This is Part 1 of a series. Read Part 2.
The murder case against Tony Bennett seemed pretty straightforward.
Shortly before midnight on May 7, 1994, police found a 26-year-old man in the foyer of an apartment building near Flushing, Queens. Jake Powell was near death, blood pouring from a gunshot wound, but he managed to speak the name of the man who had shot him: "Tony Bennett."
Bennett, a two-time felon, was eventually captured, convicted of murder, and sentenced to 25 years to life in prison.
But Bennett never served anywhere near that sentence. He has, in fact, been free since 2008 because Claude Stuart, the former Queens assistant district attorney who handled his case, violated a basic rule of law by withholding critical evidence from Bennett's attorney. A state appeals court overturned Bennett's conviction and released him after 13 years in prison.
That early release has freed Bennett to describe his role in a crime he had insisted for two decades he did not commit.
"He was wrapped up in a shower curtain in the corner of the bathroom, shivering and shaking," Bennett recalled of Powell, who Bennett said had terrorized his family for years. "He was saying all this, 'Please, please, don't hurt me, don't shoot, I'm sorry, I'm sorry.' And I said, 'Yeah, I'm sorry, too.' And I did what I had to do."
Stuart's wrongdoing in the Bennett case wasn't his only act of misconduct. He manipulated evidence in another case, and that conviction wound up being reversed by the courts, too. But his bosses took no action after that misconduct became known. A state disciplinary committee reprimanded Stuart, but that fact remained secret from the public. Indeed, Stuart's superiors did not act until another conviction was overturned, and Stuart was found to have lied to a trial judge about the whereabouts of a key defense witness.
That, at last, cost Stuart his job.
Stuart's career, across many years and with repeated abuses, helps demonstrate a broader truth: New York's system of attorney oversight is ill-equipped or unwilling to identify, punish and deter prosecutors who abuse their authority.
A ProPublica analysis of more than a decade's worth of state and federal court rulings found more than two dozen instances in which judges explicitly concluded that city prosecutors had committed harmful misconduct. In each instance, these abuses were sufficient to prompt courts to throw out convictions.
Yet the same appellate courts did not routinely refer prosecutors for investigation by the state disciplinary committees charged with policing lawyers. Disciplinary committees, an arm of the appellate courts, almost never took serious action against prosecutors. None of the prosecutors who oversaw cases reversed based on misconduct were disbarred, suspended, or censured except for Stuart. (Stuart declined repeated requests for an interview for this story.)
Nor were any but Stuart punished by their superiors in the city's district attorney offices. In fact, personnel records obtained by ProPublica show, several received promotions and raises soon after courts cited them for abuses.
The damage from prosecutorial misconduct can be devastating, not only allowing guilty people like Bennett to go free, but also putting innocents behind bars. In 10 cases identified by ProPublica, defendants convicted at least in part because of a prosecutor's abuse were ultimately exonerated, often after years in prison.
Shih-Wei Su was incarcerated for 12 years on attempted murder charges before a federal appeals court cleared him, finding that a prosecutor had "knowingly elicited false testimony" in winning a conviction. The city eventually paid Su $3.5 million. The prosecutor received nothing more than a private reprimand.
Jabbar Collins served 15 years in prison for a murder he didn't commit before his conviction was thrown out in 2010; Michael Vecchione, a senior Brooklyn prosecutor, had withheld critical evidence during trial. Collins has filed a $150 million lawsuit against the city. No action has been taken against Vecchione.
Last July, two men filed lawsuits for a combined $240 million against the city for wrongful convictions that a state appeals court found were won in part because Manhattan prosecutors had withheld evidence. The men served 36 years in prison, collectively. The prosecutor, who long ago left the district attorney's office, has not been publicly disciplined.
"It's an insidious system," said Marvin Schechter, a defense attorney and chairman of the criminal justice section of the New York State Bar Association. "Prosecutors engage in misconduct because they know they can get away with it." (Schechter said he was expressing his own opinion, not that of his bar section.)
New York City's district attorneys say concerns about misconduct — heightened by several recent high-profile cases — are largely misplaced.
Allegations of such practices are substantiated in only a fraction of the roughly 285,000 cases they handle each year, they assert. Even in those, they add, what courts deem misconduct often amounts to inadvertent error.
Top prosecutors also say their offices have taken significant steps to limit and expose misconduct, in part by establishing internal units that examine claims of abuse.
"The egregious cases don't mirror the larger universe, but are rather somewhat isolated," said John O'Mara, head of the Brooklyn District Attorney's Conviction Integrity Unit.
Across those years, there has been at least one constant: the inability or unwillingness to meaningfully punish the offending prosecutors.
ProPublica, in the latest analysis, examined the years 2001 to 2011, chiefly scrutinizing instances in which state or federal courts identified misconduct serious enough to throw out a conviction. The analysis also incorporated civil cases during those years, virtually all of which resulted in financial awards being given to the victims of such misconduct.
The analysis found a total of 30 cases that met those criteria. Four of them involved civil cases addressing harmful misconduct that took place as far back as 1985. Again, in all those cases, no prosecutor other than Stuart was seriously disciplined for misconduct.
Calculating the full extent and impact of prosecutorial misconduct can be difficult. More than 90 percent of criminal cases never go to trial, so the public has no way of knowing how prosecutors conduct themselves in the tens of thousands of cases every year that, for instance, end in plea deals.
Moreover, state appellate courts — in theory the first check on misconduct allegations — often criticize prosecutorial tactics but let convictions stand if they conclude the conduct did not decide the outcome of the case.
ProPublica identified more than 50 instances in which appeals courts essentially gave prosecutors such no-harm, no-foul free passes. In a 2009 ruling, for example, a court found that a Manhattan prosecutor should have disclosed a co-conspirator's statement that the defendant wasn't actually involved in the shooting he was charged with, but concluded there was "no reasonable possibility that the failure to disclose … contributed to the verdict."
Academics and defense lawyers say such rulings allow prosecutors to engage in bad practices as long as they don't result in unjust convictions.
"If you're in the Olympics and you're in a race and you win and then it's found that you took steroids, they take your medal away," said Larry Goldman, a former Manhattan prosecutor who is now a defense attorney. "No one says, ‘Oh well, it doesn't matter if you took steroids, you would've won anyway.'"
When courts and grievance committees shrug off problematic conduct, Goldman and others said, they miss opportunities to deter more misconduct before it worsens, often disastrously.
When prosecutorial misconduct goes unchecked, said Hal Lieberman, a former chief counsel for a New York grievance committee, it "undermines the integrity of the entire system."
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Stuart was assigned the Bennett case as he neared his 10-year anniversary with the Queens District Attorney's office, soon after being promoted to the Career Criminal Major Crimes Bureau.
Stuart had Powell's final words identifying his killer, and he notified Bennett's lawyer that those words would be the key to his prosecution.
But on the last day of the trial, Stuart produced a surprise witness: a man who testified that he, too, had heard Powell identify his killer.
The jury returned a guilty verdict.
Looking back, Bennett said, Stuart had "pulled a rabbit out of his hat."
A state appellate court took a dimmer view, finding that Stuart had "ambushed the defense by his deception."
The court overturned Bennett's conviction. Bennett, after pleading guilty to a lesser charge, was soon free.
Prosecutors' obligation to disclose potentially important evidence to defense lawyers is a bedrock principle of the justice system. Under the U.S. Supreme Court's 1963 Brady v. Maryland decision, prosecutors must disclose any evidence that is material to either the guilt of the defendant or the severity of the alleged crime. Under New York state court ruling People v. Rosario, New York prosecutors must turn over statements by witnesses who will give testimony.
But ProPublica's analysis showed that violations of these obligations were the most common form of serious misconduct by city prosecutors, who failed to meet these standards in more than half of the 30 cases reversed by state or federal courts based on misconduct.
Prosecutors said Brady and Rosario violations are almost always accidental and sometimes involve complex judgment calls about what evidence needs to be turned over and when.
"The decision as to what constitutes material that must be disclosed under Brady is not always simple to make and often subject to debate," John Ryan, the chief assistant district attorney in Queens, said in a letter to ProPublica. The case law governing Brady is always changing, he added, and sometimes even appellate judges disagree on what is required.
Dozens of current and former prosecutors told ProPublica they received vigorous training on how to make decisions on Brady, worked closely during trials with supervisors, and were urged to err on the side of disclosure.
But Schechter, the head of the criminal section of the state bar, has said the culture and training in the offices of prosecutors may sometimes lead prosecutors to skirt the rules in their desire to win victories in court.
"Assistant district attorneys do not emerge from law school with a genetic disposition to hiding Brady material," he wrote in a July 2012 letter to the bar association published in the New York Criminal Law newsletter. "Instead this is something which is learned and taught."
The letter triggered an explosive reaction: Bronx District Attorney Robert Johnson called Schechter's allegations "outrageous," and Schechter's own bar association section passed a resolution disowning his statements.
Yet a number of former prosecutors have made similar observations.
Mortimer Lawrence, Claude Stuart's former colleague at the Queens district attorney's office, testified at a disciplinary hearing for Stuart that supervisors bore some responsibility for Stuart's troubles.
"I know there to be an unspoken pressure on assistants to press the edges of discovery and evidence and just how far you go," Lawrence said in his testimony.
Stuart lost his job in 2002 and had his license to practice law suspended in 2005.
Ryan, the Queens chief assistant district attorney, stressed that once Stuart's supervisors knew of his misconduct, they moved swiftly to alert disciplinary authorities.
To critics, however, Stuart's pattern of abuses shows how much a prosecutor can bend the rules before suffering any consequences.
Over the course of his career, Stuart's tactics prompted appellate courts to toss two other convictions in addition to Bennett's and forced his superiors to abandon at least one other case, records show. He also had received a private letter of caution from a disciplinary committee related to one of the reversals, although his bosses say they were not aware of this.
Yet, until Stuart's forced resignation, there were no signs that Queens District Attorney Richard Brown saw him as a problem. Instead, Stuart had garnered a string of raises, promotions, and positive performance reviews, winning a reputation as an aggressive litigator, according to records and interviews.
"We have a broken system," said New York University legal ethics professor Stephen Gillers. "We disbar lawyers for taking two hundred dollars from a client's escrow account, even if they return it. But there are rarely consequences for someone who has stolen someone else's due-process rights and possibly put an innocent person in jail."
* * *
In the early 1990s, parts of Queens were plagued by Chinese gang violence. There were the White Tigers and the Green Dragons, grudges and guns.
In 1992 prosecutors charged Shih-Wei Su with ordering the attempted executions of two Green Dragons in a Bayside pool hall.
The star witness for the prosecution was man named Jeffrey Tom. Tom had agreed to testify that he heard Su order the shootings in exchange for prosecutors scaling back a criminal case against him.
But at trial, under questioning by Queens Assistant District Attorney Linda Rosero, Tom denied any deal with prosecutors existed. Rosero let the lie stand and then, in summation, lauded Tom's testimony as "truthful and honest."
Su, 19 at the time of his conviction, was sentenced to 16 to 50 years in prison.
It would take years, but the conviction did not survive. Su's lawyers successfully proved a deal had existed, and in 2003 a federal court overturned the outcome. The judges savaged Rosero, calling her conduct "repugnant to the Constitution."
Su filed a wrongful-conviction suit against the city, but he wanted Rosero punished, too. With the help of his attorney, Joel Rudin, he lodged a disciplinary complaint with the Second Department Grievance Committee. Rudin shared the correspondence with ProPublica.
To trigger investigations against prosecutors, grievance committees depend largely on reports from defense attorneys, who may be reluctant to come forward and antagonize a prosecutor with whom they must continue to work.
ProPublica interviewed eight current or former disciplinary committee officials, who said they recalled very few complaints filed about prosecutors.