Questions From the Class: Part #5

Management Resources principles Bob Rahn and Kim Anklin were honored to be included in Penn State’s online course, Presumed Innocent? The Social Science of Wrongful Conviction. Interviewed extensively about the wrongful conviction and exoneration of Jonathan Fleming, many questions arose from the class. Kim Anklin has been answering questions from students in the forum, “Ask Kim Anything.” Although the class is complete we are reprinting some of the general entries with the hope that readers will learn more about these types of investigations.

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Were any of the government agents involved in withholding the evidence of Fleming’s alibi (being in Florida) prosecuted? If not, why not?

Lester, this question is not only a great question it is probably one of the most important questions to keep asking if we are to reduce the possibility of being wrongfully convicted in the future.

The answer to your question has anyone has been prosecuted for their part in withholding evidence in the Fleming case is a resounding no. Since Fleming’s case was tried in Brooklyn, NY, I’ll answer based upon the efforts being made here. According to the National Registry of Exonerations, from 1989 – 2012 New York is the fourth in the nation in wrongful convictions. It will be interesting to see where we rank after the close of 2014. However, make no mistake this is not a New York problem, we are experiencing exonerations across the country.

Almost immediately the news of Fleming’s exoneration and the reasons for his conviction went global. If you Google the case, you will see how fast and how wide spread this case took hold. I feel the reasons can be found in the thousands of comments throughout the world that have a common response theme of bewilderment, compassion and then outrage. Your very question has been asked most likely thousands of times throughout the world, and that is just this case.

I will try to be brief; although you can see in prior posts being brief has been a challenge. The recent number of people being exonerated has finally made the issue prosecutorial misconduct a topic being talked about amongst the general public. It has longed been an issue that criminal defense attorneys, and some very out spoken professors, have written about for decades. Now, we are seeing just how damaging it is from cases such as Fleming’s.

One of the issues is that while we respect the hard work and public service of many prosecutors, there are those who continue to violate the ethics rules and laws, such as with disclosing to defense attorneys any information that is favorable or exculpatory to the defense. It is their obligation to disclose this information in order for the accused to receive a fair trial, set appropriate punishment if guilty, or fairly negotiate a plea deal, even if the defense did not ask for it. Also, even if the evidence cannot be directly used at trial, the Supreme Court ruled in 1963 (Brady v. Maryland) that evidence that is favorable to the defendant must be turned over as it may provide investigative leads that may reveal additional favorable evidence.

If you look into this subject closer, you may find there are enforcement mechanisms such as attorney disciplinary committees and judicial sanctions that exist, but are not utilized. In addition, especially here in New York, these violations are rarely even dealt within their own offices. Why? Because for one, a system and the culture that rewards on high conviction rates, coupled with judges that are in fear of being harsh on prosecutors, has undermined any accountability. Two things happen, one the prosecutor is not held responsible, let alone prosecuted, and two it impacts the outcome of the case at hand. Therefore any reform needs to be outside of the court system.

Earlier this year, a first time bi-partisan bill was introduced to establish a state wide commission that would have the power to investigate complaints of prosecutorial misconduct, just as there is a similar commission of judicial conduct, and sanction prosecutors after a hearing. Although it did not make it out of the Rules Committee, hopefully it is presented until it passes. The District Attorneys Association argued that some of the disciplinary actions might conflict with the state’s constitution.

One final thought, any attorney other than a prosecutor can and has faced serious sanctions including disbarment for seemingly minor mistakes. Hiding evidence that is favorable and even exculpatory that destroys entire families is irreparable. Other direct costs include loss of precious resources to convict the right person, loss of public confidence, and failing to protect the public because the actual perpetrator(s) remain free.

celebratingManagement Resources Ltd of New York is a professional investigative firm licensed in New York and New Jersey. .  Management Resources is a member of the New York State Association of Criminal Defense Lawyers, Associated Licensed Detectives of New York, and Founding Members and Regional Directors of Investigating Innocence.

Bob Rahn and Kim Anklin are available for interviews or speaking engagements.  Contact ImaginePublicity at 843-808-08509 or email contact@imaginepublicity.com 

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843-808-0859 or contact@imaginepublicity.com

Members of the New York State Association of Criminal Defense Lawyers
Regional Directors, Investigating Innocence
investigating innocence, management resources, bill clutter, bob rahn, kim anklin
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