New York Law Journal Cites Legal Aid Chief Attorney's Assessment Of Brooklyn DA's Tenure

In a New York Law Journal article on the long tenure of Charles Hynes, the departing Brooklyn District Attorney, Steven Banks, the Attorney-in-Chief of The Legal Aid Society, described Hynes' legacy as a "complicated picture." Banks credited Hynes for the District Attorney's support for alternatives to incarceration and said his discovery policies are the best of any prosecutor in the City. But he also noted that The Legal Aid Society has 20 cases under review for their reliance on a now-retired detective, whose police work has come under question. "This number of potential wrongful convictions would be unprecedented," said Banks, calling the review and the cases a "troubling storm cloud" over Hynes' lasting mark." At the end of a very long tenure, what emerges is a picture that's neither black nor white," Banks told the Law Journal. "But it is instead a number of shades of gray."

The New York Law Journal
Pioneer Departs Leaving a Record 'Shaded in Gray'
By Andrew Keshner
New York Law Journal
December 27, 2013

Charles Hynes, an aggressive crime fighter who has been praised for his innovative community initiatives, leaves office on Dec. 31 after having been repudiated by voters who had chosen him six times as Brooklyn's top prosecutor.

The district attorney, who insists that he "made Brooklyn safer," will leave behind a legacy that has been muddied by reports of prosecutorial misconduct and wrongful convictions on his watch.

Hynes "is nothing short of a pioneer," said Richard Aborn, president of the Citizens Crime Commission of New York City, saying that Hynes "was prescient in understanding that for the criminal justice system to be effective, it had to be more than just arrest, prosecute and incarcerate."

As for a 73 percent reduction in the borough's crime rate from 1990 to 2012, it was "impossible" to know, how much of the drop was due to Hynes, said Aborn, but he "absolutely gets part of the credit."

Hynes' legacy is a "complicated picture," said Steven Banks, attorney-in-chief of the Legal Aid Society, whose organization represents 60,000 Brooklyn defendants yearly.

Banks credits Hynes for the district attorney's support for alternatives to incarceration and says his discovery policies are the best of any prosecutor in the city.

But Legal Aid also has 20 cases under review for their reliance on a now-retired detective, whose police work has come under question.

"At the end of a very long tenure, what emerges is a picture that's neither black nor white," Banks said. "But it is instead a number of shades of gray."

Hynes, 78, lost primary and general election contests he characterized as a referendum on his record to Kenneth Thompson, a former federal prosecutor and founding partner of Thompson Wigdor.

In his concession speech, Hynes said he had no interest in retiring, but he has announced no future plans. He declined numerous Law Journal requests to be interviewed for this story.

'A Hard-Working Lawyer'

Hynes, 78, was born and raised in the Flatbush section of Brooklyn. He was attracted to the law in high school and went on to receive his undergraduate and law degree from St. John's University, in 1957 and 1961, respectively.

He joined Legal Aid in 1963 and the Brooklyn District Attorney's Office, then led by Eugene Gold, in 1969. He quickly rose through the ranks, becoming the rackets bureau chief in 1971 and then first assistant district attorney in 1973.

"He was always a straight guy, a very serious guy. Just a hard-working lawyer," recalled longtime Brooklyn defense attorney Albert Brackley.

Governor Hugh Carey and Attorney General Louis Lefkowitz tapped Hynes in 1975 as special prosecutor to probe the mismanagement of state nursing homes. Using teams of investigators, auditors and prosecutors, Hynes' outfit secured almost 80 indictments by the end of 1976 alone.

In 1980, Hynes was tapped as New York City Fire Commissioner. In 1985, Gov. Mario Cuomo named Hynes a special prosecutor for the criminal justice system.

Hynes led the prosecution in the racially-charged "Howard Beach case," sparked in 1986 when white youths confronted several black men whose car broke down in the white neighborhood. One black man was beaten and another, Michael Griffith, was killed as he fled the attackers and was hit by a car. Hynes was the chief trial attorney in the case and obtained three manslaughter convictions.

Dennis Hawkins, now the executive director of The Fund for Modern Courts, was a special assistant attorney general working under Hynes during the nursing home investigation and the Howard Beach cases.

Hynes was "indefatigable" and "inspiring" said Hawkins, who later worked in the Brooklyn District Attorney's Office.

Defense attorney Ronald Kuby said Hynes' legacy "first and foremost will be Howard Beach. The way this tough-talking, white, Irish-American, Democratic machine guy was able to win the trust, affection and respect of diverse communities ripped apart by racist violence and do justice. At a time when the city desperately needed white people to stand up and say this is intolerable, Joe Hynes was one of the few who did."

Two years after Howard Beach verdict, Hynes won the 1989 Democratic primary as outgoing Brooklyn District Attorney Elizabeth Holtzman successfully ran for City Comptroller.

New Approaches

One of Hynes' first moves as district attorney was his 1990 creation of a dedicated domestic violence bureau. Over the years, Hynes did not shy away from discussing his mother's physical abuse at the hands of his father, whom he called a "drunk" and a "wife-beater."

Michael Polenberg, Safe Horizon's vice president for government affairs, said Brooklyn's bureau was the first in the city and among the nation's first. He said it came at a time when domestic violence was generally viewed as "a private matter," adding, "There was not an aggressive recognition of how much this crime rips families apart."

Polenberg said the office's seriousness about domestic violence was also later shown in its handling of strangulation cases.

Until 2010, strangulation was not a specified crime under the penal law. But even prior to enactment of a law that changed that, Hynes' office developed a questionnaire that helped prosecutors, police and advocates detect when a victim had been choked.

Under the new law, Polenberg said Brooklyn accounted for about a quarter of the strangulation cases—"not because there were more strangulations in Brooklyn, but because his folks had gotten out ahead of this issue."

"This is an issue he knows personally," said Polenberg. "I think it's a wonderful piece of his legacy."

Observers also praise Hynes for his work in diversion, reentry and his quick embrace of problem-solving courts.

Two commonly-credited Brooklyn programs are the Drug Treatment Alternative-to-Prison (DTAP) and Community and Law Enforcement Resources Together (ComALERT).

Launched in 1990, DTAP targets addicted non-violent felony offenders. The Brooklyn District Attorney website calls DTAP "the first prosecution-run program in the country to divert prison-bound felony offenders to residential drug treatment."

A 2003 study showed participants had reduced rearrest and reconviction rates, along with greater likelihoods of employment after completing the program.

ComALERT was created in 1999 and offers returning parolees services likes counseling, transitional housing and employment.

A 2007 study determined program participants were 15 percent less likely to be rearrested two years after prison release than a comparison group.

Hynes was also instrumental in the launch of the Red Hook Community Justice Center, a community court adjudicating low-level offenses with an eye towards preempting a defendant's future criminal behavior.

Greg Berman, director of the Center for Court Innovation, called Hynes the "initiator" of the court, which a study recently found to reduce recidivism, save taxpayer money and earn residents' respect.

"It's easy to say 'no' to a new idea. A new idea is always untested. …I felt like Hynes' default setting was 'yes' rather than 'no.' That makes him unique in the criminal justice system," said Berman, noting Brooklyn was the site to the city's first drug court, mental health court and domestic violence court.

Asked where Hynes got his ideas, Hawkins said "he reads, he talks to people, he actually listens. …He always encouraged us to reach out to academic communities, find out the new trends and how the system works."

In 1994, Hynes told the New York Times, "I never considered myself a historic figure. But you'd have to be fairly myopic to say I haven't done unique, nontraditional things. If the final epitaph is that I was an innovator for law enforcement, I'll be happy with that."


During this year's campaign, Hynes said he had a "serious track record as an innovator" but there was more he wanted to do before leaving office. 'Always Accessible'

Hynes ran an office of 500 prosecutors and 1,200 staffers, but defense attorneys and court personnel say they never had had difficulty penetrating the bureaucracy.

One court administrator said Hynes was "always accessible" himself or through his top staff.

"From the macro to the micro level, he was interested in moving cases, interested if we had a problem moving certain types of cases and anxious to take a problem-solving approach," the administrator said, noting Brooklyn was the "petri dish" for the city's problem-solving courts "because his office was so willing to participate."

According to state Division of Criminal Justice Services, Brooklyn averages between 75,000 and 96,000 adult felony and misdemeanor arrests a year. But many of those cases never end in jail.

Brooklyn consistently accounts for a sizeable portion of felony and misdemeanor arrests resulting in diversion and dismissal—between 56 and 75 percent of diversions for the city from 2006 to 2012 and between 32 and 50 percent for the state as a whole.

Beginning in 2002, Brooklyn's legal community was rocked by a series of cases of bribery and theft against judges. Hynes' office obtained convictions against three judges—Gerald Garson, Michael Garson and Victor Barron. Gerald Garson and Barron were sentenced to prison.

Hynes looked back on the cases with pride during his last campaign. He said in 2008 that the three cases were "more than the number of judges prosecuted in either state or the federal courts in New York's history."

Hynes also pressed high-profile charges against then-Brooklyn Democratic party leader, Clarence Norman Jr., securing convictions for soliciting campaign donations beyond the legal limit, stealing campaign funds and coercing Civil Court candidates into using favored vendors.

During the campaign Hynes claimed Norman worked on Thompson's campaign—allegations Thompson hotly denied.

Daniel Alonso, chief assistant attorney in the Manhattan District Attorney's office, who has previously handled public corruption cases in state and federal court, said that he had "nothing but admiration" for Hynes successful prosecution of the judge cases.

"The simple fact is public corruption cases are hard," Alonso said. "Bribery and secret deals, by their very nature, involve very few people, sometimes as few as two."

The "defense bar generally liked" Hynes, said Joyce David, a past president of the Kings County Criminal Bar Association, adding she too "always liked" him.


She remembered that Holtzman recruited staff from out of town, with elite educational credentials.

Her impression, shared by others, was that Hynes more often drew from talent at local law schools with more street smarts.

"Ivy League people don't necessarily make the best trial lawyers. These are the mean streets of Brooklyn," she said.

Defense attorney Wayne Bodden said that a "lot of times" the jobs of prosecutor and defense attorneys "really don't clash and not every prosecutor realizes that. Brooklyn has a higher realization than other counties."

Bodden remembered how Hynes once showed up at the funeral of another defense's attorney's significant other.

"I don't think that should go unnoticed. I don't think another of the D.A.'s would do that," he said.

Dogged by Criticism

Despite such positive reviews from inside the system, Hynes was dogged by criticism during his last campaign. Among other things, he was accused of showing too much loyalty to subordinates who would do anything to secure a conviction—controversial rackets bureau chief Michael Vecchione in particular.

Most recently, Hynes rejected Thompson's request to halt the payment of more than $285,000 to Vecchione in unused vacation pay.

Vecchione, who retired from the office earlier this month, could not be reached for comment.

As early as the mid-90s, Hynes has had to fight allegations his office did not press cases as hard in the politically-powerful Orthodox Jewish community.

A 2008 Jewish Week editorial said his office's stance on prosecuting sex crimes in the community ranged from "passive to weak-willed," criticism seconded by the New York Times.

Hynes has repeatedly rejected assertions his office is somehow soft on the Orthodox community.

He has also secured some hefty convictions, like a 103-year sentence for Nechemya Weberman, an ultra-orthodox man convicted of molesting a teenage girl over several years. The sentence was later reduced to a 50-year limit.

Michael Farkas, one of the attorneys for Weberman, who is appealing the conviction, said it was "absurd" to say Hynes "looked the other way."

"The issue of sex abuse in the Orthodox community is extraordinarily complicated by the unique culture of that ethnic group. There is intense pressure in the community for victims to remain anonymous."

Hynes' "actual record," said Farkas, "is one of attempting to break down those barriers. The extreme difficulty of that task should not be mistaken as a lack of desire on Hynes' part."

Hynes has also had to fight fallout from tarnished convictions.

In 2010, Eastern District Judge Dora Irizarry vacated Jabbar Collins' 1995 murder conviction, but not before ripping into the office and Vecchione, the lead trial prosecutor, for its handling of the case.

Hynes has acknowledged a Brady violation occurred in the Collins case, but insisted Vecchione had no knowledge of the violation and never engaged in misconduct.

He has said it was "beyond [his] understanding" how Irizarry could conclude Vecchione engaged in misconduct.

In Collins' pending $150 million civil action, Eastern District Judge Frederic Block let Collins proceed with a claim against the city that Hynes was "deliberately indifferent" to prosecutorial misconduct. Block said he "reluctantly" had to dismiss claims against Vecchione who had absolute prosecutorial immunity.

Hynes' alleged indifference was revealed "particularly in high profile or serious cases where arrest and conviction is most desired by the office," said Collins' complaint.

Collins argues Hynes failed to discipline prosecutors who ran afoul of discovery obligations. Moreover, Hynes' defense of their actions "ratif[ied]" or "signal[ed] his tolerance" of the misconduct.

Hynes insists that he has never been reluctant to discipline prosecutors guilty of misconduct and says the complaints against him involve a small number of case.

Hynes has said that he has forced 169 assistants to resign "mostly for problems with work ethic, some for ethical problems" and fired 40 staffers outright.

On one of his last days in office, Hynes was grilled for seven hours by Collins' attorney in a deposition for the lawsuit.

As the campaign proceeded, the office also was rocked by suspicion cast on approximately 50 murder convictions that relied on police work from Detective Louis Scarcella were wrongfully obtained.

The review was set in motion after prosecutors dropped David Ranta's 1991 murder conviction earlier this year, pointing to Scarcella's faulty police work.

Scarcella has rejected claims of wrongdoing.

Hynes named an outside panel to examine the convictions but was criticized for including close associates.

Banks of Legal Aid said the review raised "serious concerns."

"This number of potential wrongful convictions would be unprecedented," said Banks, calling the review and cases like the Collins matter a "troubling storm cloud" over Hynes' lasting mark.

Likewise, David, the Kings County Criminal Bar Association's past president, said prosecutors "should have known about Scarcella, a whole group of them. These guys played fast and loose." She is trying to have a case reopened for a former client she says was falsely convicted by one of Scarcella's colleagues.

Hawkins said, "Given the level of violence occurring in the late 80s and early 90s, there was a great deal of concern about solving homicide cases," noting detectives who could offer "prosecutable cases were well known"—such as Scarcella.

"If [Scarcella] came in with a case, of course ADAs read the reports, but Louis seemed to have the evidence," said Hawkins.

"I did not see a win-at-all-costs attitude. I don't think that exists. Knowing some of the people still there, it's hard to believe that changed," he said.

Hawkins said wrongful convictions were "awful" and "terrible" occurrences, but many people from—the defense to the jury—played roles in the final result.

Kuby, who is representing defendants in five Scarcella-related cases, echoed the point.

"There were lots of people in positions to do something about it" such as police, prosecutors, and judges, "and nobody did."

As the crack epidemic took hold, the city faced a "unique challenge and terrible things happened." Brooklyn, he added, was "ground zero" in the epidemic.

Nevertheless, Kuby predicted that fallout from the review would amount to a "footnote" for Hynes' legacy. Any vacated convictions are "going to be a massive, ugly stain on an entire era, but it doesn't specifically characterize the Hynes administration, which was no better and no worse than other boroughs, no better and no worse than his predecessor."