The Burden - Bonus Episode | Blame the Prosecutors

Hi, Steve Fishman here, creator of The Burden as well as the number one true crime podcast My Friend The Serial Killer. For those of you who liked The Burden, I have good news. Season two starts August seventh. It's a series called The Burden Empire on Blood and it's the director's cut of the true crime classic Empire on Blood, which reached number one on the charts when it debuted half a dozen years ago. Then the fat cat funders

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Nine a month Dax. You can sell me anything. Today's bonus is a little bit different than the ones we usually do. Today we want to make a case. We want to make a case for an investigation. And first we're going to make our case to you and our listeners. We hope by the end you'll agree something needs to be done. By the way, if you have any thoughts on this, or maybe you have some information, call us one eight three three eight Burden.

So let's start with what we know. Luis Scarcela is now regarded as a disgrace detective, the most notorious ex detective in New York. Twenty one cases Louis helped investigate have been overturned.

Today we're going to focus on the assistant District Attorneys, the eightas in the Brooklyn District Attorney's office. These are the lawyers who prosecuted those twenty one wrongful convictions. They had the power, the authority, the law degrees, but when it comes to wrongful convictions, they have often skated away free. For one thing. By law, the DA has immunity. This means someone who's been wrongfully convicted cannot sue the DA, he can sue the cops and Louis cases have cost

And yet one of Scarcella's eightya's had three convictions overturned another four. Any consequences to their career, Steve.

Yeah, they rose in the ranks, all right, but let's not get ahead of ourselves.

To lead the research, we tapped to distinguish Brooklyn based journalist named Ted ham.

So, Ted, can you introduce yourself?

Sure? My name is Theodore Ham. I prefer to go by Ted and I I am the chair of journalism at Saint Joseph's University in Clinton Hill, Brooklyn, and I've written extensively about Scarcella cases for The Independent India with a Y.

Ted's nickname is the Hammer, so it comes from Ham, your Land's name exactly, but it's adopted because.

Everything looks like a nail.

So, Ted, how'd you first get interested in Scarseller?

I first wrote about him in twenty seventeen for The Daily Beast, and then I've since followed his cases and on a few occasions over the last several years, I've been the only reporter in the courtroom covering some of the cases. I'm the only one there. I know that it's not a case they want to call attention to.

So fair to say that you are the Scarcella reporter in Brooklyn.

I'm not going to dispute that.

You're the guy who's been at it longest, been at it well the most.

Over the last six or seven years. Yeah, I would say so.

And by the way, Scarcella called me, he said, who's this guy, Ted Ham who's stalking me? I would say that from Scarcella's point of view, no love lost he sees ted Ham the Hammer as an antagonist.

Which makes today's episode interesting because I'd say that the Hammer's investigation supports some of Scarcella's basic contentions. Remember, Scarcella loves to point out that he didn't act alone. His cases had to sign off of the DA's office.

So Steve approached me in January and raise this question, which is you would think at some point the ada's who handle these cases, somebody would say, okay, well, we're reviewing Scarcelli's cases, but maybe the fact that they handled Scarcella's cases would lead them to examine these eightas cases.

Right, you did the math, you did the research. You came up with twenty one convictions of Scarcella related cases that have been overturned, huge number. We know that that's resulted in more than one hundred million dollars being dolled out of tax payer money and settlements.

And over four hundred years of wrongful incarceration.

So how do you go about finding out if an Ada has had other convictions deemed wrongful?

Well, the people who are familiar with the cases obviously are the defendant who typically has done extensive amount of research while they were in prison. On their case. And then there's their appellate lawyers, who often know other cases from their research and knowing other lawyers working on these cases and so on, and then there's always the newspapers. The prosecutors' names do turn up occasionally, but the DA's office never wants to disclose the name of the prosecutor,

Protecting their own or what.

The view is that they don't want to hurt morale, they don't want to scare off other prosecutors from coming to the office. They're going to be thrown under the bus or whatever you want to call it.

So just to be clear, you wrongfully convicted guys, send them to jail for decades, and then the DA's office is worried about your morale.

Ted as I look at your research, here's one thing that jumps out at me. Twenty one scar Seller cases have been overturned. Of the ada's who helped prosecute those cases, nine of them have had another fourteen convictions overturned that were not scar Seller cases. And that's just what you know by getting on the phone with people, right ted. It's not exhaustive.

Now, you would need to have the personnel files, I guess of the DA's office, and they're never going to turn those over.

So when you go through these twenty one cases, what's jumping out at you in terms of the involvement of the assistant district attorneys.

Scarcella himself, not to defend him, but just to explain what his position is is that he could not make any arrest and neither could any Brooklyn detective without approval of the die's office.

Here's Louis in his own words.

I brought every case the Brooklyn District Attorney's office, Esa Gomez, all the witnesses, they were vetted, and they all went along with my arrest They all went along with my arrests, and they convicted them.

So fair to say, I guess that when Scarceli says that it was the job of the district attorney to vet and evaluate the cases, that's accurate.

Right, But that doesn't excuse any misconduct on his part for just rounding someone up and bringing them in and figuring out how they can charge that person.

Yeah, but I don't see how a prosecutor could say, oh my god, I was hoodwinked by this detective.

I agree. That seems to be what their position is, that, oh, he fooled us. Well, that's shame on you, right, because how many times can they say that when they went forward with a bad case. Dozens upon dozens of times, not just Scarcela.

Let's get to this token boothcase. This is a colossal headline grabbing, awful murder. There's a guy who's a token booth clerk.

Harry Kaufman.

Harry Kaufman. Somebody goes up to that little slot in the front of the token booth, sprays in a flammable liquid. What is it lighter fluid?

I think something to that effect.

Es and then lights a match and creates an explosion inside the booth. This guy, Harry Kaufman, who's the token booth clerk, hangs on. He's got burns all over his body. He hangs on for two weeks and finally dies in the burnyard. This is a case of such incredible sadism that it just grabs the attention, grabs the headlines. There is an absolute drum beat to find the person guilty, person or persons.

Bob Dole, who was the front runner for the nineteen ninety six Republican nomination, used this as an example of urban insanity, crime out of control.

And so Louis Scarcella steps into this case, as he does with a number of high profile cases, and there's all kinds of pressure.

Scarcella and a handful of other detectives involved, because there were many. They got confessions from all three of the suspects.

Louis told us how he got one of the confessions, and it's pure Louis as bad.

Louie's wife had a terrible kitchen accident and had burns up and down her body. She too, had been in the burn unit.

I started talking to him about mister Kaufman was in the burn unit. Told him my wife was in the burn unit, told them how she suffered, told him how mister Kaufman suffered.

I hit a core. I hit a core.

Said I'll tell you if I can visit my girlfriend. We had conjugal visits and anybody tell you knows a liar. Okay, we even had them in the Brooklyn d A's office. I was able to get the confession.

And they indicted and prosecuted and sent three guys away for seventy five years. And they turned out that they were all wrong. Right, none of the evidence that they were using against the three of them held up. One witness was consorting with her partner in a car crime happened after midnight, and so they were having sex in the car, and then she claims that she saw two of the three right.

But initially this witness had said it was someone else, and then she changed her story, so her credibility wasn't questioned.

And then I went. One defendant called nine one one to report the token booth blaze, and then after the investigations proceeding, they bring him to the precinct and by the time he leaves the precinct, he's confessed to the crime. What motive would you have to call nine one one to report a blaze that he had, in fact had started. That's just ridiculous.

You're saying that the assistant district attorneys in this case mishandled it.

Right, Scarsella did not prosecute these three guys, right.

That's right. Three eighty's prosecuted it.

It was their obligation to wage Scarcella's and the other detectives' confessions versus other evidence that they had in the case and to say, well, this may or may not add up.

So what did the report by the conviction of you say?

And the reports by the cru that came out almost three decades later, they raised serious questions about the trial summation before the jury, saying that they were saying things that were stretching the evidence. And so there is some acknowledgment in those reports that there was wrongdoing by the prosecutors.

The reports point out the bad conduct, but almost always failed to use the names of the prosecutors. When you say that prosecutors went beyond the evidence in their summations, are we basically saying that they lied to the jury.

They were distorting the abne right, So I mean, whether you want to call that lies or not.

And what happened to those three eighty as one judge another moved to a white shoe law firm in Manhattan, and then the third, who presided over at least one other wrongful conviction. One other that we could.

Find is a current member of the Brooklyn District Attorney's executive team. I wanted to get to two of the cases that we focused on in the series. I know you've done some research on Anne Gutman. Anne Gutman was the prosecutor in the Derek Hamilton case that was eventually overturned.

We dig into this case in episode nine of The Burden. Remember that's where we took the trip to the North Carolina Woods, chatted with the witness who had first told us she was someone else before revealing herself to us.

This case against Derek, whatever you believe about his innocence or guilt, the evidence was not there to convict. And we really show that the ballistics evidence and the forensic evidence contradicts the report of the main witness. What does Anne Gutman do to overcome that small problem. She essentially lies to the jury. She says, it's not black, it's white. The forensics supports, the ballistics supports our version of the story, when in fact it just the opposite. So what happens

We got someone to review the report for us. It says she quote fell far short of the prosecutor's obligation to do justice in quote and that she quote significificantly misled the jury end quote.

Just like in the Token Booth case. Right, So, just to keep a tally, so far, we have two different cases in which prosecutors misled the jury. By the way, in the report available to the public, the criticism of Anne Gutman was left out. Apparently the district attorney didn't want to throw one of their own under the bus. But we know that the full report takes her to task, not scarsell It. It takes the assistant district attorney to task for not only mishandling the case, but really for,

Correct. So, Anne Gutman in nineteen ninety two ninety three handled the case of Everton Wagstaff and Reginald Connor, who were accused of a kidnapping and murder of a sixteen year old girl, but the judge tossed the murder charge because there was a lack of evidence, but they went forward with the kidnapping charge. Gutman's case, she was basing it on the word of a heroin addicted sex worker named Runilda Capella.

Remember that Teresa Gomez was Scarcella's go to witness. She was addicted to Kracken, a sometimes sex worker who helped the DA in six Scarcela cases where she claimed to be an eyewitness to a murder.

That seemed like a preposterous number, right, Runilda Capella was said to have witnessed many more crimes than that.

Basically, what happened, at least during the trial was that Capella was kept in a lock hospital ward for heroin withdrawal.

It was later reported that she'd gotten cold feet about testifying, so the DA arrested her and held her.

For three days prior to the trial to make sure she'd be there to testify in court. As they get to twelve to twenty three years, but then there's a hearing in twenty ten I think it was, in which it's revealed that cops had used Capella as a witness fifteen to twenty times. But Gutman did not disclose that right, So Gutman did not tell the defense for those two defendants that this person has this track record.

And under the rules, a prosecutor cannot hide evidence that favors the defendant that's considered rigging the game.

Totally preposterous case against these two guys based on this really faulty witness. But then it went to the Appellate Division, and the Appellate Division dismiss the indictment. They just said, this case is a bad case from the jump, and we're tossing the conviction and also tossing the indictment. So it was a forceful statement by the Appellate Division about Gutman's case. Right that happens in twenty fifteen, the same year that Derek Hamilton's case is reversed by the CIREU.

Right, the Appellate Court specifically challenged the credibility of Capella, the key I witness.

So Gutman's handiwork is exposed in two different cases involving three different convictions in twenty fifteen, and what happens. Gutman remains the head of the DA's Early Case Assessment BURO through twenty nineteen or so.

This Brunehilda saturname Brunilda Brunilda. So you're saying she's used.

A dozen times, fifteen to twenty times.

And the DA obviously knew that she was a repeat witness and a terrible drug addict.

Correct. It makes you wonder if there were others out there who could put them to shame.

So would you say pattern in practice of using known unreliable witnesses to convict people.

It certainly looks like one, a pattern for sure.

And has anybody ever picked out that pattern and said, we need to look at all fifteen or twenty of Brunilda cases.

Not that I know them.

Remember that the district attorneys CRU looked at all of Teresa Gomez's cases and moved to overturn four of the six of them based on Gomez's lack of credibility. So they looked at Scarcella's witness, but as far as we know, they did not look at the much more prolific witness, Brunilda, the one favored by the Adas. And I want to tell you about one more example of using an unreliable witness,

I love this one. How brought into the case of snitch, A professional snitch who was so used to helping the DA that he kept Jobb's phone number in a bible he carried with him. A guy who seemed to overhear a lot of incriminating conversations that proved really useful to the DA and, as one might imagine, to him as well in exchange for testifying he was seeking help with

Can it really be a coincidence that, even just anecdotally, almost by chance, we've come across three witnesses who were used by the DA over and over and over again. Three witnesses who were found to be unreliable and who claimed to have knowledge of something like forty felonies.

One would ask, what the hell was going on.

Any chance we're noting a pattern here one witness cases using an extremely unreliable witness.

I found out from someone who worked in the cru investigator actually involved in some of these early cases that got overturned, and she said they never looked at it in that light, right, even though she had some she had saw some of the prosecutors with multiple reversals, She said, they never saw a pattern. So you know, if they were looking for a pattern, they might have found they may have found it. If they're not looking for a pattern, you can say there is no pattern.

I can tell you what the pattern is, using the unreliable witnesses again and again and again. My question to you is why the hell is the DA not done it? Why do that in Scarcella cases but not where essentially the power exists.

Because that shows their culpability the das.

So you're saying the DA's and protecting its own.

They were say, are we really going to initiate the process ourselves? Are we going to acknowledge that we've done X number of wrongful convictions. But I don't think they're going to pursue that right. I mean they should, they could, and they should, but I don't think they will.

Interesting, I think you brought a couple other examples.

In twenty seventeen, there were a couple of different exoneration cases, and one of those involved the case of Jabbar Washington.

This was a Scarcella case.

The prosecutor in that case was Kyle Reeves. In twenty twenty one, a Brooklyn judge reversed a Brooklyn case that Reeves had handled, and that in doing so, God criticized Reeves for his quote blatantly intentional misstatements to the jury. So clearly stated that Reeves is distorting the evidence, which he apparently had we had done back in the Jabbar Washington case.

So we've now heard three cases of ada's lying or at best exaggerating the facts to the jury. And remember this is without any comprehensive database.

It's misleading the jury. Another pattern worth investigating.

Let's read the statement from the current DA's communications person. This is something he gave to Ted. Quote. Public shaming and blaming individuals as opposed to systemic issues are not part of the objective when the office reviews past cases.

I find it interesting that they decide to characterize it as shaming and blaming rather than what it otherwise could be considered, is accountability ted.

So you've looked at the Brooklyn DA very closely, what's your judgment about their approach to doing justice? The word corrupt gets thrown around by any means it's necessary. But are they good guys? I want you to be the hammer?

Okay, all right, So if you're a liberal, typically you would see good people in bad situations trying to do their best. But I don't view it from that lens. I'm more of a leftist, and so I see a bad system that produces bad actions. I don't judge them necessarily as bad people, but they did bad things. I would like to think that I uncovered some uncomfortable truths about what these prosecutors have done. Certainly the name should

Fair to say that your investigation has shown that there is no accountability.

Yeah, I don't think there's We you can't point to anything that any consequence that any prosecutor has experienced that amounts to accountability.

Right, So, no matter how many wrongful convictions you can show that somebody is that a prosecutor is responsible for, there's been no consequence to their career in any way.

Not do we know of publicly those kinds of things could have happened, and they just don't want to call attention to it. So we don't know if they move people around or move them, move them out of the office, and and so on, you know, So we do. The personnel matters are in turn all things generally, and so we don't We don't always.

Know, Okay, but in the Scarcella cases that we've been able to that you've been able to look at, no consequences to any assistant district attorney.

Not that I can trace.

And some have gone on to what kind of offices.

Well, we have at least a few judges in uh, Nassau County in Manhattan Criminal Court and NASA DA Kathleen Rice went onto the House of Representatives for four terms from a long island and many have gone on to successful lucrative careers in private practice, uh and on down the line.

So not to say that crime pays, but it would seem that cutting corners in prosecution.

Pays in terms of the gaining the convictions. Yes, you know that's what there, That's what their assignment was, and they got the convictions.

And propelling their own careers. Correct.

Don't you think it's time to look inside investigate patterns of relying on bad when it is lying to jurys. Isn't it time to investigate what that meant to people's lives?

We asked the Brooklyn District Attorney for a comment, and they gave us a statement. They said that the standard for re examining a law enforcement agent's past cases is a quote credible indication of intentional misconduct. The statement continues expanding this rational standard to every instance where a judge or cru finds faults in a prosecutor's work is absurd. So,

If anyone has a thought on this, leave a message for us at one eight three three eight Burden.

One note reached out to all the prosecutors named in this episode. None took us up on our invitation to comment. For more on Ted's findings, read his excellent article which came out of this research. It's called the Scarcellophiles. When unethical prosecutors get off Scott Free. It's in the Independent.

This episode was produced by Drew Nellis. Our associate producer and production coordinator is Austin Smith. Sound design was provided by Bianca Salitis.

Fact checking by Ryan Alderman, Dax Devlin Ross and me Steve Fishman. We are your hosts. The Burden is a production of Orbit Media. Thanks for listening, and now that you've made it through the credits, don't forget to sign up. To be a subscriber is easy. Go to the show page on Apple Podcasts, pay your two ninety nine per month and you're there. Thank you very much. Season two of The Burden Empire on Blood will be available everywhere