August 28, 2014

Sedita Sets Agenda as New Leader of DA Association


Sedita Sets Agenda as New Leader of DA Association

John Caher, New York Law Journal
August 28, 2014

Frank Sedita III became a prosecutor because he wanted to "wear the white hat," and these days he's riding at the helm of the District Attorneys Association of the State of New York, preaching a message that DAs have just as much of an obligation to exonerate the innocent as they do to convict the guilty.

"Prosecutors are not blood-thirsty adversaries," said Sedita, the 53-year-old Erie County district attorney who took over in July as president of the statewide association of prosecutors. "We are a unique creature of the criminal justice system. Unlike other lawyers who have to zealously represent their client, we take a separate oath to do justice. Our client is not an individual, it is the noblest instincts of a civilized society. That means we owe a duty not only to the victim, but to the accused and the integrity of the system."

For Sedita, that doesn't only mean absolving people who were wrongly convicted but, just as important, intervening before there is a wrongful conviction. The Buffalo prosecutor said his office cleared more than 200 people in the past five years, nearly all of them pre-indictment.

That story, he said, is one the public doesn't know, but one he intends to tell as leader of the association.

"If you look at the news coverage, prosecutors are constantly portrayed as these people who intentionally withhold Brady material, who don't care about people's rights, who flippantly prosecute people when there's no evidence, and so on," Sedita said. "That is not how it works in my county. We are not a rubber stamp for the complainant. We are not a rubber stamp for the police, although I respect the police a great deal. We are independent in our review of the evidence."

Sedita admitted he is a neophyte at public relations, and joked that he has a "face made for radio," but he plans to bring his point to editorial boards and anyone else who will listen. "The first goal is to change the public tone and public narrative to more truthfully reflect what prosecutors do," he said.

A second goal is to derail legislation the prosecutors view as dangerous to the public safety and promote new laws they say will advance that mission.

On the former, Sedita and the organization are dead-set against a bill that would establish a prosecutorial misconduct commission to rein in rogue district attorneys.

Sedita calls it the "Moreland Commission Retribution Act," suggesting the Legislature decided to go after prosecutors when the anti-corruption panel, to which he and several other district attorneys were appointed by Gov. Andrew Cuomo, went after lawmakers. The defunct commission, and whether the governor or his staff interfered with its work, is under investigation by Southern District U.S. Attorney Preet Bharara. Sedita has declined to comment on the investigation.

The prosecutorial misconduct bill died in committee but could re-emerge next session. Sedita is intent on preventing that from happening.

"It is completely unnecessary because there is already a grievance committee structure in place," he said. "One of the problems with this bill is it singles out prosecutors and creates a system where there will be a chilling effect on prosecutors bringing controversial cases."

Sedita also opposes legislative proposals that would require prosecutors to divulge more discovery information, including details about witnesses, at the beginning stages of a criminal prosecution.

"If we provide early discovery, people will be shot, people will have their houses burned down, people will be beaten, and some people will die," Sedita said. "In the longer term, it is going to undermine the integrity of the criminal justice system because nobody is going to want to cooperate."

Bruce Barket, a partner at Barket, Marion, Epstein & Kearon in Garden City and member of the board of the New York State Association of Criminal Defense Lawyers, said that while he appreciates Sedita's sentiment and willingness to work with his courtroom adversaries, discovery reform is just as much a no-compromise issue for his group as it is for the district attorneys.

"Discovery reform is front and center, and we have to address the fact that our current discovery statute is left over from 50 years ago," he said. "It is one of the most antiquated and outdated discovery statutes in the country. States as 'progressive' as Florida have depositions before trial and open discovery."

Barket used an example to illustrate what he said is the absurdity of New York's discovery rules.

"If there is a vehicular manslaughter and somebody dies, and I represent the person accused of manslaughter, I don't get to see a police report, a witness statement, grand jury testimony or anything until after a jury is selected," Barket said. "If I represent him in a civil action, I get to take depositions and I get every witness statement before trial. How is it possibly just if I represent a person facing 25 years in prison and I get no discovery?"

'An Easy Legislative Fix'

On the proactive side, Sedita and the association are stumping for a measure sponsored by a Buffalo area assemblyman, Robin Schimminger, D-Kenmore, that would redefine the term "mentally disabled" as it pertains to crime victims, particularly the elderly.

Now, prosecuting property crimes in which the victim is mentally disabled or suffers from dementia can be challenging because the Penal Law requires proof that the defendant took the owner's property without consent. Schimminger's bill would revise the law to reflect the fact that, because of a mental impairment, some victims are incapable of informed consent.

"In contrast with most other states in this country … New York has not addressed the financial exploitation of impaired adults," Schimminger said in his justification for A8776, which is currently a one-house bill. "The sad fact is that older adults who suffer from age-related cognitive disorders may be unable to understand basic arithmetic, let alone their finances. They may not remember signing checks, wills or deeds, or giving permission or authority to transfer ownership of their bank accounts or real estate."

Sedita said the measure is an "easy legislative fix" that would eliminate a major roadblock to prosecuting those who exploit the elderly.

"As the baby boom generation grays, we are seeing a much larger percentage of our population becoming elderly," Sedita said. "People don't stick up liquor stores and banks anymore, unless they are idiots. Now people have their money stolen through a few key strokes."

Sedita said he would also like to see legislation to scrap New York's transactional immunity rule, which cloaks a grand jury witness with absolute protection from prosecution for anything they tell the panel, and replace it with the less encompassing use immunity standard used in federal courts and in most states.

"Why should New York have a unique rule that shields criminals from liability?" Sedita asked.

On the other hand, Sedita said prosecutors should be more receptive to reforms advocated by defense attorneys, with the exception of discovery.

For instance, with irrefutable evidence that many false convictions resulted from faulty eyewitness identifications and false confessions, Sedita favors reforms such as double-blind photo arrays where the presenter does not know the identity of the suspect and therefore cannot influence the witness, and videotaped interrogations so prosecutors and juries know exactly what led to a confession.

Sedita views both of those issues as matters where the district attorneys could "reach across the aisle" and come to terms with their counterparts in the defense community.

"There are things prosecutors and defense attorneys can agree on that do not compromise the integrity of the system," he said. "What I cannot agree on is legislation that would declare war on witnesses."

Sedita said it's all about accountability.

"When I first started, my assistants would tell me what they 'thought' about a case," he said. "I told them over and over and over, 'I don't care what you think about the case; I want to know what you can prove. And it's not proof unless it's admissible.'"

Sedita brings to his new position a family legacy of public service.

His grandfather, Frank Sedita, was a Buffalo City Court judge before serving three terms as mayor between the late 1950s and early 1970s. His father, Frank Sedita Jr., was a prominent local judge in several courts, including Supreme Court. And Frank III has been in public service since August 1988 when he joined the Erie County District Attorney's office.

Sedita had little early interest in following his forbearers' footsteps into the law; he wanted to be a history professor. But after college, his father persuaded him to go to law school with an offer he couldn't refuse—tuition money—and a promise that he would help fund a graduate education in history if his son decided not to pursue law after earning his JD.

"By the time I was 24 years old, the last thing I wanted to do after three years of law school was go into a three-year graduate program," Sedita said. "So it was kind of a sneaky way to get me to become a lawyer."

After graduating from the Buffalo law school, Sedita spent a year in private practice, mainly handling matrimonials, before becoming the only kind of lawyer he ever wanted to be—a prosecutor. Once he walked into the door of the Erie County District Attorney's office, he never walked out.

Sedita worked his way through the office, serving at different times in the justice courts bureau, the grand jury bureau, the felony bureau, the homicide bureau and the special investigations bureau. He was eventually promoted to chief of the homicide bureau, and elected district attorney in 2008.

"I wanted to wear the white hat," he said. "I wanted to use my skills and talents to represent victims of crimes."

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