What Happens When Prosecutors Break the Law?

A major scandal unfolding on Long Island over the last 13 months shows how the justice system all too often falls silent when the culprit is a prosecutor, and the victim is an ordinary citizen accused of a crime.

In May 2017, Glenn Kurtzrock, a homicide prosecutor in Suffolk County, N.Y., was caught red-handed concealing dozens of pages of material from Messiah Booker, a young man charged with first-degree murder who maintained he was innocent.

Mr. Booker was arrested and spent more than 18 months in jail awaiting trial before his defense lawyer discovered that Mr. Kurtzrock had altered hundreds of pages of police records to remove a wealth of exculpatory information. That included evidence pointing to another suspect he knew Mr. Booker’s lawyer had been investigating. The prosecutor had also removed the covers of two police notebooks to make it look like his altered versions of the documents were the originals.

After the defense attorney discovered the misconduct and alerted the court, the district attorney promptly fired Mr. Kurtzrock and dismissed the murder charge against Mr. Booker in mid-trial. (Mr. Booker then pleaded guilty to attempted robbery, a reduced charge, which ensured he would be released from prison before his son finishes elementary school.) As he dismissed the case, the judge called it a “travesty.”

It was clear that Mr. Kurtzrock had violated the 1963 the Supreme Court ruling in Brady v. Maryland which held prosecutors must turn over any exculpatory evidence to defendants.

Yet there was more.

Over the last year, as the district attorney’s office reviewed all of Mr. Kurtzrock’s case files, prosecutors informed the court that four more murder cases had been tainted by Mr. Kurtzrock’s illegal suppression of evidence. The murder charges in all four cases have now been thrown out.

Most recently, in February, a man named Shawn Lawrence was exonerated of murder and freed from a sentence of 75 years to life after the district attorney’s office discovered that Mr. Kurtzrock had concealed 45 different items of exculpatory evidence at trial — with the presiding judge declaring that the prosecutor’s misconduct was “absolutely stunning.”

So what’s happened to Mr. Kurtzrock?

Nothing.

Thirteen months after his public firing, and the charges in five murder cases thrown out because of his illegal actions, Mr. Kurtzrock hasn’t been charged with a single crime. Not fraud, not tampering with government records, not contempt of court.

And he hasn’t even been suspended from practicing law, much less disbarred. He’s now working as a defense lawyer in private practice. That’s right: he’s making a living representing people accused of crimes, in the same courthouse from which he was (supposedly) banished a year ago. His law firm website even touts his experience as a “former homicide prosecutor.”

The law also makes it virtually impossible for Mr. Kurtzrock’s victims to sue him, with the Supreme Court having declared that individual prosecutors and their offices are “immune” from civil rights lawsuits in all but the rarest of cases.

Mr. Kurtzrock’s case may be the most recent example of the system’s egregious failure to hold a rogue prosecutor accountable, but it’s hardly anomalous.

The National Registry of Exonerations, based out of the University of California, Irvine, reports that “official misconduct” — by police, prosecutors or both — was a factor in roughly half of the nearly 2,200 exonerations across the country since 1989.

To date, only one prosecutor in the country (Ken Anderson, who withheld exculpatory evidence from my former Texas client Michael Morton) has ever been jailed for misconduct causing a wrongful conviction. And Mr. Anderson served just eight days in the county jail — starkly different from the 25 years that Mr. Morton languished in state prison.

That’s true even when prosecutorial misconduct taints thousands of cases.

Last June, a Massachusetts judge issued a blistering 127-page decision finding that two former assistant attorneys general had committed “egregious misconduct” and “fraud on the court” in failing to disclose evidence that a former state lab analyst was addicted to drugs while on the job for years. After five years of litigation, the state has agreed to throw out more than 8,000 drug convictions tainted by laboratory and prosecutorial misconduct.

The lab analyst served 13 months in prison for her crimes. But the former prosecutors? Neither have faced criminal charges, and both are still licensed attorneys. Indeed, even though my office filed formal complaints against them in July 2017 the Massachusetts Bar has yet to even hold a public hearing on their law licenses. And both have found other jobs as senior government lawyers, their salaries funded by taxpayers.

It doesn’t have to be this way. Rather than tolerate a bar “discipline” process that is marred by lengthy delays, operates in secrecy, and too often results in little to no consequences for even serious misconduct, legislators should create commissions to regulate prosecutors’ conduct and law licenses, with greater accountability and transparency.

Last week, the Republican-controlled New York State Senate passed a landmark bill, sponsored by Senator John DiFrancisco and Assemblyman Nick Perry, that would require these reforms. The Assembly takes up the bill on Monday; if approved, it will head to Gov. Andrew Cuomo’s desk. And if he signs it into law, New York will be the first state in the country to create such a commission.

If an elected district attorney is unwilling or unable to bring criminal charges against an assistant prosecutor who so flagrantly violates the law, the attorney general or governor should step in and appoint a special prosecutor.

Most prosecutors are hard-working public servants and committed to fair play. But those who break the law and face no consequence are a stain on their colleagues — and the legal profession.