Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Monday, April 18, 2005

Manhattan Prosecutor: Will DA face ABA ethics investigation over fabricated RNC demonstration videos?

Opponent: Leslie Crocker Snyder.

A prosecutor knew he had a problem. But his office fabricated evidence. And it was on tape.


Just prior to the RNC demonstrations, the DA publicly stated that manning in the DA's office would be low despite the increased workload. Also, the number of courts increased from 4 to 12.

It remains to be understood to what extent the DA failed to adequately supervise the personnel under his immediate control to ensure that the video evidence was appropriately prepared.



DR 1-104(A)(4)


The buzz on the street is the DA is under some special scrutiny.

Indeed, it just keeps getting worse for Manhattan DA Robert M. Morgenthau. Attorney misconduct and sanctions are rising according to the ABA.

Now the local media is no longer saying "Allegedly" when talking about the DA office active involvement in fabricating evidence. They're saying flat out that
the Manhattan District Attorney's office altered a videotape Ref
Why is the United States judicial system shifting to one of "guilty by allegation, until proven innocent with overwhelming evidence?" The DA in Manhattan seems to have it all backwards. Even the video splicing. The issue of "sufficiency of evidence" arises.

One of the responsibilities of a prosecutors isn't simply to prosecute, but to ensure that justice is administered fairly. Indeed, this is purely theoretical as some prosecutors may take sides. In fact, they do.

Review the RNC-timeframe statements

Outside investigators need to carefully review of the public statements the prosecutor made in re the arrests. Ref: "a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused."

The fabricated stories are not isolated to videos

There are other photos. Yusuke (Josh) Banno contacted a still photographer proving his innocence. An "unidentified undercover cop identified him as the man who caused Park's injuries."

The problem is not isolated to NYC. Other reports from other jurisdiction continue. Portland has a reputation for fabricating evidence.

New York County District Attorney Robert Morgenthau has reportedly launched an investigation into Officer Wohl. Wohl has been reportedly been accused of fabricating evidence, making false statements. Cherry Hunter did not disclose whether formal charges had been filed.

A6 does not have a "knowing" standard; only that the DA is prohibited from being part of something that creates evidence that is "obvious" is false.

  • What role did the DA have in the creation of the evidence?

  • What role did the DA play in previous convictions related to video and still photography?

  • How often has the DA met directly or indirectly with technicians and or management over "what kinds of evidence" is needed to secure a conviction?

  • What direction, advice, or information did the DA give to officers about "what information is needed" in order for there to be an arrest?

  • Please discuss the nature of the DA-provided training to officers just prior to the RNC hearing on the standards of evidence, the elements required for a conviction, or the types of charges that the public would most likely find outrageous.

  • Did the officers knowingly "meet this level of evidence" by fabricating evidence, testilying?

    The rules states that the DA shall nott "6. Participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false."

  • Did the DA have any direct or indirect role in awarding year-end bonuses to officers based on their conduct during the RNC demonstrations?

    Looks like Sheryl McCarthy at Newsday has some interesting pieces on the way. Keep up the pressure on the scumbags in the police department, Sheryl. God knows the DA's office might fabricate some more videos if it suits their political objectives.

    Where to start

    Review Morgenthau's statements before City Council's public safety committee.

    Specifically, the DA knew that there would be inadequate funding for all the Assistant DAs. So why should anyone believe that the DAs, due to lack of funding, had the requisite skills, oversight, management needed to properly guide the police prior to the RNC demonstrations?

    Also, consider the the number of courts, increased from 4 to 12. This was a known requirement. It remains unclear to what extent the DA, police chief, and city officials took this expanded court platform as a green light to fill the spaces to justify the increased budget allocations.

    Previous ethics options

    More over, the DA knew going into the demonstrations that there was insufficient budget available to hire requisite assistant district attorneys. This "increased workload with inadequate resources" appears to have already been decided in the social services area.

    It is clear that a lawyer should only do what they can reasonably be expected to do. In the case of the RNC demonstrations, it is clear that the workload was foreseeably anticipated to increase, but the resources to management the DA's office were knowingly expected to fall.

    We are guided by the following:
    Nor may the staff attorney accept so many matters that the attorney would have no choice but to handle some neglectfully or incompetently.
    Again, it remains a matter of law for the court to decide whether the District Attorney during this nexus of "heightened burden and diminished staff assistance" negligently supervised the staff, or failed to take reasonable efforts to ensure that the work products were in compliance with the rules of evidence.

    If the DA was not directly overseeing the video technicians, then which of the assistant district attorneys were involved; and did the DA know that, despite the increased workload, that the available attorneys were not sufficiently experienced to adequately supervise, coordinate, and discuss evidence matters prior to litigation?

    It remains a matter for the court to decide whether the DA's oversight and supervisory actions were so overburdened and taxed that no reasonable attorney would continue to present evidence when the supervision was low at a time of increased litigation risk.

    It remains a matter of law whether this nexus would create a foreseeable situation where personnel under the DA's responsibility would be entitled to greater oversight, better management, or additional alerts. We are no persuaded that, despite the anticipated workload and foreseeable increase in 1983 claims and subsequent litigation risks, that the District Attorney's office can credibly state that the technicians were outside special oversight.

    Indeed this would reasonable shift greater responsibility to the DA for the failures of the police force in that the DA, arguably:

  • [a]knew or should have known about the manning shortfalls;

  • [b] was aware of the increased workload and chance of litigation due to 1983 claims; and

  • [c] despite knowing of both the lack of resources and imminent increase in requirements, failed to ensure that the video technicians were properly supervised.

    Again, the testimony before the public safety committee needs to be examined more closely to find out what the public was reasonably led to believe would be done; the scope of the DA's knowledge of the legal counsel shortfall, and the reasonable efforts the DA should have taken in this vacuum to ensure the video technicians were adequately supervised.

    It does seem absurd that the DA would know in advance of a disconnect between increasing requirements and falling legal-oversight ability within the DA's office, but apparently do nothing to ensure that the personnel were more closely supervised during this period of increased litigation risk exposure.

    In my view, either the DA knew of the upcoming requirements and failed to supervise them more closely; or misrepresented the upcoming RNC workload in order to justify a 2006 budget increase.


    During the RNC demonstration and according to the DA's testimony before the police commission, there were inadequate assistant District Attorney's.

    It remains to be understood to what extent the requisite oversight of the district attorney's video staff and evidence preparation units were inappropriately delegated to non-lawyers.

    There is an ongoing requirement for supervision. If video personnel are not adequately trained, it remains unclear why, despite the already overburdened DA's office that the staff was apparently left so poorly supervised that significant documentary evidence was apparently created to leave a materially false impression.

    Again, the DA represented to the police commission that there was a funding and manning problem at the very time that the RNC demonstrations were expected. We remain puzzled why, despite this known resource constraint, personnel were in a position to access, adjust, and modify admissible evidence without there being a plan in place to ensure that evidence was properly handled and that the photographic evidence represented in all respects correct, accurate, and truthful information; and/or that personnel in close proximity to this evidence were apparently properly trained, but failed to comply with appropriate evidence handling procedures.

    The conditions and resulting video and still photography evidence raise reasonable questions about the scope of procedural non-compliance: Are officers inappropriately handle evidence; is evidence inappropriately discarded; have officers taken evidence to non-approved discard facilities; have officers removed evidence from the facility and taken it home; has evidence been inappropriately removed from the Manhattan DA's office and placed in non-approved disposal bins at places close to where officers reside?

    1983 claims

    Also, of interest is the NYCLU claims against the police force. It remains to be seen whether NYCLU provides an amicus in re an ABA ethics investigation into Morgenthau. And how are those 1983 claims going?


    At at time when the DA knew that staffing would be a challenge, we are not surprised why the video technicians created materially false and misleading evidence.

    Yet, it is troubling that despite clearly promulgated ABA ethics opinions in re an attorney's duty to properly oversee responsibilities, that the DA apparently, despite this foreseeable disconnect between manning resources and an increase in workload, apparently failed to take extra care to ensure the evidence was appropriate.

    This is not to suggest that the DA's office is poorly managed. The DA's office already admitted that they had inadequate resources at a time when the foreseeable litigation workload would increase.

    Rather, what is more troubling is that it appears that neither the DA nor the police chief have taken special efforts during this challenging period to ensure that the officers on the street were better managed.

    We find the opposite. That the officers, during the RNC-demonstrations took advantage of the poor oversight from the DA's office, and knowingly make materially false and misleading statements to the court.

    This is troubling. Not just for the City of New York, but the country. At at time of social tension the United States has the obligation to show its best, despite the challenges.

    Yet, this problem for New York was not something which New York was thrust. Rather, New York actively lobbied to have the RNC and New York was actively lobbying for increased public awareness of the City's rebound following 9-11.

    No longer can New York, four years after 9-11, ask the nation, much less the world, to continue to give it a green light. Rather, what is needed is some more responsive leadership both within the Mayor's office, district attorney's office, and police chief.

    Some may have read many books about Churchill's wise leadership as the German Luftwaffe bombed London during WWII. But those stories cannot simply be relied upon as folk legend. Rather, the lessons need to be translated into effective leadership, plans, and results.

    We continue to hear in the wake of the WTC rebuilding effort that New York is going to rise from the ashes. That a new dawn is upon us. And that the City will prevail.

    This will only occur once the City chooses to embrace the situation on the ground as it is. In the case of the 2004 RNC demonstrations, peaceful citizens were lawfully engaging in constitutionally protected activities.

    At every juncture, it appears law enforcement has going out of its way to characterize lawful behavior as something deserving retribution from the 9-11 attacks.

    It is troubling when a nation refuses to respond to repeated warnings about a possible attack. The 52 FAA warnings were ample warning that there was a problem.

    Yet, in the case of the 2004 RNC demonstrations, even the DA gave a clear and resounding warning: That the city's resources were falling at a time when the workload was expected to increase.

    Yet, we continue to hear, despite this clearly articulated and foreseeable challenge, that the DA's office took a hands off approach to evidence collection. ON the contrary, the DA's office appears to have outlined in great detail for law enforcement the requisite claims and evidence needed to justify holding and detaining people in preparation for a visit to one of the 12 courts.

    In short, we argue that despite the foreseeable manning shortages within the DA's office, the DA failed to take reasonable steps to ensure all personnel under his direct control were appropriately supervised. We further argue that there is a reasonable basis to investigate the Manhattan DA for ethics violations in that he allegedly failed to supervise his staff; and negligently prepared for trial evidence which he allegedly failed to ensure met the appropriate standards of evidence; and that he allegedly recklessly failed to ensure the police force and police chief were held to a high standard of evidence.

    On the contrary, all the evidence we have seen points to a disturbing picture. We conclude that law enforcement was essentially coached on how to justify detentions, without regard to the facts on the ground; and that this widespread misconduct was foreseeable under the circumstances; and directly linked to the district attorney failing to ensure that his staff appropriately handled evidence.

    Request for Action

    Therefore, we respectfully request that any and all attorneys who have direct or indirect knowledge of these events provide immediately their evidence to the NY State Bar in preparation for an ethics investigation into the Manhattan District Attorney, Robert M. Morgenthau.