Saturday, January 2, 2021
They say* the only thing rarer than steak tartare is a prosecutor being disciplined for failing to disclose material exculpatory evidence pursuant to Brady v. Maryland. But the case of Glenn Kurtzrock is an exception.
On May 9, 2017, the former homicide prosecutor was caught withholding exculpatory material from Messiah Booker, a man charged with first-degree murder who had maintained his innocence. Mr. Booker was arrested and spent more than 18 months in jail awaiting trial before his defense lawyer discovered that Mr. Kurtzrock had altered hundreds of pages of police records to remove a wealth of exculpatory information, including evidence pointing to another suspect he knew Mr. Booker’s lawyer had been investigating. The prosecutor had also removed the covers of two police notebooks to make it look like his altered versions of the documents were the originals.
Upon discovering Kurtzrock’s violation of Brady v. Maryland and New York law, then- Suffolk County District Attorney Thomas Spota demanded Kurtzrock’s resignation and dismissed Booker’s murder charge mid-trial (allowing him to plead to a greatly reduced non-murder charge). The presiding judge called the case “a travesty of justice.” The District Attorney’s office proceeded to discover that three other defendants’ cases Kurtzrock was prosecuting (involving Booker’s co-defendants) were also tainted by misconduct, and dismissed those murder charges as well. The District Attorney’s Office launched an unprecedented review of all of Kurtzrock’s cases to see if any others were tainted by Brady violations.
On December 30, 2020, the New York Supreme Court, Appellate Division, Second Judicial Department, agreed, holding that
The evidence adduced by the petitioner fully satisfies the tripartite test for a Brady violation. A Brady violation is established when it is shown that “(1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” (People v Fuentes, 12 NY3d at 263, citing Strickler v Greene, 527 US 263, 281-282 ). Evidence that another suspect was involved in the shooting (John Doe No. 1) and evidence that undermined the credibility of key witnesses (Jane Doe No. 1 and Booker’s former girlfriend) was favorable to the defendant. The respondent suppressed this favorable evidence: the respondent suppressed the materials by his admitted failure to conduct any Brady review or analysis of the materials in his possession and to which he had access. The suppressed evidence was material: The respondent’s nondisclosures interrupted the trial, foreclosed a full trial record, prevented the defense’s cross-examination of Detective O’Hara, and precluded a jury verdict. The felony murder trial collapsed mid-trial as a direct result of the respondent’s nondisclosures, and this establishes the materiality of those nondisclosures.
Moreover, the court held that
The observation made in Berger [v. United States]—that a prosecutor must abstain from acting with impropriety to bring about a wrongful conviction—is trenchant in our time and most pertinent in the context of Brady. The failure of a prosecutor to produce favorable information to the defense as required by Brady may contribute to a wrongful conviction...A prosecutor’s zeal to obtain a conviction must be tempered by the obligation to act with responsibility, including the responsibility not to obtain a conviction of the wrong person. A conviction that is wrongful both punishes the wrong person and allows the truly responsible party to evade justice.
“[T]he prosecutor who deals forthrightly and flexibly with witnesses, defendants, and defense counsel serves both systemic values and his goals as an advocate...and...compliance with constitutional, statutory and ethical standards is not enough—the prosecutor must act within their full spirit, as well, and by doing so detracts not at all from the quality of his advocacy, but enhances it.”
Therefore, the court suspended Kurtzrock from the practice of law for a period of two years.