On January 12 this year, Lucas Betancourt, a felon convicted of various forms of kidnapping, burglary, robbery and attempts thereof received word that his request to a judge to have his convictions vacated and reversed had been granted [PDF]. The sole basis for the granting of his petition and the reversal of his convictions? Unsurprisingly: prosecutorial impropriety. Specifically that the prosecutor had violated her1 obligations pursuant to Brady v. Maryland, United States v. Bagley and Giglio v. United States. As summarized by The Open File:
One of the chief witnesses that [prosecutor Gail] Hardy used to obtain Betancourt’s conviction eleven years ago was an alleged co-conspirator, Felipe Buitrago. He was central to the case partly because the victim could not identify the perpetrators. Six months before Betancourt’s trial, Buitrago had pled guilty to his own role in the crime and been sentenced to five years in prison, followed by five years of probation. This much, Betancourt’s defense was aware of.
Of course, what the defense wasn’t told is that Hardy and Buitrago had “entered into a plea agreement, prior to the giving of his testimony, to consent to his motion to seek review of his sentence,” after he testified at Betancourt’s trial.
In sum, here’s what happened:
- On direct, Hardy did not elicit from Buitrago that they had a deal in place in exchange for his testimony.
- On cross examination, Buitrago was extensively cross-examined regarding any incentives from Hardy, including sentence modification.
- On cross examination, Buitrago specifically testified that although he knew what a sentence modification was, he was not hoping to receive consent to have a sentence modification heard by the state and had no intention of applying for a sentence modification.
- Hardy did nothing to correct this false testimony.
- In fact, Hardy argued during closing argument that Buitrago was reliable and there was no evidence established to doubt his testimony.
- 9 months after Betancourt was sentenced to twenty-five years to serve, Buitrago filed a sentence modification.
- Hardy agreed to have the sentence modification heard.
- Hardy agreed to the modification.
- Hardy agreed to modify the sentence by 50%.
- In order to effectuate such a massive modification, Hardy had to substitute the charges Buitrago had pled to, to ones that did not carry mandatory-minimums, which she did.
- She stated during the modification hearing that Buitrago’s testimony had been crucial to Betancourt’s conviction.
Once again, a conviction – usually touted as a victory for justice – had been obtained by unsavory and unfair means; by cheating. So who’s going to pay for this? Certainly Betancourt because he served many years in prison for something he may not have done. But who else? Not Buitrago. He got his 5 year sentence cut in half. Certainly not Gail Hardy, who was in Waterbury when this happened2 and who has since gone on to become the chief prosecutor in Hartford. If there have been no sanctions or repercussions for Terrance Mariani or Sharmese Hodge then why would there be any for Ms. Hardy? If Andrew Benson can mock the defense during his closing argument and pretend to be asleep and go on to become a judge in Maine, why do you think anything would happen to Ms. Hardy for allowing her witness to lie on the stand?
Almost one whole year ago, I wrote a series of posts about the lack of accountability for prosecutorial impropriety in our system and the fact that it was a conversation we desperately needed to have. The first post was inspired by a string of reversals because of impropriety that resulted in no sanctions for the offending prosecutors. The second was an attempt to explore options for holding prosecutors accountable.
A full year has gone and we are no closer to finding a viable solution. But that doesn’t mean that misconduct has disappeared. Quite the opposite. It has continued unabated but we know who pays for it: we do.
We pay for it in the form of tax money that is used to fund compensation accounts for the wrongly convicted. Just this month, the claims commissioner J. Paul Vance Jr. has made two sizeable awards to 5 different people who were wrongly convicted: $4.2 million each to Carlos Ashe, Darcus Henry, Sean Adams and Johnny Johnson and $6 million to Miguel Roman, totaling in excess of $23million this year. This money comes out of our pockets. Of course, I don’t mind paying, because I think this is just compensation and then some for spending 18 years in prison. You couldn’t give me $4million if the condition was to spend a year in prison, let alone 18.
Yet the first award by Vance has given rise to a controversy and been the subject of criticism, because he didn’t find that they were actually innocent, merely that the charges were dismissed on grounds consistent with innocence. To some – notably agents of the state – that’s not enough:
Senate Minority Leader Len Fasano, R-North Haven, who has been in contact with the murder victim’s family, said Vance’s decision was an outrage.
“It is clear they need to be found innocent for damages. I think Paul Vance is absolutely wrong. I think he has no justification for it legally,” said Fasano, a lawyer whose district abuts New Haven. “I think what we should do in the event we have a claims commissioner who apparently has misread the statute, we should allow an appeals procedure.”
“Here, there is absolutely no evidence as yet in the record to show that these claimants are innocent,” wrote Assistant Attorney General Terrence M. O’Neill, whose office readily concedes the men deserved a new trial. “While there can be no doubt that a significant prosecutorial error constituted a significant defect in their prosecutions, that defect does not, in and of itself, establish innocence.”
So, clearly, the solution is to fault the commissioner and the system for allowing him to conclude that their dismissals were consistent with innocence:
Without commenting on the appropriateness of Vance’s decision, Rep. William Tong, D-Stamford, co-chair of the Judiciary Committee, said he expects the law to be reviewed this session with an eye toward creating a venue for the state to appeal.
Certainly no one is asking: what of the prosecutor? What is to be done about the misconduct that leads to these unfair convictions? Why do we not have a system in place to review prosecutors whose conduct has been held to be improper and determine whether they need some sort of remedial training or suspension? Do we continue to pay the compensation of men who have had their liberty wrongly snatched away by an overzealous or unethical prosecutor?
Or do we say the American justice system is much more than the results that it spits out. That we care as much about fairness as we do about guilt or innocence? That it is not enough that for every instance of impropriety we reverse a conviction and then ignore it, pretending it never existed, leaving those that committed the injustice free to do so again.
It’s time to give process its due.
- Gaily Hardy, current State’s Attorney for Hartford, whose name is missing from the decision reversing the convictions but was uncovered by The Open File. ↩
- For those who don’t know, Waterbury’s chief was John Connelly, who is now deceased. Waterbury has sent the most people to death row in CT by a LOT (http://apublicdefender.com/
2012/09/04/racial-disparity- to-finally-take-center-stage/) . There were some noises about him and there was a federal probe (http://apublicdefender.com/ 2010/08/10/cts-top-death- prosecutor-in-federal-probe/) and he resigned his post right before the Criminal Justice Commission was getting ready to take some action (http://apublicdefender.com/ 2011/01/14/prosecutor- connelly-resigns/). When Hardy came to Hartford, as an outsider, there was a lot of outrage (http://apublicdefender.com/ 2007/07/13/new-chief-states- attorney-for-hartford- appointed-impact-on-death- penalty-policy/and http://apublicdefender. com/2007/07/19/top-prosecutor- controversy-wont-die/). Waterbury is also where weird stuff like state police wanting an arrest warrant for a judge who refuses to issue another arrest warrant happens (http://apublicdefender.com/ 2011/03/25/state-police-want- to-arrest-judge-who-refused- to-sign-arrest-warrant/and http://apublicdefender. com/2011/03/29/arrest-warrant- for-judge-rejected-if-it- existed-in-the-first-place/). ↩