Yes, they can: Prosecutors doing justice in New York

—Daniel S. Medwed

Last week, the New York Times published an article about an extraordinary criminal case. Five people were convicted of state crimes related to the 1995 killing of a livery cab driver named Baithe Diop in the Bronx. Sadly, the murder itself was not unusual; New York City suffered a plague of similar crimes in the 1990s. What was unusual is how prosecutors responded to a recent letter from one of the defendants, Eric Glisson, in which he proclaimed his innocence and insisted that several members of a Bronx narcotics gang had committed the crime.

Instead of ignoring this cry for help or giving it a cursory review, the office directed the letter to John O’Malley, a federal investigator who had previously worked as a homicide detective in the Bronx. O’Malley recalled that, in 2003, he interviewed two gang members who confessed to a murder that bore a strong factual resemblance to the Diop killing. Along with veteran prosecutor Margaret Garnett, O’Malley began to reinvestigate the case and unearthed powerful new evidence pointing not only to Glisson’s innocence, but also to that of the other four defendants. The U.S. Attorney’s Office forwarded its findings to the state entity that prosecuted the case, the Bronx County District Attorney’s Office, which has pledged to look carefully at the matter.

To be sure, coincidence played a role in these developments—particularly that O’Malley had actually interviewed the men who now appear to be the prime suspects in the case. And one cannot discount the fact that the U.S. Attorney’s Office took no part in the original prosecution and had nothing vested, psychologically or otherwise, in the original outcome. Indeed, it remains to be seen whether Bronx prosecutors will support the effort to overturn these convictions. Even if they eventually agree with their federal counterparts, it appears that five people may have spent upwards of fifteen years in prison for a brutal crime they did not commit. This suggests the possibility of major flaws in the initial investigation and prosecution of the case: flaws that should be studied and rectified to avoid comparable results in the future.

Nevertheless, this event is cause for hope. For more than 150 years, we have asked prosecutors to serve as “ministers of justice,” public servants who never lose a case—acquittal, conviction, or mistrial—as long as the result was fair. Far too often, prosecutors seem to care more about securing and preserving convictions than about justice. Not so here. Kudos to federal prosecutors in New York and John O’Malley for showing their commitment to the minister-of-justice ideal.

Daniel S. Medwed is Professor of Law at Northeastern University School of Law and author of Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent (New York University Press, 2012).

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