At first read, the recent prosecutor accountability headlines announcing the two-year-law suspension of former Assistant District Attorney Glenn Kurtzrock for withholding key exculpatory evidence during a murder trial sound like good news. After years of waiting and even a lawsuit filed by the Innocence Project, the New York Supreme Court Appellate Division’s Second Judicial District finally affirmed the Grievance Committee for the Tenth Judicial District’s findings of misconduct and suspended Kurtzrock. As readers of the Open File know, it’s rare for prosecutors to lose their jobs, and being suspended from practicing law – even temporarily – for illegal and unethical behavior is virtually unheard of. While we commend disciplinary action taken against Kurtzrock, it’s worth exploring how it took so long to occur and why the two-year-suspension meted out by a New York State Appellate Division panel of judges isn’t sufficient.
The too-rare punishment for a Brady violation stemmed from findings by the Grievance Committee for the Tenth Judicial District that Kurtzrock illegally withheld key exculpatory evidence in the trial of Messiah Booker, a Black man charged with second-degree murder and first-degree burglary, who has always maintained his innocence. As Booker sat in jail for 18 months awaiting trial, his attorney repeatedly tried to get discovery materials from Kurtzrock, who claimed there was nothing more to share. However, Booker’s 2017 trial imploded when his attorney discovered that Kurtzrock had altered hundreds of pages of police records to remove extensive exculpatory information, among other issues. Kurtzrock was suddenly forced to resign mid-trial trial by the-then-Suffolk County DA Thomas Spota, who has since faced his own legal problems for misconduct. Murder charges against Booker were subsequently dropped, as were second-degree murder charges against his three co-defendants, and Booker accepted a plea deal to serve five years for the burglary charge. We wrote about Kurtzrock’s forced resignation previously here, also commending the DA’s office’s actions for firing another ADA, Andrew Weiss, who served, ironically, the chief of the DA’s Public Integrity Bureau, but illegally withheld evidence in another trial.
The judicial action on the Grievance Committee’s findings in the Booker case is commendable, but many aspects of the state’s handling of Kurtzrock remain deeply troubling. Following the Booker trial debacle, which was called a “travesty” by the judge who dismissed it, the DA’s office, under new leadership of District Attorney Timothy Sini, undertook an internal investigation of Kurtzrock’s other cases. Four other murder cases were thrown out as a result. Under these extraordinary circumstances, why did the courts fail to act on Kurtzrock’s misconduct for so long and when they did act, why did they put blinders on about the obvious pattern of misconduct and need for a comprehensive plan of investigation and correction in all cases that could have been affected by his actions?
Now, nearly four years since ADA Kurtzrock was caught withholding and altering exculpatory evidence, the court has finally taken action. Worth noting is that, while Kurtzrock was forced to resign from his job representing the state due to his illegal actions, the state allowed him to continue to represent clients in private practice. The court’s attention may have only been spurred by a 2019 lawsuit from the Innocence Project, which petitioned the court in an effort to unseal the records of Kurtzrock’s disciplinary proceedings and any future proceedings, joined by an amicus brief filed by six media companies, including the New York Times. The lawsuit was ultimately unsuccessful, but without it, who knows whether the courts would have disciplined Kurtzrock at all.
Pointing to some of the more egregious aspects of the misconduct in Booker’s case the court writes:
The respondent has admitted to violating his prosecutorial obligations under Brady and Rosario…the respondent failed to disclose 48 items that should have been disclosed under Brady—including materials implicating an alternative suspect, John Doe No. 1, as the shooter and murderer of the victim, as well as information that undermined the credibility of the People’s main trial witnesses—from Booker’s former girlfriend and Jane Doe No. 1.
In explaining the decision to temporarily suspend Kurtzrock’s law license, the court continues:
The respondent was a seasoned prosecutor with extensive experience. His conduct in relation to the Booker case merits the strongest possible condemnation because his actions deprived the defendant of a fair trial and also deprived the victim’s family of a determination as to whether the defendant was responsible for the homicide and, if so, the imposition of a just sentence.
However, the Court’s decision that the appropriate response to Kurtzrock’s misconduct is the suspension of his law license for a meager two years is a far cry from “the strongest possible condemnation” the court could have imposed, given the flagrant misconduct Kurtzrock committed in Booker’s and other instances. For example, the widely-reported case of Shawn Lawrence, who was wrongly convicted and sentenced to 75 years to life. Only after six years in prison – when the Kurtzrock’s illegal actions came to light – was he eventually freed and exonerated. The judge who released Lawrence from prison is quoted in a civil suit filed by Lawrence against the Suffolk County’s District Attorney’s Office , calling out the “stunning” amount of Brady evidence that “tended to exculpate Mr. Lawrence” and which had been illegally “withheld by the prosecution.”
Inexplicably, it appears the court believes Kurtzrock’s misconduct in Booker’s case was a singular bad act, an anomaly rather than a pattern. As the judges’ opinion states:
Against the grave violations of professional standards committed by the respondent, we give weight to the extensive evidence in mitigation, credited by the Special Referee. There was no showing of intentionally malicious or venal conduct. While the respondent committed extensive misconduct in one case, there was no showing that he engaged in any similar conduct in any other cases notwithstanding the respondent’s assertion to the effect that he customarily delegated responsibility for compliance with Brady to the police.
If so, why were murder charges in four cases thrown out after a review by the DA’s office that had prosecuted them? How can Kurtzrock’s illegal actions in Booker’s trial have been his only misconduct when an innocent man was sentenced to life then exonerated and released based upon judicial findings that Kurtzrock illegally concealed evidence in the case? A recent New York Law article reported lawyers Paul Shectman and Nina Morrison, who is Senior Litigation Counsel with the Innocence Project, have written a letter to the New York Appellate Division asking that disciplinary proceeding be re-opened, and a more severe sanction imposed. Shectman and Morrison’s letter points to another disciplinary case where a lawyer who misappropriated a client’s funds of less than $10,000 was disbarred, and suggests Brady violations should be taken just as seriously. Disbarment may not even be enough, as this New York Times Op-Ed from Morrison asks: Why has Kurtzrock not been charged with a single crime? Kurtzrock’s illegal actions stole six years from Lawrence and 18 months from Booker and those are just the Brady violations we know about. It’s possible his actions could have tragically stripped away even more decades upon decades of life – from people whose cases may never even get another look if the courts refuse to see the pattern of Kurtzrock’s behavior.
It’s also not merely an issue of accountability in these instances of known gross misconduct, but also transparency – the Grievance Committee’s closed proceedings and sealed documents make it impossible to know exactly what was alleged, investigated, and determined during that disciplinary proceeding, even though that Committee’s work is the official, professional mechanism for holding prosecutors accountable. The Suffolk County DA’s Office’s voluntary internal investigation of Kurtzrock’s cases has the appearance of robustness, having resulted in five reversals, but that was an ad hoc, unofficial channel for accountability that the public can’t rely on over time to address all prosecutorial misconduct in the jurisdiction – which is what the Committee is supposed to do. How can the public trust the process when the end result was a judicial order that simultaneously handed down a sanction to Kurtzrock but also grossly minimized and ignored apparent facts of other misconduct in other cases? One thing we know is that when there are Brady violations found, there are usually many more Brady violations from the same prosecutor (and usually office) that we don’t know about.
The District Attorney of Suffolk County did the right thing ridding Kurtzrock from the office when the misconduct came to light and conducting an internal investigation of all his cases, both actions which are sadly all too uncommon in these instances and should no doubt be commended. Ultimately, the issue is not whether two years without practicing law is a fair punishment, or whether a harsher punishment for Kurtzrock would be more appropriate. Justice requires, first and foremost, that when prosecutors break the law in their role as state actors, that reparations be made to the defendants who were impacted or may have been impacted. Kurtzrock’s LinkedIn profile notes he was ADA in Suffolk County from October 2004 until May 2017. How many of his cases from those 12-and-a-half years are tainted by misconduct? What other injustices need to be addressed and corrected in his wake? The way the system has handled Kurtzrock’s case, we may never know who all those people are, and they are no closer to getting justice now than they were before Kurtzrock lost his job.
It’s clear that prosecutorial accountability can only be achieved if the system is changed – like by establishing an independent commission for disciplinary issues, which is currently in the works in New York state. Although the New York legislature voted to establish such a commission, it has been bogged down by legal challenges from prosecutors ever since Cuomo signed it into law. We will continue to follow its progress. What we do know is that the Grievance Committee operated in secrecy, and the court that acted on its findings seems to have disregarded established facts related to additional misconduct in other cases – all of which makes it all the more apparent that we need a transparent, timely and independent process to ensure prosecutors act only in the interests of justice for all.
