New York DA Blasted for "Flagrant" Flouting of Ethics, Fairness (MORE, CLICK HERE)

NY DA Blasted for "Flagrant" Flouting of Ethics, Fairness
New York Lawyer - January 4, 2008
By Noeleen G. Walder - New York Law Journal

An appellate court has sharply criticized the Bronx District Attorney's Office for a "flagrant violation...of [its] constitutional and ethical obligations" to turn over matter favorable to the defense pursuant to Brady v. Maryland, 373 U.S. 83 (1963).

The Appellate Division, First Department, in People v. Garcia, 1085, 1086, last week ruled unanimously that Pedro Garcia and his wife, Betzayda Melendez, must be given a new trial on charges that they kidnapped a 13-year-old girl and forced her to board a flight to Puerto Rico.

The defendants were tried in absentia by a jury. In 2002, they were sentenced to 20 years in prison for second-degree kidnapping and endangering the welfare of a minor. They have been incarcerated for more than six years. Their convictions were vacated on Nov. 2, 2006, by Bronx County Supreme Court Justice Steven Lloyd Barrett, but the district attorney's office appealed.

The First Department agreed with Justice Barrett that "the prosecution wilfully suppressed evidence, in their possession, from flight attendants that contradicted the complainant's claim that she created a disturbance and vociferously protested to the attendants that she was being taken against her will by defendant Melendez on a flight to Puerto Rico."

The First Department panel said, "it is disquieting that the People's brief refers to this failure to disclose 'an arguable lapse of preferred practice.' This was a flagrant violation by the prosecutor of his constitutional and ethical obligations."

According to the unsigned decision, which was published in the Law Journal on Dec. 31, 2007, page 33, each of the attendants on the flight to Puerto Rico had informed the prosecutor before the trial that there had been no disturbance on the plane. The court said this information was clearly favorable to the defendants as "it was inconsistent with a fundamental aspect of the People's case" — that the girl had "actively resisted" after being "physically restrained" and forced onto the flight.

And the panel suggested that the availability of the evidence could have made a big difference to the outcome. The flight attendants' testimony would have offered a "markedly different account of the events on the airplane, and would have significantly impeached the complainant's credibility," the court wrote.

In this regard, it adopted the opinion of Justice Barrett, who wrote in vacating the verdict that "this meaningful impeachment evidence may well have proven determinative to the evaluation of a case in which serious doubts coexisted with the chilling accusations and in which the key witness' credibility was under attack."

Mr. Garcia was the superintendent of the building in which the girl lived. The First Department noted that the trial court found details of the girl's testimony "baffling," including the absence of ransom demands, her captivity in the same building as her parents, and the fact that the boiler room where she allegedly was kept had no locks and "could be opened quite easily from the inside."

The case was prosecuted by Assistant District Attorney Scott David Staton. Steven Reed, a spokesman for the district attorney’s office, said that Mr. Staton has since left the office for reasons unconnected with the case.

In an e-mailed statement yesterday, Bronx District Attorney Robert T. Johnson said, "While we certainly agree that all of the details should have been turned over, it is significant that the names of the airline witnesses were disclosed to, known to, and available to the defense."

However, the First Department specifically rejected this argument, noting that the prosecution only disclosed the flight attendants' names, without providing contact information or the type of information the attendants possessed. The names also were "buried in a voluminous amount of discovery provided shortly before trial, and were not identified as Brady material," the court wrote.

While one of the flight attendants was identified as a potential witness, the panel found it "irrelevant" whether defense attorneys "could have discovered or should have known" that the attendants' testimony would contradict the prosecution's version of events. According to the ruling, the prosecution had an independent obligation to disclose that fact.

Even "more disturbing" was the prosecution's use of the suppressed evidence at summation, the decision said.

One of the defense attorneys argued that the fact that none of the attendants had testified supported an inference that they would have contradicted the prosecutions.

In response, Mr. Staton asked the jury, "Who else do we have, airport security, airplane stewardess? Why weren't there people brought in?" He suggested that "this is a conspiracy of passivity. No one gets involved, no one wants to be bothered."

The appellate panel agreed with Justice Barrett that this argument was "most charitably, disingenuous."

Joining in the decision were Justices David B. Saxe, David Friedman, George D. Marlow, Joseph P. Sullivan, and James M. McGuire.

Sara Gurwitch of the Office of the Appellate Defender, who represented Mr. Garcia, said in an interview that the prosecution's conduct had been "outrageous" and "shocking."

Robert S. Dean and David J. Klem of the Center for Appellate Litigation represented Ms. Melendez.

Lawrence H. Cunningham handled the appeal for the Bronx district attorney. Mr. Reed said the agency is reviewing the case to see if it will retry the two defendants.