Lots of Police Misconduct, But What About the Prosecutors?

Recent media have contained numerous stories about Tyre Nichols, who was savagely beaten to death by Memphis police officers.  Over the last several years, police misconduct has received considerable media attention, as it should.  However, while police misconduct obviously continues to be a significant criminal justice problem, recent events in a New York State courtroom highlight another problem that negatively affects the integrity of our criminal justice system.

Joseph Franco, a former New York City narcotics detective, was charged in 2019 with perjury and other crimes stemming from his 20-year involvement with collecting evidence of drug cases in Brooklyn, Manhattan and the Bronx.  Between 500 and 600 convictions in these boroughs, all of which stemmed from his work, were overturned.  Mr. Franco’s case recently proceeded to trial, which a New York State Judge short-circuited by dismissing the charges with prejudice because of prosecutorial misconduct.

The prosecutors, who worked in the Police Accountability Unit in the Manhattan District Attorney’s Office, wrongfully withheld evidence from the defense.  This evidence included surveillance videos, communications between prosecutors, investigative memos, and the contents of confiscated cellphones.  There were also several hundred audio files of interviews of a prosecution witness, which were recorded while she was held at Rikers Island.  The existence of this evidence apparently came to light after Mr. Franco’s trial had begun.  The Judge found that prosecutors had failed to turn over evidence to Mr. Franco’s attorneys on three separate occasions, and held that this was a major ethics violation warranting dismissal.  Since the dismissal was with prejudice, the Manhattan DA will not be able to prosecute Mr. Franco again on the underlying charges.

It is ironic that the prosecutors responsible for representing the People in this case were with the office’s Police Accountability Unit, formerly known as the Public Corruption Unit.  This unit is responsible for prosecuting officers accused of excessive use of force; illegal stops, searches and arrests; and theft of property possessed by arrested defendants.  What does it say to the general public when attorneys tasked with prosecuting police misconduct themselves commit misconduct?  The incident highlights the fact that such actions by prosecutors call the legitimacy of our entire criminal justice system into question.  And, as a practical matter, we will never know if Mr. Franco really committed misconduct.

It is beyond dispute that police misconduct remains a huge issue throughout this country on all levels of law enforcement.  In New York, the illegal activities of Louis Scarcella, a narcotics detective in Brooklyn, resulted in the overturning of 80 convictions.  Daniel Pantaleo, the officer who placed Eric Garner in an illegal choke hold which resulted in death, was fortunately terminated from the department.  What happened to George Floyd was horrible and received substantial media coverage, but the problem goes far beyond that one incident.  Police misconduct is a national problem.  But misconduct by the attorneys responsible for addressing this problem only exacerbates it, and should never be tolerated.  Prosecutors are ethically bound by the same rules that govern the conduct of all attorneys, and violations of these rules, which frequently involve failure to turn over discovery to defense counsel, must result in discipline.

It’s not just about doing whatever seems necessary to get a conviction.  It’s about maintaining a criminal justice system that works for society.  That cannot happen in a system that lacks integrity, particularly when the lack of integrity stems from the conduct of a prosecutor, who is supposed to be one of the system’s guardians.

James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey, who represents defendants in the New Jersey Superior Court in all counties, in all New Jersey municipal courts, in the New York State criminal courts located in Brooklyn and Manhattan, and in the United States District Courts in New Jersey and New York City.


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