Law professors sue city, DA Katz
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Brad Leventhal, left, a former prosecutor in the Queens DA’s office, was named in a prosecutorial misconduct grievance filed by AccountabilityNY, which says the city is trying to prevent them from publishing in a new lawsuit. Eagle file photo by Paul Frangipane
By Jacob Kaye
A group of law professors looking to shed light on prosecutorial misconduct in Queens and throughout New York City have taken legal action against the city and the Queens District Attorney after it took issue with the professors publishing complaints against prosecutors online.
The professors, alongside the Civil Rights Corps, filed a lawsuit in federal court last week, claiming their First Amendment rights had been violated when Georgia Pestana, the corporation counsel of the City of New York, sought to prevent the group AccountabilityNY from publishing grievances against prosecutors in full view of the public.
While the city claims that the grievance process, which is arbitrated by the court’s Attorney Grievance Committees, is confidential, the professors say all the information they’ve published is already public knowledge, having been established in the courts in previous decisions.
“Our position is that we actually have constitutionally protected free speech rights to put this information in the public realm, especially considering that we're not relying on any private facts,” said Justin Murray, a professor at New York Law School who signed onto the lawsuit. “We're taking the misconduct directly out of publicly available court decisions.”
AccountabilityNY, which is made up of law professors and criminal justice advocates including nonprofit Civil Rights Corps, recently published nearly two dozen grievances against current and former Queens prosecutors. The group says that because of the secrecy of the grievance committees’ process, it’s unclear how many prosecutors suffered any consequences for their misconduct, or even if a grievance had been filed against them in the past.
It’s part of a larger pattern, they say, where prosecutors are often given a pass, even when prosecutorial misconduct comes out in court.
“It's a pattern nationwide,” said Cynthia Godsoe, a professor at Brooklyn Law School.
Murray and Godsoe said that the group decided to first focus on Queens because they “needed to start somewhere,” but added that recent developments in the DA’s office made it a particularly good place to start.
In March, Queens District Attorney Melinda Katz’s Conviction Integrity Unit filed a motion to vacate the convictions of Gary Johnson, George Bell and Rohan Bolt. The three men had been wrongfully convicted in the 1996 murder of an off-duty police officer and a business owner.
Though the CIU did not accuse then-Assistant District Attorney Brad Leventhal of prosecutorial misconduct, then-Queens Supreme Court Administrative Judge Joseph Zayas, who granted the motion, felt differently.
“The stakes could not have been higher and the duty of care by the prosecution should have been correspondingly heightened,” Zayas said during the hearing. “The opposite occurred in this case … the District Attorney’s office deliberately withheld from the defense credible information about third-party guilt that is evidence that others may have committed these crimes.”
Leventhal, who led the prosecution of another person who was recently found to be wrongfully convicted, resigned from the DA’s office a few weeks later.
“There have been a number of publicized instances of misconduct out of the Queens District Attorney's office, in different venues from lawsuits, to criminal cases, to public statements,” said Peter Santina, the managing attorney of the prosecutorial accountability project at Civil Rights Corps. “That’s not to say we're singling out Queens – prosecutorial misconduct is widespread.”
Santina said the group was trying a “different approach” by publishing the grievances online, but that he didn’t expect the city to respond the way it did.
“I wouldn't say I knew exactly how the city would respond,” Santina said. “I think we were hopeful, though, that there's going to be a thorough investigation of all of these cases, as well as any others.”
Nick Paolucci, a spokesman for the City Law Department, said that the group of professors and advocates had gone through improper channels to lodge the complaints.
“Prosecutors who engage in misconduct should be held accountable, but the professors’ use of the confidential attorney grievance process to seek reform is contrary to the law,” Paolucci said in a statement. “Their frustration with their lack of progress to increase accountability through advocacy and the legislative process does not entitle them to misuse the attorney grievance process or file a frivolous lawsuit to bring attention to their goals.”
The Queens DA’s office directed the Eagle to the Law Department when asked for comment.
The professors say that shedding light on prosecutorial misconduct is important for several reasons. Chief among them is the fact that they say prosecutors have so much power over peoples’ lives and thus should be held to a very high standard.
“Prosecutors are law enforcement officials, and they're, in some respects, the most powerful of law enforcement officials,” Santina said. “I think your average person would assume that [prosecutorial misconduct] would be taken very seriously and there'd be pretty swift consequences. The fact that that's just not the case.”
Holding prosecutors to the highest standard, and punishing those who don’t meet it, is especially important now, they say. With violent crime on the rise in the past couple of years, political pressure to prosecute cases expediently may also be on the rise and may give way to the opportunity for errors.
“When you're in that kind of law and order obsessed political milieu there is a real temptation to cut corners on legal rules, to cut corners on according fairness and humane treatment toward criminal defendants as opposed to dehumanizing treatment,” Murray said.
That attitude toward public safety may have fueled some of the prosecutorial misconduct named in the grievances, many of which occurred when New York City was gripped by a high rate of violent crime.
“Our rejoinder to that is that it helps to explain why it happened, but it in no way excuses it,” Murray said. “If we want it to stop going forward then we need to put a foot down and say enough is enough.”
With the lawsuit, the goal remains the same – to push for more accountability when prosecutors are found to have committed prosecutorial misconduct.
“We want prosecutors to know that the era of zero accountability for misconduct is over, so that they will be more scrupulous about playing by the rules,” Murray said. “We want there to be repercussions for that misconduct, not for its own sake, but so that it will stop happening, and so defendants will be treated fairly and people won't be wrongfully convicted.”
