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How Prosecutor Win Rates And Informants Drive Wrongful Murder Convictions

By Nicole Flatow  

"How Prosecutor Win Rates And Informants Drive Wrongful Murder Convictions"

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In the American criminal system, one primary purpose of constitutional protections is to achieve justice by convicting the right person for the right crime. But prosecutors whose bonuses, promotions, and sometimes election are tied to conviction rates and prominent “wins” have perverse incentives to instead score any conviction at all. Recent reporting by investigative outlet ProPublica adds to the evidence that this sort of prosecutor misconduct too often goes unpunished, meaning there is little risk in manipulating the evidence and great reward.

In more than two dozen instances in which judges overturned convictions in New York citing explicit attorney misconduct, disciplinary action was almost never taken against these prosecutors, and only one prosecutor was disbarred, suspended, or censured. ProPublica’s Joaquin Sapien traces the trail of errors that plagued one such case by Assistant District Attorney Michael Vecchione, whose murder conviction who was overturned after Jabbar Collins spent 15 years in prison. The Brooklyn District Attorney’s office maintains Vecchione engaged in no misconduct, but the reporting, a civil lawsuit, and a criminal exoneration tell a different story. Vecchione, who refused to be interviewed for the article, submitted a sworn affidavit attesting that a former store clerk who worked nearby the scene of the murder had fled to Puerto Rico because he had been threatened by people involved in the case. Vecchione had never met or spoken to that former store clerk, Adrian Diaz, and Diaz later said he had never been threatened. Even more damning, Vecchione reportedly coerced the testimony of a witness who admitted he was drug-dependent and lying when he identified the perpetrator:

Edwin Oliva, a 29-year-old petty thief and drug addict, says he was a wreck as he sat in a chair in the Brooklyn District Attorney’s office in winter 1995. A year earlier, he’d told police a lie that helped implicate a possibly innocent man in a murder. Now, prosecutors wanted him to repeat his story in court; he wanted to take it back. [...]

But the prosecutors, Oliva says, weren’t having it. Collins, the man Oliva had fingered, had already been arraigned based in part on Oliva’s word. Collins, then 21, was sitting in a Rikers Island jail cell awaiting trial, and the Brooklyn District Attorney’s office was intent that he stay behind bars for a very long time. Oliva was going to be a critical witness, whether he liked it or not.

When Oliva refused to testify, the prosecutors, led by senior Brooklyn Assistant District Attorney Michael Vecchione, threatened to charge him with conspiracy to commit murder, Oliva says. Prosecutors then held Oliva for several days at Lincoln Correctional Facility, a minimum-security prison in Harlem. But Oliva held firm.

“I refused to testify to a lie,” he said in a sworn statement submitted years later in federal court.

Vecchione’s team, Oliva says, finally found a way to leverage him: Oliva was out of prison on a work release program, so prosecutors got the privilege revoked, and on March 1, 1995, Oliva was transferred to Ulster Correctional Facility, a maximum security state prison two hours north of New York City.

Oliva was brought back to the Brooklyn District Attorney’s Office for a meeting with Vecchione’s partner, Assistant District Attorney Charles Posner. According to Oliva, Posner told him that he could have his work release privileges restored if he’d testify against Collins.

“I felt trapped and desperate,” Oliva said. “And so I agreed.”

It is all too common for informants who testify against others to already be either suspects or defendants in other criminal cases, resulting in a cycle in which those who implicate or testify against others get shorter sentences, and those who do not suffer some of the most draconian punishments for sometimes minor, nonviolent crimes.

These cases are not limited to New York. In Alabama, a prosecutor who violated the law by withholding evidence that could have been crucial to the defense almost cost a man his life. And the same incentives that move some unscrupulous prosecutors to coerce testimony also encourage prosecutors to withhold exculpatory evidence they are required to disclose, and to deny DNA testing, that would provide conclusive, scientific evidence.

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