign that confronts him.
"It's a lot easier to run unopposed," he acknowledged. "But I've been a fighter all my life. I look forward to the struggle and I have absolutely no doubt I'm going to win the primary."