By Graham Rayman (The Village Voice)
January 17, 2013
Brooklyn District Attorney Charles Hynes sent us a lengthy letter in response to our story about his reign as Brooklyn District Attorney ("Brooklyn Deserves a New D.A."). How lengthy? 2,005 words. Basically, he didn't like the article so much. And with the zeal of a Talmudic scholar, Hynes (or someone using his pronoun) dissected the piece, concluding it was "highly biased journalism" and "totally one-sided."
After reviewing Hynes's letter, we really don't have much to add--and nothing to retract. Indeed, our story granted many of the points he makes about innovative programs and other "enlightened" policies he has enacted over the years. So...right!
At the same time, Hynes's response seems to miss the point in important ways. We will only focus here on the experience of Ronald Bozeman, whose case opened and closed our article. Hynes's full letter is reproduced below. We appreciate his reading the Voice.
We had reported that Hynes's prosecutors first indicted Bozeman for armed robbery based on two witnesses's testimony that he was the gunman. Five months later, the same prosecutor in Hynes's office indicted a second man, Gregory Johnson, as the same gunman, based on testimony from the same witnesses.
As we reported, Pace University Law Professor Bennett Gershman called this a "clear violation of due process," and added, "The courts do not allow prosecutors to pursue inconsistent theories."
In his letter, Hynes justified this by saying his prosecutors disclosed the "change in theory" to Bozeman's defense lawyer. Bozeman's attorney, Mark Bederow, expressed astonishment at Hynes's attempt to rewrite history in his letter to us. While Hynes's office did acknowledge the change in theory, Bederow says, "the proper thing to do [in that situation] is supersede the Bozeman indictment and re-indict him on the new theory. They did not do that. They deliberately proceeded with two men under two grand jury presentations as the same person."
In addition, Bederow says, when Hynes's prosecutors disclosed the change in theory, they did not reveal a series of other problems with the case, as they should have. They did not disclose that a third man, Edicy Reedy (Hynes misspells the name in his rebuttal) was a potential suspect because his phone and DNA were discovered in the car, and his description fit the gunman's. "At that time, an ethical prosecutor would have disclosed the other problems with the case," Bederow says. "The fact that they didn't disclose the mass amount of Brady material leads to only one of two possible conclusion: that they were grossly incompetent and indifferent, or two: that they deliberately withheld it. Either way, it's indefensible conduct on the part of a prosecutor."
Hynes says Reedy could not have been questioned because he was not in custody at the time. Bederow calls this a "stunning" statement. "If Reedy is the right guy, [then] you arrest no one, and wait until you have him. They are ignoring the important question: How do you arrest someone without excluding the most obvious suspect?"
When Reedy was picked up a year later, he was placed in a lineup, but the witness could not identify him. That ruled out Reedy. The prosecutor, Hynes writes, told Bederow about that one day later. But Hynes omits the fact that Bederow had been asking about Reedy, and pointing to other problems with the case, for five months--only to be stonewalled by prosecutors in Hynes's office. Records show Bederow had written a half dozen letters demanding discovery documents and was ignored. As a result, Bozeman rotted in jail much longer than he should have.
"They are skipping the real issue," Bederow says. "I'm not in a position to knew when they got it [the lineup result] or didn't get it. I do know I had been asking for specific exculpatory evidence for months and months. For the DA to now say they it did nothing wrong is completely disingenuous and shocking."
A footnote to the Bozeman story: Prior to the article's publication, a Hynes spokesman insisted to the Voice that there was no reason to investigate the handling of the case because no one did anything wrong.
On the day our story appeared, Hynes's top aide, Chief Assistant District Attorney Amy Feinstein, wrote a letter to Bederow disclosing the case was being re-examined. "This office is currently reviewing how the investigation, indictment, and prosecution of your client was conducted," Feinstein wrote in the three-paragraph letter.
Then on Jan. 9, less than five business days after Bederow received Feinstein's letter, we called the Hynes spokesman to ask about the investigation. He gave this response: "We've reviewed everything on this case, and we have found no misconduct on the part of the prosecutors, and that's all I'm going to say."
Hynes's office investigated a complex year-long case in less than five days. You can't fault its efficiency.
The full Hynes rebuttal can be read here:
The Village Voice's totally one-sided report, "Brooklyn Deserves a New DA" by Graham Rayman, fails to mention virtually any of the accomplishments of my office since I became District Attorney in 1990. My strategies, which the Voice dismiss as "social welfare," have resulted in major reductions in serious crime, including a reduction in murder, from 780 the year I took office to 149 in 2012. This was accomplished by comprehensive programs which have significantly reduced recidivism rates. In 1990, Brooklyn was famously the fifth most violent municipality in the country. My office has played a huge role in making Brooklyn the most vital, growing part of the safest city in America.
Mr. Rayman attacked the length of my tenure, saying I have been in office for a "political eternity", but Bronx DA Robert Johnson was first elected the year before I was, and Robert Morgenthau served longer than either of us has.
I thank Mr. Rayman for noting my innovative spirit and for calling me "enlightened", but he quotes an unnamed source who says that lately I have been "cruising." Even my old friend, Ken Fisher, is quoted saying I cannot "sustain innovation". In 2008, I started a gun buyback program that has since been replicated across the city. In Brooklyn alone, it has taken more than 2,400 guns off the streets. In 2010, in partnership with the faith-based community and the Office of Court Administration, I launched Project Safe Surrender, which provides a setting for low-level offenders with outstanding warrants to resolve their cases. Over 2,000 people have taken advantage of this initiative each one can now get his or her life back on track, without fear of landing in jail over an old and unanswered summons.
In 2007, I created "Project Re-Direct," the first New York State prosecutor's alternative to incarceration programs for gang members. Re-Direct focuses on each of the individual gang member's needs and redirects them from the gangster lifestyle to that of law-abiding valued members of our community.
In 2011, I launched "Back on Track," an initiative designed to steer at-risk youth from Brownsville away from criminal activity. We address the social service needs of youngsters who are chronically truant and thus pose a higher risk of dropping out of school and committing crimes.
Mr. Rayman, however, made his bias clear when he chose to allow a "Brooklyn elected official" to be quoted anonymously criticizing my integrity.
Andrew Stoll's gratuitous criticism that "the idea of going to a Brooklyn prosecutor with compelling evidence of innocence is ridiculous" is itself ridiculous. In late 2011, I created the Conviction Integrity Unit headed by a very experienced and well respected prosecutor. I invited the Indigent defense agencies and private defense attorneys to refer cases to the Unit. Since that time 2 cases have been dismissed and they are actively investigating 13 other cases.
In 2011, I indicted two ACS social workers, Chereece Bell and Damon Adams, charging them with Criminally Negligent Homicide, after a young girl under their official supervision was killed by her mother and grandmother. Adams is also charged with falsifying ACS records, to make it appear he had conducted home inspections, when, in fact, he had not done so. Aside from Mr. Rayman, the only people who accused me of politics in this case have been the defendants themselves and the union that represents them. ACS workers complain they are afraid that if they fail to properly do their job and a child is killed, they could be held responsible. If they fail to do their jobs properly and as a direct result a child dies, they will be held criminally responsible, especially if they falsify records to cover their wrongdoing. This case should be and will be resolved in a Court of Law.
Mr. Rayman diminishes the impact of my Kol Tzedec, or Voice of Justice, program, which was designed to break the wall of silence protecting Orthodox Jewish sex offenders. I have never, ever agreed to let rabbis handle sex crimes "internally", as Mr. Rayman charges. I have consistently said that when a rabbi, or anyone else, suspects child abuse, he or she has a moral duty to contact law enforcement. Crimes should be addressed by civil authorities. I have never protected the names of sex offenders, but instead refused to give reporters a list of Orthodox Jews charged with sex crimes. I have kept track of the cases handled through my Kol Tzedec program, to gauge its success, and when reporters have asked, I have confirmed whether certain defendants' cases went through it. To date, more than 100 cases have been made or assisted, through Kol Tzedec. Nechama Weberman, convicted of 59 felony counts and Emanuel Yegutkin, convicted of 75 felonies are two such cases that grew out of this initiative.
Any attempt to connect Isaac Chehebar's plea of guilty to campaign contributions made by the Brooklyn Sephardic community is outrageous. The plea offer was made only after close consultation with the victims' father during which he said that he believed that sending the defendant to prison would not bring back his daughters. I have had the support of this Brooklyn community since 1989 - long before Isaac Chehebar got behind the wheel of that car - and I count them among my supporters to this day.
Here are some other important areas that set the record straight.
Bruce Barket's recollection of the facts of the Jeffrey Marshall matter is flawed.
First, Federal District Court Judge Edward R. Korman did not find that ADA Vecchione had "made a secret deal with a key witness but never disclosed it." As established at the hearing before Judge Korman, ADA Vecchione did not enter into any cooperation or plea agreement ? oral, written, or "secret" ? with Murphy or Murphy's attorney prior to Murphy's testimony at the trial of Jeffrey Marshall under Indictment Number 7578/1992. Both Murphy and his attorney testified unequivocally that ADA Vecchione did not induce Murphy to testify at this trial through promises or threats of any sort; instead, Murphy volunteered himself as a witness against Marshall because of his hatred of Marshall.
Second, Mr. Barket did not uncover a written cooperation agreement that undermined the testimony of ADA Vecchione. The agreement at issue pertained to Murphy's testimony at two later trials.
Third, Mr. Barket's purported recollection of an exchange between Judge Korman and ADA Vecchione that culminated in ADA Vecchione flippantly responding, "It is what it is, Judge", is refuted by the official record of the hearing. The exchange never transpired.
The reporting of the Jabbar Collins matter omits facts that are relevant to rebut your mischaracterization of ADA Vecchione. The retired detective who recalled that he was summoned by an assistant district attorney to speak with witness Edwin Oliva, after Oliva had allegedly recanted his statement incriminating Collins, also specifically recalled that ADA Vecchione was not the assistant who called him and was not present when, the retired detective recalled, Oliva allegedly disavowed that recantation. Moreover, neither the retired detective nor anyone else who may have been present made a record of Oliva's statements or told ADA Vecchione about them.
Ronald Bozeman was indicted on December 14, 2011 based on his identification to the police as the gunman by the two victims, and also based on his DNA found on a cloth inside a bag left inside the vehicle. When Gregory Johnson was indicted one-and-a-half months later, on January 31, 2012, the witnesses did tell ADA Silver that Gregory Johnson was the gunman but still insisted that Bozeman was the other perpetrator. This change in theory as to the respective roles of the defendants was disclosed to Bozeman's then attorney Nanette Kripke, at Bozeman's arraignment on February 7, 2012. Edicey Reidy could not have been questioned by the police or placed in a line-up prior to either Bozeman's or Johnson's presentation because he had not yet been taken into custody by the police. When Reidy was eventually picked up by the police on October 4, 2012, he was placed in a line-up viewed by one of the witnesses who was unable to make an identification. The other witness had moved out of the country. The inability by the witness to make an identification of Reidy was disclosed to Mr. Bederow on October 15, the very next court date for Bozeman. Moreover, the paperwork pertaining to this line-up had been Express Mailed to Mr. Bederow on October 18 and its imminent arrival was the point of the e-mail sent by ADA Madni. Finally, the people disclosed to Mr. Bederow the identification made by Awadeh of a third person being the gunman less than one day after learning about it from the police and not five months as the article inaccurately states.
Tesson Hendrix was indicted on June 12, 2009, after a co-defendant implicated him in a gunpoint robbery that ended in murder. The victim was a friend Hendrix made when both were serving time in the same upstate prison. Both of Hendrix's co-defendants were also friends of his. One of the defendants, Damon Toler, testified that the victim had contacted Hendrix about buying a large quantity of crack cocaine, and Hendrix hatched a plot to rob the victim of his drug money, with Toler and the other defendant, Clifford Thompson. The robbery went awry and the victim was shot. In addition to Toler's testimony, surveillance video showed both codefendants leaving Hendrix's apartment together, prior to the murder. Phone records showed the victim calling Hendrix several times immediately before the shooting and Toler calling Hendrix immediately afterward. Thompson was convicted of Murder in the Second Degree and Toler pleaded guilty to Robbery in the Second Degree. Both are serving life sentences. Hendrix was acquitted at trial.
John O'Hara was indicted for one count of Offering a False Instrument for Filing in the First Degree, one count of False Registration and five counts of illegal voting after an investigation revealed that he used an improper address when running unsuccessfully for elected office. There was no evidence that he lived at the location as he continuously lived in one apartment on 61st Street.
Mr. O'Hara first trial resulted in a conviction which was reversed by the Appellate Division due to an improper charge to the jury. His second trial resulted in a hung jury. He was then convicted. The conviction was affirmed by the Appellate Division and then again by the New York State Court of Appeals. O'Hara sought relief in the Federal Court and Judge Gleeson denied his request for a writ of habeas corpus. Judge Gleeson noted that the prosecution was founded on the assertion that the residence claimed by O'Hara was a "sham", and further commented that "the evidence in this case, which I reviewed exhaustively, I found to be extremely powerful."
Mr. O'Hara brought a motion asserting selective prosecution. The Judge not only denied the motion but also noted that "in fact, the defendant as shown that the factors used by the government in deciding to prosecute him were valid and neutral considerations".
My office handles between 90,000 and 100,000 cases every year, and, since I have been in office, violent crime has declined drastically. Programs I have developed have been researched and validated by objective academics. They have been replicated across the country, and my holistic approach to crimes like domestic violence have served as a model for District Attorneys throughout the state. To attack my integrity with anonymous sources and to attempt to tarnish my legacy by mischaracterizing a small handful of cases, is unfair and a disservice to your readers.
Charles J. Hynes
District Attorney, Kings County