Queens Prosecutors Ignored Misconduct for Years. Can a New D.A. Change That? – The New York Times

In her first year as district attorney, Melinda Katz has led major culture shifts in the borough. But some hope for more.

The crimes were heinous, the punishments severe: A Latino man was sentenced to 40 years to life for murdering two people at a nightclub in 1993. A Black man was given 25 years to life for shooting a police officer two years later.

But in both men’s trials, officials now acknowledge, a prosecutor from the Queens County district attorney’s office illegally excluded women and people of color from the juries — the kind of misconduct that both defense lawyers and some of the office’s former prosecutors say was long overlooked.

The acknowledgment represented a marked shift: After documents revealed the discrimination last year, the first new district attorney in Queens in nearly 30 years, Melinda R. Katz, signed on to a motion to vacate the convictions and made plans to retry the cases. The move signaled a turning point within the office, long known among lawyers for its reluctance to admit mistakes and misbehavior.

“Queens was always way behind. There was very little you couldn’t get away with,” said Barry Scheck, a prominent criminal defense lawyer who is co-founder of the Innocence Project, an influential nonprofit that works to exonerate wrongfully convicted prisoners. “She’s sent a signal to lawyers across the city that she’ll change things.”

In her first year on the job, Ms. Katz has established a review unit for potential wrongful convictions in the borough, supported a total of four exonerations and stopped heavily prosecuting several categories of low-level, nonviolent crimes. She has garnered support from those who say that she has begun to usher in changes in an office that was long committed to a tough-on-crime philosophy.

Still, some defense lawyers in the borough said, Ms. Katz has not moved forcefully enough. The office’s historically lax approach to handling misconduct and its reluctance to discipline prosecutors may still linger, they say.

The inflection point in Queens arrives amid a fraught national conversation about the fundamental fairness of the nation’s criminal justice system. That debate has played out in protests in the wake of the killing of George Floyd that focused largely on policing. But it has also led district attorneys across the country to adopt a wave of changes — including efforts to limit cash bail and halt prosecutions for minor crimes — that are aimed at lowering racial disparities in criminal justice.

With violent crime surging in New York City during the pandemic, Ms. Katz, who was cast by progressives as the establishment-backed candidate in the race she won by just 60 votes, finds herself wedged between calls to upend the office and apprehension over the shifting approach to crime and punishment in the borough and across the country.

In Brooklyn, the district attorney, Eric Gonzalez, created a policy that makes an effort to tailor prosecutions to avoid the deportation or detention of immigrants charged with certain crimes. In Philadelphia, Larry Krasner relaunched a unit to take on both wrongful convictions and past sentencing errors. And in Los Angeles, George Gascón was elected to the office last year on vows to reopen old police shooting cases that the incumbent had declined to prosecute.

Under Richard A. Brown, who was the longest-serving district attorney ever in Queens when he died in May 2019, the office’s law-and-order dogma held firm for 27 years, even as other boroughs began to embrace change. A former Queens borough president, Ms. Katz entered a contentious Democratic primary that included Tiffany Cabán, a public defender who campaigned on the promise of progressive reform and was backed by Representative Alexandria Ocasio-Cortez and U.S. Senators Bernie Sanders and Elizabeth Warren.

Ms. Katz narrowly defeated Tiffany Cabán, the candidate with the most left-leaning platform in the race.
Gabriela Bhaskar for The New York Times

Some held tempered expectations for Ms. Katz, but experts and community leaders have praised the changes in Queens since her victory. Ms. Katz was the first district attorney in the city to charge a police officer under the state’s new chokehold law at a time when police violence was the subject of near-constant protests; she has stopped prosecuting most low-level marijuana arrests, which experts say disproportionately target people of color; her new hires last year were largely women and people of color in an office long dominated by white men.

And, on her first day in office, she launched a unit to probe claims of innocence.

Prosecutors in Manhattan, Brooklyn and the Bronx had all launched similar review divisions by 2016, while one came to Staten Island two years ago. But Mr. Brown had long resisted calls to formally establish such a unit, instead opting to assign those investigations to his senior staff.

Ms. Katz had a different view. “You’re still sitting in jail or prison for a crime you didn’t commit that’s now able to be looked at from a different lens and from a different technological standpoint — I can’t even imagine what that is like,” she said in a recent interview. “I want justice done right.”

She chose a former lawyer from the Innocence Project, Bryce Benjet, as its director — a decision experts called a positive sign as many national models for the units are led by those with similar backgrounds. In July, one of the unit’s investigations led to its first exoneration: Samuel Brownridge, who had spent nearly 25 years in prison, had his conviction thrown out after witness testimonies were undermined or recanted. Four months later, another man, Jaythan Kendrick, was released after DNA testing cast doubt on the testimony of an eyewitness and others offered new accounts.

Ben Hider/Associated Press for Innocence Project

While in prison, Mr. Kendrick recalled keeping tabs on the district attorney’s race and gaining hope as Ms. Katz and others supported the creation of a conviction integrity unit.

“I want to thank you because you kept your word,” Mr. Kendrick told Ms. Katz in a courtroom, minutes before his conviction was thrown out. “This day is possible because of you.”

In a recent interview, Mr. Kendrick and his lawyer, Susan Friedman, said that while Mr. Brown ran the office, efforts to have the case reassessed fell short. The original prosecutor on Mr. Kendrick’s case was involved in the review. When a witness spoke with lawyers, members of the office encouraged them not to cooperate further. Even after new DNA testing was presented, officials still insisted upon Mr. Kendrick’s guilt.

“It just was not going to happen with the prior administration,” Ms. Friedman said.

John M. Ryan, the former chief executive assistant in the office for more than two decades, said that Mr. Brown believed that correcting mistakes was “everybody’s job” — and was reluctant to hand the responsibility to a single unit.

He added that Mr. Brown had strengthened the training program for Queens prosecutors early in his tenure and prioritized misconduct concerns when they arose.

“There were few things that Judge Brown took more seriously than the idea of avoiding unjust prosecutions,” Mr. Ryan said. “To say that it wasn’t handled appropriately in the past would not be true. We had an excellent staff who knew they were going to be held accountable — and I believe they were.”

It remains to be seen how Ms. Katz will tackle prosecutorial misconduct. Between 1985 and 2017, one lawyer, Joel B. Rudin, found that judges had ruled that prosecutors in the office failed to disclose information to the defense or committed other misconduct in at least 117 instances.

Hilary Swift for The New York Times

Currently, roughly 80 cases are under review by the unit. And defense attorneys and experts say that how those with wrongdoing at their core are handled and what happens to prosecutors involved moving forward will be telling.

“A single instance of misconduct that goes undisciplined can poison the whole office,” said Mr. Rudin, who has tried several cases in Queens. “She has to make the prosecutors in the office believe she’s serious about enforcing ethical standards and rules of behavior, and that she’s not going to tolerate serious or intentional — or even reckless or negligent — violations.”

Shortly after starting in the role, Ms. Katz said she replaced most of the office’s executive staff. Prosecutors also recently completed training on implicit biases, she said. Still, Gothamist reported last year that several prosecutors whose past misconduct has led to mistrials and overturned convictions retained or advanced to top roles.

Ms. Katz said in an interview that if and when cases of misconduct are found, prosecutors will be put into a “vigorous” retraining program. “We make sure that they understand what they did wrong and how to make sure that doesn’t happen again,” she said.

Across the country, more than 75 conviction integrity units exist, but experts say they vary widely in effectiveness. The division in Brooklyn is often viewed as one of the most effective in the country with at least 29 exonerations since 2014. In Manhattan, the first borough to establish a formal review unit in 2010, 10 convictions have been vacated; in the Bronx, at least four people have been exonerated in the past five years.

The most successful units work to assess “system failures,” said Rachel E. Barkow, a law professor at New York University who is on an advisory panel for the division in Manhattan.

In some cities, however, she said the review units are “purely cosmetic” and never exonerate anyone or address past errors. Others are hindered, she added, because of low staffing or insufficient resources, which the division in Brooklyn has faced in recent years.

Some defense lawyers said they worried that the division in Queens has begun to show signs of those issues. John O’Hara, a lawyer in Brooklyn, filed the first application to the unit in early January. The case was for a man, Joseph Meyer, who was convicted of assault in an attack on an off-duty police officer in 2009.

But progress was slow, Mr. O’Hara said, and when the review was ultimately closed in early December, he felt several misconduct allegations went unaddressed.

He has since filed a motion with the State Supreme Court in Queens to have Mr. Meyer’s conviction thrown out.

“Me and my family had so much hope when she took office,” Mr. Meyer said in a recent telephone interview. “But then I’m sitting here the whole year and not hearing anything.”

Ms. Barkow said it is “huge red flag and a huge problem” when review units handle cases involving prosecutorial misconduct differently — with lengthier delays or unexpected dismissals. Still, experts agree that sufficient time has not passed to make a full judgment in Queens. Ikimulisa Livingston, a spokeswoman for the office, said that the case was “investigated in a transparent, expeditious and diligent manner,” especially given the constraints of the pandemic and the number of cases under review.

Ms. Katz separately pointed out the joint motion her office filed last month to reverse the convictions of the men found guilty in the nightclub killings and attempted murder of a police officer after discrimination in jury selection by a former prosecutor was uncovered. The lawyer, Christopher J. McGrath, had left the office by 1998 and did not respond to requests for comment.

Eight other cases tried by Mr. McGrath were also being reviewed, she said.

As she enters year two, additional exonerations and vacated convictions are expected. For Ms. Katz, top priorities include tackling a range of other longstanding practices in the borough, like requiring guilty pleas for participants in some programs that offer alternatives to incarceration, and further transforming the office’s culture.

“My ultimate goal is to make sure that the community and our office — and the police — have a relationship where we can work together,” she said.

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