When Prosecutors Go Bad

by / Sep. 8, 2015 11pm EST

The Buffalo News, in an editorial last Friday, criticized Erie County Democratic and Republican bosses for putting District Attorney Frank Sedita on the ballot for State Supreme Court justice with no opposition. Which is to say, because they handed Sedita the 12-year appointment on a platter, neither party is giving the public a chance to vote on someone else.

There are a lot of reasons, the News points out, why the public should have better options. Sedita has a history of running away from cases brought to him by police agencies in the county. They bring cases with a lot of data, a lot of evidence, and he says, basically, “Take flight, unless you can give me a lock.”

 The News cites several cases in particular, all egregious: 

—“Ronald “Todd” Epps, whom Sedita refused to prosecute for the killing of Stacy Moss in 2009. To obtain justice, Orchard Park Police took their case to federal prosecutors who won a conviction last month on insurance fraud, arson, drug dealing and firearms violations – based on the premise that Epps killed Moss.”

—“…the cold case homicide of Patricia Rodriguez, even though Lackawanna Police Chief James L. Michel Jr. reported obtaining new evidence. Rodriguez, a 21-year-old mother of two, was stabbed more than 100 times in 1979 in Lackawanna’s Holy Cross Cemetery. So, last year, prosecutors in the office of State Attorney General Eric T. Schneiderman took over the case and won a murder conviction against Rodriguez’s husband, Michael Rodriguez.”

—“…Gabriele P. Ballowe in the hit-and-run death of Barry T. Moss. Police in Evans want to charge Ballowe in the 2013 fatality, but Sedita says the evidence is insufficient.”

To this we could add the case of Gregory Kwiatoski. He, with two other Buffalo Police officers, were indicted by the feds last year for using excessive force against four teenagers, including shooting them with a BB gun while they were in a police car, handcuffed. Why should the feds have taken up that case? Why didn’t Erie County pounce on it? 

Police agencies around the country love and often use the Los Angeles Police Department’s motto, emblazoned on every black-and-white, “Protect and defend.” That is what most cops do. It’s not always easy, but it is what most of them do all of the time. Sometimes they forget. Some don’t care. Our only defense against such memory- and ethical-lapses are the prosecutors, local and federal. This should have been a local pursuit. But it wasn’t, so the feds had to step in.

There’s more, but you get the point: Sedita, as a county prosecutor, is risk-averse. That’s not his job. If he won’t go for anything but a sure thing as a prosecutor, why should we expect him to be different on the bench? We need judges with the courage to make difficult calls, not the vision to see them coming and take flight.

The public needs protection on both sides: People should not be sent to prison because of lousy police work or because they can’t afford to mount a decent defense. Guilty people should not do more time than they are due because of prosecutorial ambition, and prosecutors should not be allowed to cheat.

Prosecutors violate our trust in them in two ways: letting villains go free (because they don’t want to risk losing a case, as seems to be the case with Sedita) and by cheating (allowing evidence they know is untrue; inviting reports of jailhouse “confessions” by cellmates, who immediately have their own charges dropped; stacking charges to extort a guilty plea they wouldn’t have gotten had they filed the only real charge; or by suppressing exculpatory evidence that they are bound by law to reveal to the defense).

When prosecutors lose a case because of misbehavior, all they lose is a case they wouldn’t have won anyway. I don’t know of any prosecutor who has done time because he or she was caught cheating. When they get away with it, an innocent person goes to prison or a guilty person goes to prison for far longer than he or she should have. Or a guilty person takes a walk because the prosecutor didn’t want to risk losing the case in open court.

Criminal trials are not, as the judge and opposing lawyers say on the first day about finding the “truth.” They are about winning. 

With rare exceptions, that is all a prosecutor or a defense lawyer cares about: Can I nail this case? Defense attorneys want to get their clients off or to get as little time as possible. Prosecutors want to win. Some of them want to win only in cases they believe are valid. Some just want to win. 

Does Frank Sedita have the ethical values and judicial courage sitting on New York’s primary trial court requires? We’ll never find out. We’ll never have an opportunity to discuss it in public. The Erie County political bosses have decided that is none of our concern; they will appoint whomever they want.

Prosecutorial misbehavior is nothing new. I first wrote about it in an article co-authored with Constitutional lawyer Herman Schwartz (then on the UB Law School Faculty) in Harper’s Magazine in February 1976 (“Prosecutor as Public Enemy”). 

What is new—or what has been going on all the time and we are now seeing in this egregious instance gone public—is for two political parties in one of New York’s most liberal and politically enlightened counties to put on the Supreme Court bench, with no opposition, someone they know doesn’t do his job. 

Sedita’s faults are his own problem. The betrayal of all of us by the Democrat and Republican power brokers in Erie county is ours. 

Bruce Jackson is an affiliate faculty member of the UB Law School. He is also SUNY Distinguished Professor, James Agee Professor of American Culture, author of 10 books on criminal justice issues, and co-director, with Diane Christian, of the film Death Row.