The patient work of videographer Eileen Clancy of I-Witness Video, led last month to proof that someone in the District Attorney’s office edited a video of Alexander Dunlop, who was arrested as he was going to get sushi. Dunlop was charged with pushing his bicycle into a line of cops and resisting arrest. Portions of the video that contradicted these charges were deleted from the video that the DA turned over to defense lawyers.
This followed proof in a December trial that Officer Matthew Wohl manufactured testimony when he claimed to have arrested a squirming, screaming Dennis Kyne at the RNC. Actual video of the arrest showed Kyne was cooperative with his arresting officer, who, incidentally, was not Wohl.
A 1963 U.S. Supreme Court case, Brady v. Maryland, requires the prosecution to turn over exculpatory material in its possession to the defendant. If a failure to do so is somehow discovered later, the conviction must be overturned. But what are the consequences for an officer or assistant district attorney who is caught testifying or thwarting Brady’s mandates?
The incidents made national news, thanks to reporter Jim Dwyer, who broke the story in the New York Times on April 12th. The disclosures seemed to have immediate and dramatic effect, specifically upon DA Robert Morgenthau’s office.
One beneficiary was Julia Cohen, an NLG legal observer who was arrested at the August 26 Critical Mass bike ride, despite her green hat. Her trial was scheduled to commence on April 14, two days after the New York Times story.
But on the morning of her trial, Assistant District Attorney Zachary Johnson walked into the courtroom and declared, “We have 30 to 50 additional videotapes for the defense.” He offered to make them available for copying (at Cohen’s expense), provided Cohen agree to adjourn the case.
Cohen received a total of 53 additional videotapes. The ADA had previously told the court it turned over all relevant material when it released three tapes to the defense. No explanation was offered.
Cohen’s trial ended in acquittal on May 10.
A spokeswoman for the Manhattan District Attorney’s office, Barbara Thompson, said she was unaware of any change in the practice of turning over exculpatory material since April 12. “We turn over whatever is required by law. Whatever should be turned over, is turned over.”
When Dwyer’s story hit the New York Times, readers from as far away as California wrote letters to the editor expressing their outrage. Jerrold Nadler and the Congressional Black Caucus called upon Alberto Gonzales to investigate a “pattern and practice” of prosecutorial misconduct. DA Morgenthau and Mayor Bloomberg have yet to respond to these calls.
In order to restore public faith in the evenhandedness of the law, the DA must be more forthcoming about who was involved in editing the Dunlop videotape. The DA said it began an investigation into the perjury of Officer Wohl in January. Those results must be released.
Otherwise, it will remain historically true that no prosecutor in any jurisdiction has ever been significantly punished for his or her collaboration in obtaining a false conviction.
The People’s Lawyer is a project of the Nat’l Lawyers Guild, NYC Chapter. Contact the chapter at www.nlgnyc.org or at (212) 679-6018.