Where Were the Prosecutors?

Exonerations of wrongfully convicted persons continue to climb. A record number of false convictions were recorded in 2015 - 149 innocent people who spent much of their lives in prison were released, bringing the total number of exonerations since 1989 to 1,753. (New York has the second highest number of exonerations, topped only by Texas). It used to be conventional wisdom that no innocent person ever got convicted. Now, it's so common that the media gives the event a momentary headline, and then moves on. There is no post-mortem on how these human tragedies happened. The big questions are never asked, so never answered. How did it happen? Who is to blame? What can be done to prevent its recurrence? The person who spent over 25 years - 8,000 days - in prison for a crime he didn't commit, the children who didn't see their father for most of their lives, the parents who died while their child was in prison, surely deserve to know not merely that the system of criminal justice crashed, but how, why, and who is to blame?

Last week, another false conviction in New York City was reported, and not surprisingly, in a case from the Brooklyn District Attorney's Office. Andre Hatchett is the 19th person freed by D.A. Kenneth Thompson since Thompson took office in 2014. Hatchett spent 25 Years in jail for a murder he didn't commit. In reviewing Mr. Hatchett's case, and hundreds of other false convictions, there is a common theme that runs through virtually all of the cases, and produces the calamity. For good or ill, the prosecutor is the official who alone determines whether justice will be done, whether a defendant who may be innocent will be brought to trial, and whether the proceeding will be a fair one. In states with capital punishment the prosecutor alone decides whether a defendant will live or die. More than anyone else, the prosecutor is responsible either for bringing about the conviction of an innocent man, or for failing to prevent it.

We know that serious misconduct by prosecutors brought about over one-third of the false convictions. But even in the absence of misconduct that violates the rules and causes false convictions, prosecutors in so many other ways can recklessly and with deliberate indifference to the truth engineer incredibly weak cases to get a jury to convict. Prosecutors in far too many cases know their evidence is weak, know their witnesses are unreliable, know the defendant has a credible alibi, know they are a powerful presence in the courtroom and are trusted and respected by the jury, know they can overwhelm an overmatched defense lawyer, and know they can win, even with a weak hand.

It's not clear what pushes some prosecutors to seek a conviction even in a weak case in which there are so many alerts that the defendant may be innocent. Are these prosecutors scared of being seen as weak? Are they simply focused on getting ahead in the office? Are they afraid of confronting victims with their opinion that the evidence is too flawed to present the case to a jury? Are they afraid of confronting macho detectives with their opinion that the case should not be prosecuted. How else can one explain the failure of dozens and dozens of Brooklyn prosecutors to face up to the egregious misconduct of Detective Louis Scarcella in coercing and tricking false confessions from over 70 innocent men and women. Where were the prosecutors? How could they not see this perversion shouting at them to look?

Take Mr. Hatchett's case, a man who was accused and tried in 1991 for beating to death a young woman in a Brooklyn park. The two had been together earlier in the evening when Mr. Hatchett had given her money to buy drugs. The murder charge was based on the testimony of one Williams, who claimed he watched from 30 to 40 feet away as Hatchett forcefully beat the victim to death and then dragged her body across the park. But the prosecutors had to have been extremely skeptical of Williams's account. Williams was a career criminal who came forward only after he had been arrested for a burglary a week after the killing, and after he had identified someone else as the killer. There was no evidence to corroborate his story. And shockingly, the prosecutors accepted Williams's account even though they had to know it was virtually impossible for Hatchett to have done what Williams's claimed he did. Hatchett was physically disabled, barely able to walk, hobbling on crutches, having suffered serious bullet wounds to his throat and lower body as a bystander in a shooting the previous year. He had an IQ of 63, with a reading and writing ability of a first grader. He had a credible alibi, and had cooperated with the police. His trial lawyer was so atrocious that the judge in the first trial had to declare a mistrial, and at the second trial his lawyer failed to present any evidence of Mr. Hatchett's mental deficiencies or that his injuries would have made it virtually impossible for him to have committed the crime the way Williams said he did..

The Brooklyn prosecutors knew all this. They knew that Williams was an untrustworthy witness, most probably lying to help himself, and that there was nothing to support his story. The prosecutors knew that after his arrest and willingness to cooperate Williams identified someone else as the killer which, alarmingly, the prosecutors never revealed to the defense. The prosecutors had to know that given Hatchett's severe physical handicap he could not have committed the killing the way Williams said he did. And the prosecutors knew Hatchett had a credible alibi, a low IQ, and a lawyer who was a disgrace. Were the prosecutors scared of dismissing the case? Did they try, unsuccessfully, to get Hatchett to plead guilty? Did they just decide to throw the dice, and let the co-called adversary system do its job, even though they knew the system was so badly skewed with an incompetent lawyer representing a physically and mentally deficient client.

What were these prosecutors thinking? Given the woefully weak proof of Mr. Hatchett's guilt, how is it conceivable that a prosecutor would allow such a case to go forward? Did it not ever occur to the Brooklyn prosecutors that they could likely be prosecuting an innocent man? How could they have reasonably believed that Williams was giving them a truthful and reliable account, especially given his criminal background, his self-serving cooperation with the police after he was arrested, his initial identification of someone else, and his description of the killing that would have made it impossible for Hatchett with his physical disabilities to have committed the crime. And did not these prosecutors understand, or even care, that the lawyer representing Hatchett was incompetent and certainly no match for the prosecutors?

The prosecutors should never have allowed this case to go to a jury because juries make mistakes. Juries believe eyewitnesses are credible, that confessions to police are true, that experts are reliable, sometimes even infallible, and that prosecutors are honorable people who do the right thing. Many are. But many are not. And the close to 2,000 exonerations, and the thousands of other innocent defendants who may be in jails around the country, tell an unsettling story about some prosecutors.

Andre Hatchett spent 25 years in prison for a crime he didn't commit. While in prison he lost both his parents and a son. His case is shocking, but not unique. He was put there by prosecutors who lacked the judgement, the courage, and the integrity to decline to prosecute a case they knew was untrustworthy and unsafe, against a man they reasonably believed was innocent. They could have prevented a jury from making a tragic mistake. But they didn't. They took the easy path, and never looked back.

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