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More from The Marshall Project

Vance the philanthropist, Vance and the game of hide-the-evidence, Vance and the rise of the reform DA.

Vance the Philanthropist

Cy Vance is not only New York’s top prosecutor; he’s also quietly become the city’s biggest philanthropist. That’s thanks to the massive $800 million in forfeiture funds that his office has collected from corporate wrongdoers, mostly banks found to have violated U.S. sanctions. The forfeiture deals are controversial: corporate investigation targets are allowed to avoid prosecution by paying hefty fines, a deal out of reach for lesser defendants. Vance critic James Yates, a former state supreme court judge and legislative counsel, calls the deals “little more than outright bribery.” They’re controversial as well since the D.A. gets to decide how the funds are spent with little public scrutiny. “Given that these are essentially public dollars, more transparency and accountability is warranted,” the city’s Independent Budget Office said in a February report on the funds.

Few question that Vance’s spending has gone for the public good: He’s allocated some $316 million for efforts that include providing cops with tablet computers, cameras for public housing and funding a task force on crime and mental health. And in a gesture that belies criticism that he has been tone-deaf to sex crimes, he has provided millions to tackle the vast backlog of rape-kits sitting untested around the country. Vance pays for so-called “diversion” programs across the city that shift those charged with nonviolent misdemeanors into counseling instead of jail.

Another $164 million has gone to provide services for youth, families, college education for state inmates and weekend evening sports programs aimed at keeping kids off the streets. Recipients range from nonprofit groups like Joe Torre’s Safe at Home program for domestic violence victims, to the Osborne Association, the venerable prison reentry group. Overseeing that effort is former city correction commissioner Michael Jacobson whose Institute for State and Local Governance at the City University of New York coordinates and evaluates the programs.

But Vance signs off on each award. Asked if it isn’t strange to have the county’s top law enforcement officer distributing such immense sums, he offered a patrician-sounding sense of duty: “It is a responsibility and a privilege to steward that money,” he said.

The reform prosecutors

Amid protests over mass incarceration and police abuses, progressive district attorneys have been voted into office in cities around the country in recent years. “We are in an incredible moment right now,” says Miriam Krinsky, a former career prosecutor from California who heads a group called Fair and Just Prosecution that provides assistance to newly elected DA’s. “We have seen individuals elected coast to coast -- Houston, Philadelphia, Brooklyn, Denver, and everywhere in between. They start with recognition that the criminal justice system has gotten too large, and too often we criminalize things that are better attended to in other ways.”

Those new officials include Kim Foxx, who took office last year in Chicago on a platform of prosecuting corrupt cops and righting wrongful convictions. In March, in a rare and massive move of prosecutorial transparency, Foxx released six years’ worth of felony complaint data covering tens of thousands of arrests. “I think she recognizes that the news isn’t all going to be good news,” said Krinsky. “But the community has a right to know it, and she’s encouraging her community to dig deep into those numbers and help her in understanding what the lessons learned are.”

Then there’s Larry Krasner, Philadelphia’s newly elected DA. In March, Krasner issued a memo that turned traditional prosecution strategy on its head, ordering his attorneys to begin their plea offers at the low end of sentencing guidelines, instead of the other way around. He has also insisted that prosecutors cite the costs of any sentence they seek, in dollars and cents to government, as well the collateral consequences to the defendant and his family.

That progressive club is one in which Vance would like to claim membership, although, aside from his recent decision not to prosecute most fare beat cases, he’s been a cautious reformer. His order to end bail on misdemeanors came nine months after Brooklyn’s newly elected DA, Eric Gonzalez, made the same move in his borough. Gonzalez’s predecessor, the late Ken Thompson, declared in July, 2014, soon after his own election, that his office would no longer prosecute simple marijuana possession cases – another broken-windows catch-all that has pulled thousands of young, mainly black and Hispanic men into the criminal justice system. Vance meanwhile held back as he negotiated with police brass. “We were very much part of the process,” he said.

Earlier this year, a group of activists held a small rally outside of Manhattan’s criminal courts on Centre Street to announce a new initiative they called “Court Watch.” The group said it would use volunteers to observe criminal arraignments to monitor the kind of justice practiced by Cy Vance’s prosecutors. Asked about the effort, Vance said he welcomed it. “You know, keep us on our toes,” he said. “If you think there is some case where a mistake has been made, we should be alerted to it.” The D.A. acknowledged that he’s had a sharp learning curve since taking office in 2010. “This whole idea of right-sizing the justice system -- I wasn’t there when I started this job,” he said.

Vance and the game of hide-the-evidence

Even North Carolina and Texas have more liberal laws than New York when it comes to letting defendants know what kind of evidence will be used against them at trial. In the Empire State, all prosecutors need do to comply with the law is to provide witness statements, police reports and grand jury minutes when the case goes to trial. State bar associations call it the “blindfold law” since it leaves defendants in the dark.

At a City Council hearing on criminal discovery practices in February chaired by Queens councilman Rory Lancman, Sergio de la Pava, a supervising attorney for New York County Defender Services who has been representing indigent defendants in Manhattan for over 20 years, described a typical experience in the borough’s courtrooms: After waiting six months or a year for trial, he said, “The DA comes in with a cart and drops about six inches of material on your desk. If you say to the judge, ‘Look what I’ve just been given, I need an adjournment,’ the judge will say to you the truth, which is that they are complying with the statute.”

That’s markedly different from what happens in Brooklyn, where for decades the D.A. has provided that kind of crucial evidence shortly after arraignment. At the council hearing, representatives of both the Staten Island and Bronx district attorneys announced that they are both moving toward adopting aspects of Brooklyn’s more open discovery policy. As Lancman pointed out, that was the breaking news of the day. The Manhattan and Queens reps, however, dug in largely for the status quo. Speaking for Vance, top assistant Karen Friedman Agnifilo cited a 2008 case in which a gang member accused of murdering a 13-year-old boy in a shooting outside a Harlem housing project had issued instructions from a Rikers Island phone to have potential witnesses confronted. “Witness intimidation is real,” she said. “It can result in harassment, intimidation and violence and prevent people from coming forward.”

Defense attorneys acknowledge that some evidence may be too sensitive for an early release, but argue that protective orders can readily be obtained from the judge.

Vance said he is working toward expanding his office’s discovery practices in coming months. But he said he is most comfortable when evidence is exchanged between those he called “experienced” lawyers. “Informal discovery practices,” he said, “really are best when they are done between lawyers who know each other.” As an example, he offered the Etan Patz case, which resulted in a long-sought conviction in one of Manhattan’s oldest and most harrowing cases. “We turned the whole file over,” he said.