The primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done. —Canon of Professional Ethics, Canon 5
I may have been partly responsible for Robert Morgenthau’s initial decision to run for district attorney of Manhattan County, an office he has long occupied with integrity.
When the legendary, if overly venerated, Frank Hogan died in 1974, the morning line had it that Assistant District Attorney Richard Kuh would be his successor. It was Kuh who had relentlessly and successfully prosecuted Lenny Bruce for obscenity. The conviction destroyed Lenny’s career and ultimately greatly contributed to his despair and death.
Lenny’s ardent faith in the First Amendment was eventually redeemed when his conviction was overturned by an appellate court, but Lenny was in his grave by then.
Having attended—and been a witness at—Lenny’s trial, I could testify to Kuh’s Torquemada style of prosecution. At one point in court he had asked me, in a roar, if it was not true that I, a defense witness, had written a book praising a convicted felon. I had indeed, I said—referring to my admiring biography of pacifist A.J. Muste, a key strategist in the anti-Vietnam War movement, who had been imprisoned for acts of nonviolent civil disobedience in protest against the war.
The unavoidable question for Robert Morgenthau is how he can continue in fairness to prosecute Oliver Jovanovic after his office has offered to drop the case in return for time served and some admission of guilt.
As someone with a more than nodding acquaintance with the Bill of Rights, I was uneasy at the prospect of Kuh—who was Hogan’s choice for successor—becoming Manhattan’s district attorney, and wrote a three-part series in the Voice on his lack of commitment to the First Amendment, among other parts of the Bill of Rights. The series was based on interviews—not for attribution—with a number of his colleagues in the district attorney’s office and other members of the criminal justice system.
After the series ran, I got a call from Robert Morgenthau, whom I had never before met or spoken to. I knew that he had been United States attorney for the Southern District from 1961 to 1970. He wanted to discuss my critical views of Kuh, and I told him I’d answer any of his questions.
Morgenthau told me he hadn’t thought of running for district attorney of Manhattan County, but might consider the possibility now that he’d read the series. The result of his deliberations is that Richard Kuh is in private practice, and Morgenthau has been the D.A. for 26 years.
Now, Morgenthau—after a long career as a district attorney known for hands-on attention to cases, particularly difficult ones—is faced with a defining moment in his career. Will he, in a highly publicized case—which received national, and often lurid, coverage the first time around—accept his obligation to secure justice rather than add to his list of convictions?
On May 29, 1998, a jury convicted Oliver Jovanovic of kidnapping in the first degree, sexual abuse in the first degree (three counts), assault in the second degree, and assault in the third degree. He was sentenced to a minimum of 15 years in prison. The Internet played an intimate role in the evolution of the case, and the key charge, which received sensational coverage in the press, was sexual torture.
On December 21, 1999, the First Department, Supreme Court, Appellate Division, reversed the conviction and remanded the case for a new trial. The four-judge panel sharply criticized the original trial judge—Justice William A. Wetzel of state supreme court—for a series of erroneous rulings against the defense, particularly his misinterpretations of what is admissible, and not admissible, under the Rape Shield Law.
The appellate court’s analysis of that law, which offers reputational protections to women charging rape—but within constitutional limits—is now the leading Rape Shield Law decision in this state. In a future column, I’ll detail how Judge Wetzel fumblingly misunderstood that law and how he thereby crippled the defense.
This same Judge William Wetzel had initially been assigned the retrial. His way of manifesting judicial temperament during the first trial brought to mind the choleric 19th-century justice of the peace Roy Bean, “the law west of the Pecos.”
When the key evidence for the defense that was denied by Judge Wetzel—and that has now been allowed by the appellate division—is considered, the prosecution’s case against Jovanovic is weak, so weak that the defendant was reportedly offered a deal by the prosecution. This was referred to in the May 11 New York Times.
The deal was time served (he has already served close to two years in prison) and no further prison term if he’d plead guilty to a misdemeanor. No further negotiations were entered into because Jovanovic refused to plead guilty to anything.
The prosecution denies the plea was offered, but that’s a spin. The deal was phrased: “If the defendant will . . . ” (Emphasis added.) When Jovanovic turned it down, the prosecution said this was only a speculative offer. I have confirmed it was actually made.
And as the headline in a May 18 New York Times overview of the case put it: “Questions Hover in Internet Sex Abuse Case.” In the story, Laura Mansnerus and Katherine Finkelstein reported: “Legal experts and even some prosecutors in the Manhattan district attorney’s office privately say the case against him has turned into a loser. . . . After the sentencing . . . some of [the accuser’s] relatives joined the [Jovanovic family] at a news conference, declaring that she had a history of lying and stealing and had wrongfully accused Mr. Jovanovic.”
The unavoidable question for Robert Morgenthau—especially in view of his long-term stature among the nation’s district attorneys—is how he can continue in fairness to prosecute Oliver Jovanovic after his office has offered to drop the case in return for time served and some admission of guilt.
When Jovanovic—insisting on his innocence—exercises his right to yet another jury trial, he will risk a sentence of 15 years to life because the district attorney of Manhattan would rather go for conviction in a discredited case rather than do justice.
Morgenthau is running for another four-year term. He is unopposed. At 82, this will be his eighth victory. Why sully it?