I turned Mr. Paul in on these charges, and based on the facts that I have been presented, the Commonwealth is overreaching on this case. Steven Townsend
By Richard Gazarik and Renatta Signorini
Published: Tuesday, April 29, 2014, 4:06 p.m.
Updated 6 hours ago
Two people were arrested on Tuesday on charges of providing the heroin that killed a 24-year-old Delmont man in February and then removing syringes and other evidence from the house.
Ryan Robert Paul, 25, of Murrysville allegedly sold heroin to Joshua Perne on Feb. 15, according to an affidavit of probable cause.
Through a review of Perne’s cellphone calls and text messages, police learned that Lisa Lynn Kaciubij, 39, of Delmont contributed money toward the purchase.
Paul and Kaciubij were arraigned on charges of drug delivery resulting in death and tampering with evidence.
The legislature recently removed intent from the state law, making it easier for prosecutors to charge a drug provider with third-degree murder.
District Attorney John Peck last month said he and the state police are sending investigators to every overdose death to determine whether anyone can be prosecuted under the revised law.
“There are at least two more investigations pending,” Peck said.
Paul and Kaciubij are the second and third people to be charged with the offense since February, when county detectives arrested Kyland Napper, 20, of Wilkinsburg for criminal homicide in the March 2012 death of Sage Capozzi in a Hempfield hotel room. Napper is accused of selling Capozzi the fatal dose of heroin. Napper is awaiting trial in Westmoreland County.
When Delmont Officer Blake Danowski arrived at Kaciubij’s home on Lou Anne Lane at 7:32 p.m. Feb. 15, she told him she awoke to find Perne unconscious. She said she tried to rouse him for 20 to 30 minutes by slapping his face and shaking him. But Danowski learned from county 911 dispatchers that Perne “may have been in a state of needing medical attention for at least two hours,” Danowski wrote in the affidavit.
When Danowski pressed Kaciubij about the time, she admitted she waited about two hours before calling for medical aid.
Kaciubij repeatedly denied that she and Perne were addicts and said she waited to call an ambulance because she was “stressed out,” Danowski said.
Delmont police Chief Tim Klobucar said county detectives and agents from the Attorney General’s Drug Task force helped in the probe. Agents obtained copies of cellphone calls and text messages between Kaciubij and Paul in which they allegedly discussed buying a brick of heroin, which is 50 bags, and whether Perne was “good with money.”
Paul allegedly delivered the heroin to Kaciubij’s home and left. When Kaciubij found Perne unconscious, she made two calls to Paul. He returned and helped her remove four syringes and several empty stamp bags that contained the heroin, according to the affidavit.
Later that day, an undercover task force agent purchased heroin from Paul. He was arrested and admitted to selling the heroin to Perne and helping to remove the evidence, according to the complaint.
In a separate case, Paul was charged with aggravated assault and attempted homicide for stabbing a man in the neck, nearly severing an artery, outside a Delmont bar on April 12, according to a separate complaint filed before District Judge Charles Conway of Murrysville.
Kaciubij is free after posting $10,000 bond. Paul is being held in Westmoreland County Prison in lieu of $100,000 bond.
By Walter Brasch The Public Record Jul 6th, 2012
Politics continues to threaten the health and welfare of Pennsylvanians.
The latest is how the Republican-dominated legislature and Gov. Tom Corbett separated one of the wealthiest and more high-tech/industrial areas of the state from the rural areas.
Less than a week before the 2011–2012 fiscal year budget was scheduled to expire, June 30, the majority party slipped an amendment into the 2012–2013 proposed budget, (SB1263), to ban natural gas drilling in a portion of southeastern Pennsylvania for up to six years. The South Newark Basin includes portions of Bucks, Montgomery, and Berks counties, and could provide at least 360 billion cubic feet of natural gas, according to estimates by the United States Geologic Survey.
Only an e-mail blast by anti-fracking activist Iris Marie Bloom and a short AP story the day before the budget was passed alerted Pennsylvanians to the amendment that gives special consideration to the suburban areas of Philadelphia.
High volume horizontal hydraulic fracturing, commonly known as fracking, is a process that injects under heavy pressure as much as 10 million gallons of water, sand, gases, and chemicals, many of them known carcinogens, into a rock formation as much as 10,000 feet below the earth’s surface to open channels and force out natural gas and fossil fuels. However, numerous studies have concluded that the process of fracking to extract natural gas poses significant problems to the health of citizens and their environment.
In his first budget address, Corbett declared he wanted to “make Pennsylvania the hub of this [drilling] boom. Just as the oil companies decided to headquarter in one of a dozen states with oil, let’s make Pennsylvania the Texas of the natural gas boom.”
The push by Corbett and the Republicans in the Legislature that led to the enactment of the highly-controversial Act 13 to open gas drilling was possibly not only because they favor corporate development but because it was also payback for extensive campaign contributions by the natural gas industry. Corbett had taken more than $1.6 million in contributions from persons and PACs associated with the natural gas industry, according to data compiled by Common Cause.
Rep. Brian L. Ellis (R-Butler County, Pa.), sponsor of the House bill, received $23,300. Sen. Joseph B. Scarnati (R- Warren, Pa.), the senate president pro-tempore who sponsored the companion Senate bill (SB 1100), received $293,334, according to Marcellus Money. Rep. Dave Reed (R-Indiana, Pa.), chair of the majority policy committee, received $105,732; Rep. Mike Turzai (R-McCandless, Pa.), majority floor leader, received $79,100. Of the 20 Pennsylvania legislators who received the most money from the industry in the past decade, 16 are Republicans, according to Common Cause.
The Republican legislators who enthusiastically supported Act 13 but then created an amendment to exempt a part of the state, claim the amendment was needed to give time to better study the effects of fracking. “We basically said we didn’t know [the South Newark Basin] was there before when we did Act 13,” said State Sen. Charles T. McIhnnerey(R- Doylestown), sponsor of the amendment. However, the presence of natural gas in southeastern Pennsylvania wasn’t exactly a secret; energy companies had been active for several years in the region. McIhnnerey toldphillyburbs.com, “We need to slow this down until we can do a study on it—see what’s there, see where it is, see how deep it is, study the impact, get the local supervisor’s [sic] thoughts on it.”
“Where was our study?” demanded State Rep. Jesse White (D-Washington County), who actively opposes Act 13 and has been trying to get responsibility on the part of the Industry and the state Legislature regarding drilling in the Marcellus and Utica shales. “We were here four months ago [when Act 13 was passed] under the guise of, we had to have uniformity, we had to have consistency, we needed to be fair,” said Rep. White, “and now, four months later, we’re saying, ‘Maybe, for whatever reason, we’re going to give a few people a pass.’”
Karen Feridun, founder of Berks Gas Truth, and one of the state’s more active opponents of fracking, says, “Studies are not being conducted before drilling begins anywhere else in the state . . . nor are studies being conducted on the potential impacts of the pipeline operations already coming here [to Berks County].”
David Meiser, chair of the Bucks County Sierra Club, said the Legislature “should either exempt all counties from Act 13 and not just try to get special treatment from Sen. McIlhinney’s core area, or repeal the law entirely.”
Sen. McIhnnerey proudly noted the last-minute legislation “makes good on my promise that Act 13 was not intended to apply to Bucks County.”
By his own words, it is time for the Republican majority, so willing to expose rural Pennsylvania to the effects of fracking, to now honestly answer two significant questions.
The first question to the Republicans is, “Why do you support a state law that discriminates against the rural counties, while you support a special exemption that protects the health and welfare of the urban and suburban counties that have many of the state’s most powerful and wealthiest constituents, including the head of the Department of Environmental Protection and the lieutenant governor?”
The second question is, simply, “How much more money will it take to continue to buy your loyalty to corporations, the powerful, and the affluent?”
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Walter Brasch, recipient of the Pennsylvania Press Club’s lifetime achievement award, is a syndicated columnist, author of 17 books, former newspaper and magazine reporter and editor, and professor emeritus of mass communications. His current book is the critically acclaimed novel Before the First Snow, which discusses health and welfare issues in energy exploration. His next book is about health, environment, and political corruption associated with the natural gas industry.
HARRISBURG, Pa., Oct. 25, 2012 /PRNewswire-USNewswire/ — Governor Tom Corbett today signed House Bill 135, the second phase of the Justice Reinvestment Initiative that will redirect funds from corrections to communities.
Corbett also signed into law several other pieces of legislation, all related to Pennsylvania’s criminal justice system.
“These reforms are all part of a philosophy that says justice, in order to work, must be administered with firmness, compassion and common sense,” Corbett said. “We need to be smarter, more adaptable and more determined to solve crime and prevent crime.”
Accompanied by Secretary of Corrections John Wetzel, several members of the General Assembly and others who sponsored or advocated for the legislation, Corbett signed the bills into law today at Harrisburg Area Community College.
Wetzel, along with the lawmakers, Sens. Stewart Greenleaf (R-Bucks), Dominic Pileggi (R-Chester), Daylin Leach (D-Delaware), as well as Reps. Ron Marsico (R-Dauphin), Thomas Caltagierone (D-Berks) and Glen Grell (R-Cumberland), were all outspoken advocates of Justice Reinvestment.
In January, Corbett established a working group, including cabinet members, lawmakers from all four legislative caucuses and local criminal justice leaders. With support from the Council of State Governments, the Pew Center on the States and the Department of Justice, the group studied Pennsylvania’s current judicial system and recommended ways to make it more efficient and effective.
Once implemented, funds generated from savings in the state prison system can then be redirected back to local communities to be used for law enforcement, probation, parole and victims’ services.
Also attending today’s event with the governor were cadets from the 102nd class of HACC’s Municipal Police Academy. Graduates of the academy earn certification to work for Pennsylvania’s municipal police departments.
In addition to the Justice Reinvestment Initiative, Corbett also signed the following legislative bills that passed this term:
House Bill 815 – This legislation amends the crimes code to broaden penalties, further providing for the prosecution of the sexual abuse of children and providing for the offense of transmission of sexually explicit images by a minor, also known as sexting.
House Bill 898 – Restores a five-year mandatory minimum sentence for those convicted of making repeat straw purchases of firearms. Earlier this year in Montgomery County, Plymouth Township Police Officer Brad Fox was shot and killed by a man who purchased an illegally acquired gun.
House Bill 1121 – Provides sentencing enhancements for crimes of violence or drug dealing committed in association with a criminal gang.
House Bill 2400 – This updates Pennsylvania’s wiretap law, to reflect new technology and further provide for definitions of the law, as well as the possession, sale, and distribution of devices.
Senate Bill 86 – Updates the Motor Vehicle Code’s chop shop language, offering a broader definition to include vehicles, trailers and semitrailers, as well as outlining specific guidelines for inspection and searches of garages and repair shops.
House Bill 1794 – Act providing for HIV-related testing for certain sex offenders. This brings Pennsylvania into compliance with the Violence Against Women Act, allowing for the testing of certain sexual offenders within 48 hours after criminal information is filed.
House Bill 235 – This legislation provides for the National Human Trafficking Resource Center Hotline Notification Act; imposing duties tubemate for pc
on the Pennsylvania Commission on Crime and Delinquency to develop a response plan to help victims.
Senate Bill 850 – Provides sentencing exceptions for minors convicted of murder, providing options for judges rather than the mandatory life in prison; expungement for certain juvenile offenders, sentencing enhancements for murder of a child under the age of 13 and provides the victim advocate with the authority to advocate for victims of juvenile crimes.
Senate Bill 941–Increases fines for public drunkenness and underage drinking. The bill also makes it a summary offense if a person less than 21 years, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports alcoholic beverages. Currently a summary offense carries a fine of not more than $300 unless otherwise provided and this legislation increases it to $500 for the first offense and $1,000 for second and subsequent offenses.
No gun was found because he had 20 minutes to toss it. After he was shot, he ran 100 yards, jumped 2 fences and crossed through multiple high brush areas. Moreover, there were so many bystanders around…In Homewood, that gun was picked up immediately.
October 30, 2013 11:01 AM
PITTSBURGH (KDKA) – An armed security guard accused of shooting a robbery suspect in Homewood earlier this month was in court for a preliminary hearing today.
John Carter, 53, of Verona man is charged with aggravated assault after shooting a man, who allegedly robbed a delivery truck in Homewood.
“He believes and I believe and I think everyone will believe in the end, that he did the right thing yet he’s in the position where he’s in the box trying to prove his innocence,” defense attorney Steve Townsend said.
On Oct.2, Edward Brown allegedly grabbed a money bag out of a delivery truck at Triangle Candy and Tobacco.
Carter, working for Triangle as a guard, gave chase. He opened fire on Brown, striking the 32-year-old in the abdomen.
“This area where this took place in Homewood, it’s like Afghanistan, it’s Bosnia. Shootings there are almost a daily occurrence,” Townsend said. “Someone’s threatening you with bodily force and you’re in fear of serious bodily injury, you have to do what you have to do to protect yourself and that’s what happened.”
Carter, a 16-year veteran and qualified to carry a firearm, told police Brown turned around and reached for his waist.
Carter thought he had a gun and fired. However, there was no gun.
Carter told police a bystander yelled that Brown had a gun, but videotape showed Brown, who would be charged with robbery, never turned around and never had a gun. Brown survived his injuries.
“I believe that he’s innocent. I don’t believe that he committed a crime and I believe that that will come out in the end. Unfortunately, he’s left in the situation where he’s probably going to have to take this case to trial,” Townsend said.
Carter remains free on bond and continues to work as an armed security guard.
I am grateful for the invitation to speak once again to members of the New York City Bar Association, this time on a topic that has developed and tempered in light of my experience in two and one-half years as District Attorney.
As prosecutors, we have the opportunity to make a day-to-day impact on the lives of everyday citizens is unparalleled in the profession. But our decision-making is not bound by the single-minded wishes of a particular client. Instead, in the familiar words of Justice George Sutherland in Berger v. United States, our “interest . . . in a criminal prosecution is not that [we] win a case, but that justice shall be done.”
But what does it mean to say that justice has been done in an individual case? I believe that prosecutors should be among the most skeptical actors in the criminal justice system about what that concept means and how our decision-making process gets us there. Otherwise, we risk the phrase “doing justice” devolving into an empty shibboleth. I have always believed this, but my perspective is informed by my experience in the 20 years after I left the DA’s office in the late 1980’s, during which time I practiced criminal defense in federal and state courts around the country.
As a prosecutor, I am committed to guarding public safety zealously; but my experience as a defense lawyer and, more generally, as a member of the Bar, has shaped my views about how to define the culture and conscience of a prosecutor’s office as the District Attorney.
And that is what I would like to talk about today.
Every DA’s office has its legends. When I joined the office in 1982, the Wyllie-Hoffert murder case, was one. The case had been prosecuted by District Attorney Frank Hogan, nearly twenty years earlier, in 1963.
It was a notorious and brutal murder. Roommates Janice Wylie, a researcher at Newsweek magazine, and a school teacher Emily Hoffert, were found stabbed to death in their apartment on East 88th Street in Manhattan. It was the early 60s and young professional women – called “career girls” at the time, were coming to New York City in large numbers. The physical assault was savage. There was evidence that Wylie had been sexually assaulted. The bodies were discovered by their roommate, returning home one evening. She knew immediately ? perhaps it was the unnatural quiet in the apartment ? that something was wrong. As she walked further into the apartment, she found her murdered roommates ? stabbed collectively more than 60 times. This was every parents’ nightmare, and the public uproar over the murder was intense.
The crime went unsolved for months, until the police arrested a man in Brooklyn on an unrelated case, but who in the process of that arrest gave a detailed confession to the crime. His name was George Whitmore. He was African-American, and unemployed.
Frank Hogan filed an indictment against George Whitmore for the crimes. But after indictment, Hogan began to have doubts about the confession. It turned out, Mr. Whitmore had a mental disability. Despite having a defendant and a confession in a high pressure case, Hogan launched a far-reaching re-investigation of the case, an investigation that led to the defendant’s exoneration, and dismissal of the indictment in 1965.
The point of the story? When I arrived as an Assistant DA, young attorneys were told that the Wyllie-Hoffert exoneration represented the highest traditions of the office; and, in fact, even before we joined the office, we were told in the office’s recruiting materials and throughout the interview process that the job of an assistant district attorney was not simply to seek convictions, but to seek justice.
When I returned as the District Attorney, I intended to continue and build upon the traditions of fairness and integrity that have defined and distinguished the office. I would like to share with you how ? today ? we face the hard questions of conviction integrity, legal ethics, prosecutorial discretion, and fairness to the accused.
Although my office is different from most in some regards – the exceedingly high volume of cases we handle, and the variety of matters we prosecute, including murders, sex crimes, financial crimes and cyber crimes – the core questions we face in defining our prosecutorial conscience and culture are much the same as those faced by any prosecutor’s office.
What does it take for a prosecutor to go forward with a case? Is it different for the initial charging decision versus the decision to take a case to a jury? When does justice require dismissing a case? What is the interplay between a jury verdict of guilty and a credible post-conviction claim of innocence?
The answers to these questions are not found in the law, or even our ethics rules. Instead, they are defined by values of conscience and culture, and a healthy skepticism about what it means to do justice in any given case.
But as you all know, more and more in the 21st century, our prosecutorial choices are informed by science. Indeed, any discussion about the role of the modern prosecutor’s office cannot proceed very far without addressing the revolution wrought by the extraordinary reliability of DNA evidence, and more broadly, the rise of the exoneration movement. DNA exonerations have had an impact that reaches far beyond giving a falsely convicted defendant his or her freedom. They have shown all of us that an innocent person can land in prison, despite the best efforts of a prosecutor, a judge, and a jury.
The stakes here are obviously high – for innocent defendants wrongfully convicted; for victims, who want finality in the face of a conviction; and for the legitimacy of the criminal justice system as a whole. For this reason, I believe that prosecutors must join other leaders in this arena to examine closely what can lead to wrongful convictions, and to take steps to minimize the chance they occur.
My answer was to establish in 2010 the Conviction Integrity Program within our office, a step unprecedented for a prosecutor’s office in New York State at that time, and with only a few previous efforts having been made around the country. It is led by a senior assistant district attorney, Bonnie Sard, who serves as Chief of the Conviction Integrity Program, and who is here tonight. Our program has two main parts. First, with respect to what we sometimes call the “front-end” of the process, after much study and evaluation, we put in place new policies, procedures and training to further guard against unjust prosecutions.
And second, on what we call the “back end,” we instituted a program to review convictions – and, occasionally, pending prosecutions – in which the defense has raised a claim of actual innocence.
With respect to the front end – preventing wrongful charging decisions and convictions – we began by assembling teams of some of our most thoughtful and experienced assistant district attorneys, as well as a panel of outside advisors ? including Barry Scheck, former U.S. Attorney Zachary Carter, retired New York Court of Appeals Judge Howard Levine and Fordham Law Professor Bruce Green.
We asked them to address particular issues identified in nationwide analyses of exoneration cases. The teams addressed areas such as eyewitness identification, use of jailhouse informants, interrogation and confessions, evaluation of police testimony, and preservation and disclosure of evidence that is favorable to the defendant. Two different groups – inside and outside experts – worked together to examine best practices in areas of documented concern.
Among other things, each team produced a series of uniform questions to systematize our initial analysis of cases. For instance, in eyewitness testimony case, particularly those involving one witness, our guidelines now explicitly direct the assistant district attorney, at the outset of a case, to analyze the witness’s opportunity to view the perpetrator during the crime; it directs the prosecutor to preserve the witness’ first written or oral description of the perpetrator, and to investigate in detail any photographic or corporeal identification of the defendant. The guidelines encourage the assistant to find independent evidence, such as cellphone tower records, that might place the accused at the scene of the crime, or that might establish an alibi.
Similar directives guide assistants in determining whether they are fulfilling their obligations to disclose favorable information to the defense. Most bureau supervisors now review the answers to these questions with ADAs at a fixed point in the life of the case, for example, when the case is adjourned for trial.
This front-end of our Conviction Integrity Program is not limited to checklists and paperwork. We have added a “conviction integrity” component to each of our major training sessions. So, for example, young assistants receiving training on grand jury practice or the handling of domestic violence cases will be trained on ethical issues relating to specific practice areas.
Another practice that we have established, which has been extremely successful, is to hold “round tables” for major or complex cases. Before presenting these cases to the Grand Jury, homicides and other major cases frequently are presented to a small group of senior ADAs, who thoroughly vet the facts and investigative steps in the case.
The idea is simple: reduce the risk of prosecuting the wrong person, and strengthen the cases where we believe we have identified the actual perpetrator.
Do these new protocols work? I certainly believe so, although one challenge thus far has been to devise a metric to answer that question with data. But one thing is already clear – the very process of examining our procedures, of trying to articulate and systematize our best thinking, and to put it in front of our assistants in a synthesized form, has been critical to the evolution of the conscience and culture of our office. It is part of the way in which we transmit our values to new prosecutors. It reminds them at a very practical level of what are otherwise just high-minded ideals, that our duty is to do what is right in every case, wherever that leads.
But careful prosecutors must go even further to satisfy themselves that they are doing right; because we know that even conscientious prosecutors sometimes get it wrong. One lesson learned from the exoneration movement is that relatively few unjust convictions are the result of blatant prosecutorial misconduct. Although those cases make headlines and spark public outrage, they mask a more complicated challenge. Far more wrongful convictions, I would warrant, come from well-intentioned prosecutors who failed to investigate a lead, or were insufficiently skeptical of a witness’s testimony.
And so, when we speak of the conscience and culture of a prosecutor’s office, we have learned much from our examination of best practices, and from the work of the exoneration movement. We believe that a healthy skepticism, good, sound procedures, and an appreciation of the history of what has gone wrong at times in the past, are the prosecutor’s best protections against the possibility of convicting the innocent, and the surest path to ensuring the integrity of convictions.
But what about concrete cases, in which, typically, a defendant who has been convicted raises a new claim of actual innocence? This is what we call the back-end of our Conviction Integrity Program.
We have put in place a procedure by which every post-conviction claim of actual innocence we receive is also standardized, beginning with a case review by the Chief of the Conviction Integrity Program, who reports directly to me. If she believes there is no miscarriage of justice, nor otherwise any need for further investigation, she forwards her conclusion to me with a recommendation that no further action be taken. I review it, speak with her, and I may or may not agree.
If she believes that a reinvestigation is appropriate, a decision I do not second-guess, we reassign the case to an assistant district attorney other than the one who originally handled the case. This reassignment carries with it absolutely no implication that the original assistant committed any impropriety whatsoever. One reason we established this protocol regarding reassignment was precisely so that no one could read into the reassignment any criticism of the original prosecutor.
The new attorney will conduct a thorough, de novo reinvestigation of the case, and will report his or her conclusions and recommendations to our inside Conviction Integrity Panel, consisting of the dozen or so senior assistant district attorneys that also worked on our front-end protocols. Together with the Chief of the Conviction Integrity Program, that panel makes a recommendation that ultimately is presented to me.
When we first instituted our Conviction Integrity Program, it was this reinvestigation component that gave us the most concern. We worried, first, that some assistants might chafe at the prospect of their colleagues looking over their shoulders, to investigate claims of innocence and impropriety ? claims that, frankly, in most cases prove to be frivolous. But we worried, too, about whether an assistant would feel inhibited in conducting a full re-investigation of the work of someone who may be a longtime friend and trusted colleague. I’m happy to report that the office culture is committed to this endeavor such that these fears have not materialized.
Let me describe a typical re-investigation. It begins by reviewing the evidence presented at trial. Then, we locate witnesses for interview and re-interview, wherever they may be, with a particular eye toward trying to identify any witnesses who might have been overlooked in the original investigation, or who might only have come to light post-verdict. We seek out any new sources of physical or documentary evidence or forensic evidence. We offer to meet with the defendant and his or her attorney for an interview.
But that description of the process leaves one big question unanswered: after we have re-investigated, after we’ve assembled all this evidence, how do we decide whether or not to vacate the conviction?
That question is so daunting that the temptation is to invoke the lawyer’s default answer: we decide on a case-by-case basis. I will try to resist that temptation.
Our Conviction Integrity Program has been in place long enough that some general principles have emerged ? principles which can guide our work going forward, and which I can share with you.
The first general observation is one that surprised us. Of all the claims of innocence that have been presented to our Conviction Integrity Program since it began more than 2 years ago, not a single claim – zero – could be resolved, one way or the other, by DNA evidence. Either no DNA evidence existed, or the available DNA evidence was not dispositive of guilt or innocence.
This makes our determination more difficult, but in no way diminishes its importance. We do not stop our analysis simply because there is no single, crucial, dispositive piece of evidence. Indeed, after a great deal of internal debate, we decided that not even a plea of guilty will preclude full consideration of a claim of actual innocence, if there is a plausible reason for the plea of guilty and an evidentiary claim that seems worthy of investigation.
That leads us to the question of what weight to accord to a jury verdict of guilty. I do not pretend that we have devised a simple formula in this regard. I will say this: if in reviewing a case, we have access to critical, newly discovered evidence the jury did not see, or if we have found some fundamental defect in the trial itself that suggests that the jury did not have a fair opportunity to evaluate the evidence, then we need to look at the verdict with fresh eyes and ask whether, in fairness, it can stand. When we doubt that it can, we should, and we have, moved to vacate the conviction.
But when we are looking at essentially the same evidence the jury saw, and where the trial seems to us to have been conducted in a fair and competent manner, we are very strongly disinclined to vacate a jury verdict of guilty, even if we feel, in hindsight, that we might have reached a different verdict.
The reality that we have encountered in our Conviction Integrity Program – in which virtually no case is solved by dispositive scientific evidence – has led my staff and me to reexamine first principles that guide our culture and conscience as a prosecuting office. Let me give you a couple of examples that illustrate that process.
Among the most difficult cases that prosecutors confront are those in which a witness’s credibility is so compromised that it becomes difficult to draw a reliable conclusion, one way or the other, regarding whether a crime has been committed. Even in this era of seemingly ubiquitous security cameras, cellphone videos, and trace forensic evidence, there are still many cases that reduce to a contest of credibility, or that rely on the abilities of human perception, with little to corroborate or contradict either account. What does conscience command in such cases? What is our yardstick?
Last summer, in determining that we should dismiss charges against Dominque Strauss-Kahn, I stated my belief that we should not proceed to trial with a case unless we ? as prosecutors ? are convinced ourselves beyond a reasonable doubt of the defendant’s guilt.
Now, this is not a truism. Under New York’s legal ethics rules, and those applicable in almost all other jurisdictions, charges may be brought against a defendant and a defendant tried, if they are supported by probable cause. Under our ethics rules and law, it is perfectly legal for a prosecutor to say, “I will not substitute my judgment for that of a jury; if there is probable cause to bring a case to trial, I will do so and let a jury decide.”
But we approach this process differently. In the initial charging decision, probable cause is of course sufficient to initiate and proceed with a prosecution. But before proceeding to trial, I believe prosecutors in our office should be personally convinced beyond a reasonable doubt of the defendant’s guilt. Put simply, if we are not convinced beyond a reasonable doubt that the defendant is guilty, how can we ask a jury to find him guilty?
Now, an investigation may uncover outrageous immorality and mounds of suspicion; but when investigative work up until trial fails to produce convincing evidence of guilt, we should not proceed – regardless of any public pressure to move ahead. Not surprisingly, such cases comprise one of the most difficult parts of our work. Nonetheless, making those tough decisions defines the conscience and culture of a prosecutor more than any conviction reported on the front page of a newspaper.
On the other hand, I believe we must be fearless in moving forward with cases that we believe in, even if the prosecution is unpopular or even unlikely to result in a conviction. Here, conscience tells us we must go forward.
Many are the times prosecutors enter a courtroom knowing the odds are stacked against them as they move a case to trial. Perhaps it is a case of gang violence in which the victims and their families are terrified of testifying, or an organized crime case where the victims are as unsavory as the perpetrators.
Or perhaps it is like one that two of my assistants handled last year. One afternoon, an attendant in a nursing home in upper Manhattan walked into a patient room and saw a male attendant on the bed of a stroke survivor. The male attendant had his pants down, and was sexually assaulting the patient. But, the case was a very difficult one. The victim ? a senior ? was partially paralyzed and unable to speak. The attendant who witnessed this crime was so unnerved that she did not report it for twenty-four hours. When she did, the male attendant denied everything. By then, there was no physical evidence to confirm the witness’ story. In fact, the stroke survivor was so terrified of reprisal that, when she was examined at the hospital, she indicated nothing had happened.
Attorneys in our sex crimes unit reviewed the evidence, and went to the nursing home to meet with the victim of the crime. They became convinced of the defendant’s guilt, and they believed they could prove the case at trial. And so they sought an indictment, refused to plea bargain, and moved the case to trial. At trial, the victim ? speechless by virtue of her disability ? testified by pointing to letters and words on a board. The jury retired to deliberate, and with surprisingly few interruptions for re-reading of testimony or further instruction, returned its verdict: the jury found the defendant guilty.
I mention these cases because I think they illustrate, more eloquently than my words ever can, the conscience and culture of our prosecutor’s office and many around the country. One the one hand, we need to be fierce advocates and protect the victims of crime, sometimes against great odds. Yet prosecutors have a broader set of unique obligations to the community, the victim and the defendant. So, we must exercise our power responsibly, and with a sense of humility. And that may require us to dismiss charges, no matter the public outrage and promise to proceed.
This, I believe, is justice under anyone’s definition. Or, in Justice Sutherland’s words, this view fulfills our “twofold aim . . . that guilt should not escape or innocence suffer.” Ultimately, what doing justice means is entrusted to our sound conscience: We try to do what we believe is right, in every case and in all our decisions.
These are the values I learned in the DA’s office more than a generation ago; the values I sought in a prosecutor’s office when I represented a criminal defendant; the values I believe we all share as stewards of the criminal justice system; and the values that I hope to carry with me in the office as I go forward as the District Attorney.