'Hero Judge of the Day' Sanctions Prosecutor for Misconduct

Judge Faults Bronx ADA for Failure to Disclose Witness' Changed Story
The New York Law Journal by Andrew Keshner  -  April 10, 2012

A judge has sanctioned the Bronx District Attorney's Office, ruling that a prosecutor's failure to disclose a key witness' change in his account of a stabbing death was "an affirmative act of deceit."  Bronx Supreme Court Justice Edgar Walker in People v. Waters, 571-2007, said Bronx prosecutor Jason Petri's non-disclosure of the witness' change in his recollection of a 2007 stabbing "constitutes more than a mere failure to disclose."  As a result, the judge in his April 5 decision ordered the district attorney to turn over police reports and prosecution materials to the defense, along with a pre-trial deposition of witness Ronald Baker in the retrial of the murder case against Benjamin Waters.  For approximately four years, Baker maintained that on the night of Jan. 14, 2007, he heard "a loud thump" in his apartment. Baker recounted that when he went to the room from which the sound came, he found his partner, Carolyn Vargas, lying in a pool of blood and saw Waters fleeing the scene.  Baker gave this account to a detective, the defendant's counsel at the time, Daniel Mentzer of Mentzer &  Sheindlin in Harrison, and in grand jury testimony. Waters was charged with second-degree murder and other charges.  Opening statements in Waters' trial were heard on Oct. 4, 2011. At a hearing the next day outside the presence of jurors on the admissibility of 911 calls, Baker, one of the callers, claimed on cross-examination he saw Waters stab Vargas in the chest.  Asked by Waters' attorney why he was now claiming to have seen the stabbing, Baker replied that he thought Waters was "going to assume some type of responsibility," according to the transcript.  Baker said he tried several times to tell Mentzer what actually had happened, but Mentzer refused to hear it.

After a "lengthy colloquy," Petri acknowledged he had known for several weeks that Baker had changed his story.  Walker granted a mistrial motion by the defense over the objections of the prosecution. The defense then moved to dismiss the indictment, contending that the prosecution had violated Brady v. Maryland, 373 U.S. 83.  The prosecution acknowledged that the change in the witness' story had come as a surprise to Waters and that surprise "could have been avoided by providing to him the knowledge that Mr. Baker would testify at trial to having seen defendant's stabbing of Ms. Vargas."  But Petri contended in an affirmation filed with the court that there had been no violation because the information at issue was not "exculpatory," or favorable to the defense.  Moreover, Petri said that "the record amply demonstrates that the People's decision not to disclose that Mr. Baker had changed his story was motivated by an intent to secure defendant's conviction within the bounds of Due Process."  Rejecting prosecution arguments, Walker said the change in testimony was Brady material that should have been disclosed before trial because it had ramifications for Baker's credibility and the defense's trial strategy.  He also pointed to ethical rules on the disclosure of evidence favorable to defendants, such as American Bar Association Standard 3-3.11 and Rule 3.8(b) of the New York Rules of Professional Conduct.  The state rule says that a prosecutor in criminal litigation "shall make timely disclosure to the defendant…of the existence of evidence or information known to the prosecutor…that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal."  And, the judge said, since evidence or information "which impugns the credibility" of the prosecution's principal witness against the defendant "tends to negate his guilt," it should be disclosed as soon as possible.

Documents for Retrial

But the judge stopped short of throwing out the indictment, writing, "However deplorable the Court finds the prosecutor's conduct, dismissal is not an appropriate sanction, as society should not be punished for the misconduct of the prosecutor."  The judge also ordered a hearing to "obtain, pretrial, the testimony" of Baker "given the conflicting accounts previously given by Mr. Baker under oath, and the egregious conduct of the prosecutor in suppressing this information, it is appropriate under these particular circumstances to ascertain exactly what this witness will testify to at trial."  He also directed the prosecution to turn over police reports, district attorney materials and prison disciplinary records for Baker, whose prior convictions include a Virginia manslaughter conviction.  "While these documents are not technically discoverable under [Criminal Procedure Law] Article 240, this is an appropriate sanction to rectify the damage done to defendant by the prosecutor's misconduct," Walker wrote.

The judge observed that a number of expert committees have concluded "that expedited and liberalized discovery is an essential ingredient to improving criminal procedure."  Among other things, such an approach allowed "speedy and fair disposition of charges," "thorough trial preparation" and the conservation of money, time and judicial resources.  Here, the judge wrote, the prosecution's "trial by ambush" approach resulted in "unfairness and inefficiency."  "Needless to say, this case does not exemplify an efficient use of time, money or judicial resources, but rather, just the opposite," he wrote.  "Even more troubling in this case" he continued, was that Petri "had every reason to believe that Mr. Baker would make perjurious statements at trial given that his changed version of events was inconsistent with every prior statement made by him" to parties like the grand jury, police and defense counsel.  In a footnote, the judge pointed out that Petri had appeared to give Baker immunity from prosecution for perjury—"something heretofore unheard of by this Court."  The judge also said he would hold a hearing before trial at which Baker would appear to determine exactly what he would testify to a trial.  A spokesman for the district attorney's office said in a statement, "We argued that Brady, which is usually said to require disclosure of evidence which is exculpatory or impeaches a witness, does not apply to evidence which is more inculpatory. We did acknowledge that to avoid surprising the defense attorney, we should have disclosed this. The ADA is, of course, now aware of the office position that notwithstanding whether it was or was not Brady material, it should have been disclosed."  The judge's decision is not appealable.  Lawrence Sheehan of the Bronx represents Waters. He did not return a request for comment.  Mentzer, Waters' initial attorney who withdrew because he might be called as a witness, declined to comment.  Bennett Gershman, a professor at Pace Law School, said that while withholding Brady material is the most common type of prosecutorial misconduct, its revelation typically emerged after convictions.  Gershman, a former state prosecutor, said he could not recall another state case where the production of a pretrial deposition of a witness in a criminal trial was ordered, noting that while not specifically authorized under Criminal Procedure Law, the judge—in ordering the deposition—was using his "inherent authority" to "administer a criminal trial in fair, efficient way."  Gershman, who is not involved in the case, said at the state and national level the examination of Brady violations more and more often turn to the shortcomings of pretrial discovery rules.  "To me, it might show that trial judges are seeming to be more aware of the role that pretrial discovery plays in criminal litigation and how important it is," he said.  Andrew Keshner can be contacted at akeshner@alm.com.CLICK HERE TO SEE A PREVIOUS 'Hero Judge of the Day' - Hon . Joseph W. Bellacosa.