Federal Lawsuit Alleges Misconduct by Prosecutors

Lawsuit Alleges Misconduct by Brooklyn Prosecutors

The Wall Street Journal by Sean Gardiner - February 16, 2011

A man who spent 16 years in prison for the murder of a Brooklyn rabbi has filed a wrongful conviction lawsuit alleging “blatantly illegal investigative tactics” were used by the Brooklyn District Attorney’s office to secure his conviction. Last June, Jabbar Collins was released from prison when prosecutors told a federal court judge that they were abandoning their efforts to retry him for the 1994 murder of Rabbi Abram Pollack. The district attorney vacated the murder conviction in May when evidence surfaced that one of the witnesses who implicated Collins had temporarily recanted, and prosecutors failed to inform Collins’s trial lawyer of it. The story of how Collins managed to overturn his murder conviction while in prison was the subject of a front-page Wall Street Journal article in December [SEE BELOW]. On Wednesday, Collins and his attorney, Joel Rudin, filed the lawsuit in Brooklyn federal court naming the city, Brooklyn prosecutor Michael Vecchione and eight other prosecutors and detectives as defendants. Jerry Schmetterer, a spokesman for the district attorney’s office, declined to comment. Vecchione led the prosecution during the original Collins murder trial in 1995. Much of the lawsuit concerns Vecchione’s alleged conduct during the murder investigation and that trial. At a hearing in 2010 on a possible retrial for Collins, a witness testified that Vecchione threatened to hit him over the head with a coffee table when he refused to cooperate. Among a long list of allegations of misconduct is a new charge that several notarized or sworn affirmations and affidavits purportedly signed by Vecchione were forged by a paralegal. Vecchione denied at Collins’s state appeal in 2006 that any witness ever recanted or “had to be threatened or forced to testify.” He also swore that claims authorities had either coerced witnesses or failed to turn over potentially exculpatory information “are, without exception, untrue.” At that time, Brooklyn District Attorney Charles Hynes said, “Michael Vecchione is not guilty of any misconduct.”

The lawsuit claims that Vecchione’s case against Collins began to “evaporate” in the beginning of 1995: One witness recanted his statement; another said he saw Collins running from the shooting and called 911 but there was no recording of that call; and the third witness had fled to Puerto Rico in violation of his probation, according to the complaint. According to the lawsuit, Vecchione employed illegal tactics to coerce his witnesses to give false statements and testify. The lawsuit claims that one of Vecchione’s forged sworn statements was used to gain an order that allowed him to force a witness to be taken to his office against his will. It alleges that the witness was jailed as way to coerce him into making false statements and giving false testimony. The lawsuit claims that Collins subsequent attempts to obtain records were improperly blocked by the Brooklyn Attorney’s office. Collins, who became well versed in public records laws while incarcerated, obtained exculpatory evidence — in one instance by admittedly posing as a prosecutor’s investigator during a recorded phone call. The lawsuit also accuses Hynes, the Brooklyn D.A., of failing to provide proper training and failing to discipline prosecutors who withheld evidence potentially favorable to the defense. “His deliberate indifference to such violations created an ‘anything goes’ atmosphere that caused such violations to continue, including in (Collins’) case,” the lawsuit states.

********************************BACKGROUND/RELATED STORY:

A Solitary Jailhouse Lawyer Argues His Way Out of Prison

The Wall Street Journal by Sean Gardiner - December 24, 2010

Each morning for 5,546 days, Jabbar Collins knew exactly what he'd wear when he awoke: a dark-green shirt with matching dark-green pants. The prison greenies of a convicted murderer, he says, were "overly starched in the beginning, but as time wore on, and after repeated washes, they were worn and dull, like so many other things on the inside." Today, Jabbar Collins works as a paralegal at the Law Offices of Joel B. Rudin in Manhattan. But for 15 years, he sat in prison, convicted of the 1994 murder of Rabbi Abraham Pollack. Mr. Collins, who maintained his innocence, spent much of those 15 years in a computerless prison law library. For most of those 15 years, Mr. Collins, who maintained his innocence, knew the only way his wardrobe would change was if he did something that's indescribably rare. He'd have to lawyer himself out of jail. There was no crusading journalist, no nonprofit group taking up his cause, just Inmate 95A2646, a high-school dropout from Brooklyn, alone in a computerless prison law library. "'Needle in a haystack' doesn't communicate it exactly. Is it more like lightning striking your house?" says Adele Bernard, who runs the Post-Conviction Project at Pace Law School in New York, which investigates claims of wrongful conviction. "It's so unbelievably hard…that it's almost impossible to come up with something that captures that." Mr. Collins pried documents from wary prosecutors, tracked down reluctant witnesses and persuaded them, at least once through trickery, to reveal what allegedly went on before and at the trial where he was convicted of the high-profile 1994 murder of Rabbi Abraham Pollack. The improbable result of that decade-and-a-half struggle was evident on a recent morning in a Midtown Manhattan skyscraper. Mr. Collins sat in a small office he now shares, wearing one of the eight dark suits he owns, a white shirt with French cuffs, a blue-and-gray striped tie and a pair of expensive wingtips. "Every day is beautiful" now, he said, smiling. "I don't have a bad day anymore. I think that my worst bad day out of prison will be better than my greatest good day in prison."


After more than 15 years behind bars and now free after getting his murder conviction overturned, Jabbar Collins starts his day like so many other New Yorkers: He takes the subway to his job in Manhattan. WSJ's Jason Bellini reports. On March 13, 1995, as Mr. Collins was led by officers through a side door of a Brooklyn courtroom to a holding cell, his mother let loose a wailing sound that he'd "never heard before or since." Her son had just been convicted of murder. He was 22, a father of three and facing at least 34 2/3 years behind bars. Three witnesses had implicated him in the midday shooting of Mr. Pollack as the rabbi collected rent in a building at 126 Graham Avenue in the Williamsburg section of Brooklyn. Mr. Collins said he was home getting a haircut at the time. To that point in his life, Mr. Collins had been drifting. His father died when he was 12 and his mother worked two jobs while also studying nursing. Under-supervised, he skipped school often, smoked a lot of pot and fathered the first of his children when he was 15. When he was 16, he was arrested for a robbery. He says he was just waiting outside the store where a robbery took place. Mr. Collins accepted a youthful-offender adjudication under which he got probation and the arrest could eventually be purged. Mr. Collins later obtained a general-equivalency diploma and took some classes at Long Island University. He was trying to transfer to John Jay College of Criminal Justice when he was arrested for Mr. Pollack's murder. During his trial, Mr. Collins recalls being mystified. "I felt like a child," he says, "everyone talking over my head." But hearing his mother wailing as he was taken away suddenly cleared his head. "You have a life of misery ahead of you," he remembers telling himself. "The only way you're going to get out is to become your own lawyer."

On returning to Rikers Island, the city jail complex, Mr. Collins headed to the law library. There and later at Green Haven prison north of the city, he spent most of his free time in law libraries, pouring himself into legal books: "Federal Rules of Criminal Procedure," "McKinney's Consolidated Laws of New York," "The Legal Research Manual." A thick text for paralegals called "Case Analysis and Fundamentals of Legal Writing" became his bible. He devoted two months to mastering the intricacies of federal and state law on access to public records. Jabbar Collins achieved the rare feat of lawyering himself out of prison, 15 years after he was convicted of murdering a rabbi in Brooklyn, N.Y. Here are some of those involved. Michael Vecchione denied any witnesses were rewarded or pressured. Adrian Diaz testified at trial he saw Collins with a gun. When Collins much later called him, posing as a D.A. investigator, Diaz talked about his route to becoming a witness. Edwin Oliva testified at trial that Collins had said he planned to rob the rabbi. When Collins wrote to Oliva years later, Oliva wrote back describing what lay behind his testimony. Angel Santos testified at trial he had called 911 and said he saw Collins run past. His voice didn't seem to Collins to match any voices on the 911 tape. Joel Rudin helped Collins after his own 10-year legal effort. His first request for trial records under New York's Freedom of Information Law, in July 1995, was denied. He would go on to file six more requests, five more appeals and a lawsuit before a judge gave him some of the records over two years later. Finally succeeding in a request, gaining 239 pages of documents and 94 audio tapes, emboldened him. "It kind of refilled the tanks," he says, "gave me the confidence to fight on."

Over time, Mr. Collins would file a dizzying number of records requests. If they were denied, he appealed. If he lost, he'd add his requests to those he prepared for other inmates. "The mosaic of intelligence gathering," Mr. Collins calls this. "You collect one item at a time and you add to the picture piece by piece until you create what is a stunning mosaic of what really happened." He picked away at his case for eight years, but by the fall of 2003 he had hit a wall. That's when he carried out a ruse to trick Adrian Diaz, who had testified to seeing Mr. Collins tuck a gun in his waistband after the murder, into talking to him. "I became Kevin Beekman, district attorney's investigator, for about 25 minutes," Mr. Collins says. The fictitious Mr. Beekman said he needed to recreate documents lost in the Sept. 11, 2001, World Trade Center attack. When Mr. Diaz agreed to talk about his testimony, Mr. Collins routed the call through a phone in his mother's home so it could be recorded. Mr. Diaz said that before the trial, he had gone to Puerto Rico, in violation of his probation for marijuana possession. He agreed to return and testify against Mr. Collins, he said, only after prosecutors promised they would make sure his probation wasn't revoked. That account, which Mr. Diaz later attested to in a signed affidavit, wasn't provided by prosecutors to Mr. Collins's defense counsel, who could have used it to undermine the witness by showing he was given an incentive to testify.

In 2005 Mr. Collins wrote to another witness, Edwin Oliva, who had testified that before the murder, Mr. Collins said he was going to rob the rabbi. "I really need to know what happened between you and the District Attorney's Office," Mr. Collins wrote. "I always knew I was going to hear from you sooner or later," Mr. Oliva wrote back. "And to tell you the truth, I am glad you wrote, now once and for all I can settle the record." Mr. Oliva wrote that he had been arrested a few weeks after the Pollack murder for a robbery he pulled in the building. He said the police asked about the rabbi's killing and he told them all he knew was that Mr. Collins had been arrested. Detectives threatened to charge Mr. Oliva as an accessory, he wrote, and then made up a statement implicating Mr. Collins. Mr. Oliva wrote that he was so strung out and sleepy from a month-long run of "smoking & sniffin' dope" that he signed the statement, adding he "didn't even know what...I was signing." But now, Mr. Oliva added, he wanted to help Mr. Collins, "because I know you got a rotten deal." Mr. Oliva granted access to his records. They included a Legal Aid document that referenced, without elaborating, a "deal" being discussed between the judge, a prosecutor and Mr. Oliva's attorney. Mr. Oliva was allowed to plead to a lesser felony than he had been indicted for. He received a sentence of up to three years. The other charge could have kept him in prison longer.

At the trial, lead prosecutor Michael Vecchione stated that no key witnesses had received anything for testifying. "Oliva's motive is simple," the prosecutor said. "Just like all the rest of the witnesses, he saw something, he heard something, someone asked him about it, and he is telling what he saw and he is telling what he heard. Nothing else." Mr. Vecchione declined requests for comment. Mr. Collins, though a skilled jailhouse lawyer who helped many other inmates, could take his own appeal only so far without help. In late 2005, after 10 years working alone, he contacted Joel Rudin, a civil-rights attorney known for winning what was then the largest wrongful-conviction settlement in New York, $5 million. "I was amazed" at Mr. Collins's file, Mr. Rudin says. "I've never seen anything like this. There was so much documentation." As the lawyer began reworking the appeal, Mr. Collins gathered another piece of his mosaic. He obtained a tape of calls to 911 after the killing. A witness had testified he called 911 and told of seeing Mr. Collins run past. But when Mr. Collins listened to the tape of 911 calls, none of the voices sounded like what he recalled this witness sounding like at the trial. Mr. Collins obtained a tape of a prosecution interview with this witness, Angel Santos. He hired a voice expert to compare the interview tape with the tape of people calling 911. No matches. Mr. Santos and the other two main witnesses, Messrs. Diaz and Oliva, couldn't be reached for comment. Michael Harrison, Mr. Collins's court-appointed trial lawyer, said he couldn't remember whether he ever received the 911 tape because it was so long ago.

In March 2006, Mr. Rudin asked a state judge to overturn Mr. Collins's murder conviction on the grounds of newly discovered information the defense should have been given. Mr. Vecchione, the prosecutor, swore that claims authorities had either coerced witnesses or failed to turn over potentially exculpatory information "are, without exception, untrue." Then the roof crashed down. Learning of Mr. Collins's impersonation of an investigator, state Justice Robert Holdman dismissed the appeal, declaring it to be "wholly without merit, conclusory, incredible, unsubstantiated, and, in significant part, to be predicated on a foundation of fraud." For good measure, he barred Mr. Collins from filing future requests for information. "Just devastating," Mr. Collins says. "This had been my life's work for the last 10 years." He didn't have the luxury of wallowing. State law allows only 30 days to appeal such a ruling. As he wrote his appeal, he couldn't keep out his bitterness, and Mr. Rudin had to redo it. The state appeal failed.

In what amounted to their last shot, they filed a motion in federal court in Brooklyn seeking to overturn the conviction based on prosecutors' "knowing presentation, at trial, of false or misleading testimony" and withholding of evidence that might have been used to discredit the main witnesses. This March, after two years of legal wrangling, federal Judge Dora Irizarry approved Mr. Rudin's request for additional material from prosecutors. Information Mr. Collins had spent more than a decade trying to get his hands on suddenly began pouring in. One document concerned Mr. Oliva, the witness who wrote that under police pressure he signed a statement implicating Mr. Collins in the murder, even though he knew nothing about it. The document suggested that as the murder trial neared, Mr. Oliva had balked at cooperating. It said his work release for a robbery conviction was revoked "after he failed to cooperate with D.A.'s office regarding a homicide." Other newly discovered information suggested Mr. Oliva had briefly recanted his statement implicating Mr. Collins. A prosecutor preparing to fight Mr. Collins's appeal learned this from a retired detective, who said that Mr. Oliva recanted, then changed his mind again and stuck to his statement after the detective and several prosecutors spoke with him at the Brooklyn D.A.'s office. This prosecutor turned that information over to Judge Irizarry, acknowledging it should have been provided to Mr. Collins's murder-trial defense. (Mr. Vecchione had denied at Mr. Collins's state appeal that any witness ever recanted or "had to be threatened or forced to testify.") Four days before a scheduled hearing in Judge Irizarry's federal court, the D.A.'s office offered to reduce the charge against Mr. Collins to manslaughter, allowing his immediate release. Mr. Collins rejected the offer.

Later the same day, prosecutors informed the court that they wouldn't fight Mr. Collins's effort to overturn his conviction, but said they planned to retry him. A retrial would move the case back to state court, a venue where prosecutors had known nothing but success against Mr. Collins. Mr. Rudin, desperate to keep the case in federal court, persuaded Judge Irizarry to hold a rare hearing on whether the D.A. should be barred from retrying Mr. Collins because its misconduct had been so pervasive. The hearing's first witness was Mr. Santos, the man who had testified about making a 911 call after the murder, but whose voice didn't seem to match any of the voices on the 911 tape. Mr. Santos told the hearing that in the period when the murder occurred, he was using drugs "every day. Twenty-four hours." He said that as the murder trial neared a year later, he told Mr. Vecchione he didn't want to testify, but Mr. Vecchione began "yelling at me and telling me he was going to hit me over the head with some coffee table." He said he was threatened with prosecution, then locked up for a week as a material witness. When he agreed to testify, he said, he was taken from jail to a Holiday Inn, which he described as "paradise."

The federal hearing was due to resume a week later with testimony from Mr. Vecchione and other prosecutors. Instead, the D.A.'s office gave up. It said its decision was "based upon the weaknesses that now exist with the witnesses," but added that its "position, then and now, was that we believe in this defendant's guilt." Judge Irizarry was not pleased. "It's really sad that the D.A.'s office persists in standing firm and saying they did nothing wrong here," she said. "It is, indeed, sad." Judge Irizarry declined to be interviewed; the judge who turned down Mr. Collins's state appeal didn't return a call seeking comment. Brooklyn D.A. Charles Hynes stood firm. "Michael Vecchione is not guilty of any misconduct," Mr. Hynes said at the time. He, Mr. Vecchione—who is now chief of the rackets division—and a spokesman for the D.A.'s office all declined to comment, citing likely litigation by Mr. Collins. Mr. Collins walked out of prison on June 9, to an emotional welcome from his family. He has had many Rip Van Winkle moments. Swipe cards have replaced tokens on the subway; coffee shops called Starbucks are everywhere; there are these devices called iPhones. But some things haven't changed. Mr. Collins is back in a law library. His attorney, Mr. Rudin, has hired him as a paralegal. Mr. Collins is first concentrating on his own case. He has filed "notices of claim" announcing an intention to sue the city and state for $60 million. As a paralegal, he can't give legal advice to the many inmates who have written seeking it. He hopes one day to change that, by becoming an attorney. Write to Sean Gardiner at sean.gardiner@wsj.com

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