Judge Orders Release of 'Jailhouse Lawyer,' Blasts D.A.'s Lack of Remorse

Mark Fass

06-10-2010

In vacating a murder conviction and barring prosecutors from retrying the case, a federal judge in New York has lashed out at the Brooklyn district attorney's Office for failing to take responsibility for its prosecutors' alleged misconduct.

At a contentious, 90-minute habeas corpus hearing Tuesday morning, Eastern District Judge Dora L. Irizarry noted that petitioner Jabbar Collins, a renowned jailhouse attorney, had uncovered numerous documents while serving his 34-years-to-life sentence suggesting that prosecutors had withheld evidence, coerced witnesses and lied to the court and the jury.

However, in agreeing earlier in the morning not to oppose either Collins' habeas petition or an order barring retrial, the district attorney's office had conceded to a single Brady violation, which it claimed was unintentional.

Judge Irizarry called the office's lack of contrition "sad," "shameful" and "beyond disappointing."

"I didn't hear any kind of acknowledgment that things were done that should not have been done," Irizarry said.

Noting the "well-documented" evidence that prosecutors withheld evidence and misled the jury, Irizarry asked Assistant District Attorney Kevin Richardson "You stand by that? I think that is shameful."

Irizarry repeated that sentiment -- "I think it is shameful" -- a second time for emphasis.

In granting Collins' petition, the judge vacated the conviction, dismissed the indictment and barred prosecutors from retrying the case. The judge called her order "the most comprehensive relief" available in a habeas proceeding.

Richardson defended his office's actions, telling the court, "This office stands behind the conduct of [its] former assistant district attorneys and Assistant District Attorney [Michael] Vecchione, who prosecuted the defendant at his trial, along with the office staff and detective investigators who assisted them, and we deny each and every one of the allegations leveled against them."

Collins, who has been in state prison since 1995, is expected to be released in the next few days.

Collins was represented by Joel B. Rudin, a Manhattan-based defense attorney who took on the case in 2005.

The underlying robbery and murder occurred on Feb. 6, 1994. Abraham Pollack, a 35-year-old father of nine, was shot while collecting rents at a building he owned on Graham Avenue in Williamsburg.

An anonymous witness claimed that Collins was the shooter, and the following April he was convicted and sentenced to a minimum of 34 years in prison.

Over the next decade and a half, Collins went to great lengths to attempt to prove his innocence and the prosecution's misconduct. When his Freedom of Information Act requests were ignored, he filed pro se state and federal lawsuits, which unearthed numerous previously unreleased documents. He conducted at least one undercover investigation, pretending to be a prosecutor while calling a witness via a prison telephone.

Collins' efforts, as acknowledged by Irizarry Tuesday, produced substantial evidence that the prosecution, headed by Vecchione, who now oversees the office's rackets division, withheld evidence, threatened witnesses and made material false statements to the trial court.

One document showed that a key prosecution witness had been jailed as a material witness in order to ensure that he would testify. At trial, Vecchione had ridiculed the defense for suggesting that any witness had been pressured to take the stand. Other documents suggested plea arrangements and other deals that the district attorney's office had steadfastly denied.

A witness who testified last week put a face to Collins' paper trail and foreshadowed the possibility of damning testimony against the district attorney's office.

Angel Santos, who testified at trial that he saw Collins running from the scene of the crime, told Irizarry that, despite an affidavit in which Vecchione claimed that "no witness had to be threatened or forced to testify," Vecchione had told him that he would "hit me over the head with a coffee table or lock me up for a couple of years for perjury" if he did not testify.

Santos also admitted to Irizarry that he had been a "24/7" drug user at the time he testified against Collins and was in fact likely on drugs when he allegedly witnessed Collins running from the scene of the crime -- none of which had been disclosed by the prosecution to the defense as likely required under Brady.

RELIEF GRANTED

Tuesday morning was supposed to mark the opening of an evidentiary hearing to determine whether the prosecutor's office, which had already stated that it would not oppose the habeas petition, should be barred from retrying the case.

However, in a motion that the two sides negotiated Monday evening, Rudin, Collins' attorney, told the court that the district attorney's office was agreeing to Collins' unconditional release.

The motion cited the office's failure to inform the defense prior to trial that a witness had temporarily recanted his allegations -- the Brady violation to which prosecutors had already conceded.

Richardson told the court that the prosecution nonetheless stood by its original conclusions regarding Collins' guilt. He added, "It is the opinion of the office, based on the weaknesses that now exist with the witnesses and the unavailability of portions of the physical evidence, that to retry the defendant is no longer a viable option and that we can no longer secure against him a conviction beyond a reasonable doubt."

The decision to agree to an order granting Collins all of the relief he requested made the scheduled evidentiary hearing not only technically unnecessary, but also beyond the jurisdiction of the court, Irizarry concluded.

After the hearing, Rudin told reporters, "I was looking forward to confronting [Mr. Vecchione] with his affidavit and his statements at the trial, and comparing those with the truth. Obviously, in the final analysis, the district attorney's office didn't want to expose Mr. Vecchione to cross-examination."

Rudin said that he probably would file a civil action against he state.

"Everything will be studied at the appropriate time," Rudin said. "It's not going to end here."

Rudin was joined by his associates Terri S. Rosenblatt and Benjamin Fishman. Rudin's previous high-profile victories include a 1992 reversal for Alberto Ramos, a Bronx man who had been wrongfully convicted of raping a 5-year-old girl.

District Attorney Charles J. Hynes answered questions about the Collins case following a press conference Tuesday afternoon at his office announcing the donation of 500 pairs of shoes to the Family Justice Center.

Hynes said that his office would not conduct an internal investigation of Vecchione or any other prosecutors involved in the case, as the only evidence of any prosecutorial wrongdoing was the single Brady violation, which the prosecutors discovered and reported on their own. Hynes said his office ended its opposition to the proceeding because the case had become unwinnable, and that the timing had nothing to do with Vecchione's imminent appearance on the witness stand.

"Anyone who knows Mike Vecchione, who has ever seen him in action, knows that he is a very, very principled lawyer," Hynes said.