f/k/a archives . . . real opinions & real haiku

Never having been a public defender, I’m not a kneejerk hater of prosecutors.

However, I can’t let another day go by without saying that a series of con-

victions overturned due to prosecurtorial misconduct in Rensselaer County

[Troy], New York, is shameful and can only weaken the public’s trust in our

justice system.

In the latest case, involving defendant Burton Jeffrey Hunter, the district

attorney’s office failed to inform the defense, in an acquaintance rape case,

that then-17-year-old victim had accused another man she knew of rape only

two or three weeks before Hunter’s trial. [That’s two such charges within

eleven months. In addition, the “victim’s” father testifeid at trial that she had

accused him of rape when he tried to discipline her. Troy Record, Jan. 26,

2006] Hunter was convicted of sodomy, and has spent the past four years

in jail.

The fact of the second accusation came to light last year,

when Hunter’s trial lawyer, Paul DeVane was working out a

plea bargain for Delbert Parker, a Schenectady man convicted

of armed burglary and charged with rape. Parker told DeVane

that he had been accused of rape just before Hunter’s trial, by

the same young woman.

Current Rensselaer District Attorney Patricia DeAngelis was not D.A.

at the time of the trial, but was an ADA and had presented the case

to the grand jury. “[S]ources familiar with the case say she did most,

if not all, of the pre-trial work and then handed the case over to another

prosecutor.” (WTEN.com, Jan. 25, 2006).

When the issue was raised last year, trial judge Patrick McGrath agreed to

hear arguments for a newtrial, because the prosecution “failed to deny or

admit actual knowledge” of the material that could assist the defense. De-

Angelis was (unsuccessfully) running for county judge at the time and asked

for several extensions to answer the allegation. Not until Dec. 28, a few

days before the argument on the new trial, did she finally fax a stipulation to

Hunter’s counsel, saying that former prosecutor Mark Portin, who succeeded

DeAngelis on the case, never disclosed the victim’s subsequent allegation to

Hunter’s lawyer. (Albany Times Union, Jan. 5, 2006)

At the time of the hearing, I recall DeAngilis telling a tv reporter that

her office considered the fact of the second accusation to be “infor-

mation” but not evidence that had to be disclosed.

Judge McGrath disageed, ruling that Assistant District Attorney Mark Portin

improperly failed to inform Hunter’s attorney of the second accusation. Accord-

ing to the Troy Record (Jan. 26, 2006): Judge McGrath wrote:

“A prosecutor should not intentionally avoid pursuit of evidence

merely because he or she believes it will damage the prosecutor’s

case or aid the accused. . . A prosecutor has a duty to seek justice

and not merely to convict.”

McGrath noted that the “victim” was the only person who had direct knowledge

of the event and that establishing her credibility was paramount to a just verdict.

The Judge continued: “Surely, in the context of this case the People knew the un-

disclosed Brady material would have been useful to the defense. The only reason

not to divulge it would be for the People to gain some tactical and unfair advantage

that clearly violates the People’s professional responsibility.” Therefore, “The People

should be admonished for their failure to disclose the Brady information.”

None of this was persuasive to D.A. DeAngelis, who told the press: “While my

position on this matter has not changed as to our obligation to disclose this information,

the decision of the court is now the law in this county, and obviously we will prosecute

future cases in line with the court’s decision.” Two other sex abuse convictions were

recently overturned due to the misconduct or incompetence of DeAngelis’ office, along

with a fourth major conviction.

An editorial titled “Enough, Ms. DeAngelis” (Jan. 27, 2006), the Albany Times Union

called for the D.A. to step down, saying it quite well:

Justice is a more tenuous concept than ever today in Rensselaer

County, upheld by Judge Patrick McGrath but undermined by District

Attorney Patricia DeAngelis. It’s a familiar but depressing pattern, of

unfair and inept prosecution that requires judges to reverse convictions

obtained by the district attorney’s office or, in the latest such case, to

order a new trial for a man convicted of sodomy after critical evidence

was withheld from his defense lawyer.

When does it end? Only when Ms. DeAngelis steps aside as district

attorney. . . .

… Ms. DeAngelis has quite a bit less to say [than Judge McGrath] about

the denial of such an essential right of Mr. Hunter’s. Just like [tial ADA

Mark ] Portin, she doesn’t think the evidence that was withheld was

relevant to Mr. Hunter’s trial.

Her reaction to the vacating of Mr. Hunter’s conviction amounts to yet

another strike against Ms. DeAngelis and her office’s reckless approach

to criminal prosecution. The Appellate Division of the state Supreme Court

has reversed convictions obtained by Ms. DeAngelis or her colleagues

three times in the past two years for reasons of prosecutorial errors or

misconduct.

How much longer must the people of Rensselaer County put up with such

ignorance of the law in, of all places, the district attorney’s office? The same

voters who so wisely rejected Ms. DeAngelis’ candidacy for a judgeship of

her own last year remain stuck with her as county prosector.

“The prosecution has a duty to seek justice and not merely convict,” notes

Judge McGrath.

Such a reasonable statement, such a far-fetched notion.

I’m not as sure as the TU that the D.A.’s Office has made these mistakes out of

ignorance or incompetence. A former ADA is suing the D.A.’s Office, saying she

was fired for complaining about unethical conduct. Two days after the order was

issued for the new trial, Ms. DeAngelis had this statement:

“My number one responsibility as District Attorney is to ensure that

justice is served. My office has a conviction rate of 98 percent. This

is the result of a talented and dedicated staff who take their duty to

protect the citizens of Rensselaer County seriously.” (Capital9News,

Albany, NY, Jan. 27, 2006)

Justice 101: Convictions do not always equal justice. Overzealousness doesn’t assure justice. Often it prevents it.

After another dreary-gray winter day, I deserve some Tom Painting haiku — and so do you:

storm warning
the watercolorist works
in shades of grey

paint by number

the child’s river

escapes its bank

winter dusk
she paints her nails
deeper red

“bigToe”

false dawn
a ruffed grouse drums
the woods awake

spring plowing
a flock of blackbirds
turns inside out

Tom Painting

“winter dusk” – The Heron’s Nest (2003)

“storm warning” from The Heron’s Nest

“paint by number” – tug of the current: RMA 2004

“false dawn” – The Heron’s Nest