Is Subpoenaed ADA Blowing the Whistle Again?

Charles (Joe) Hynes

Charles (Joe) Hynes

Brooklyn DA Charles J Hynes should be very scared of the subpoena of 50-year-old ADA Barbara A. Burke in the wrongful conviction lawsuit of Jabbar Collins. She came to the job at the DA with a passion for the rights of the wrongfully convicted and she has blown the whistle before when she took on the Catholic Church.

In 2002, Barbara Burke* (using her married name, Barbara Samide) filed a theft complaint with the Queens district attorney against Reverend John Thompson, a priest in the Ozone Park St. Elizabeth parish of the school where she was principal. According to the New York Times, he “used money from the collection plate to pay for trips to the Blue Dolphin, a gay resort in Fort Lauderdale where clothing is optional.” He also used the money to pay for credit card bills, a luxury automobile lease, a vacation rental in Mexico, and other personal expenses. Eventually he pled guilty to stealing over $95,000.

ADA Barbara A. Burke (Samide)

ADA Barbara A. Burke (Samide)

Before she blew the whistle, she tried raising the issue within the church, moving up through the hierarchy to no avail. At some point, she filed a lawsuit alleging harassment and abuse. The diocese put her on unpaid leave. A year later she won a legal battle and forced the diocese to pay for the year she was out of work. Three years after she was first put on unpaid leave Newsday reported that Reverend Thompson, who got off without any time in jail, was still being lavishly funded by the diocese.

This time around she is in trouble with her bosses at the Brooklyn DA who summarily exiled her to their Siberia, the Early Case Assessment Bureau (ECAB). Before that she did appellate work at the office of DA. I am told she worked on the office’s response to the Jabbar Collins lawsuit which alleges policies and training which led to employee violations of defendant’s civil rights.

Such an assignment makes sense given her interests as a law student. At the Touro Law Center she worked with Martin A Schwartz, on some of the questions relevant to the Collins lawsuit. Schwartz went on to publish a “Municipal Liability and Liability of Supervisors: Litigation Significance of Recent Trends and Developments” together with other authors including Joel Rudin, the attorney for Jabbar Collins.

Mike "amnesia" Vecchione

Mike “amnesia” Vecchione

Once again she seems to have entered the heart of darkness. The Collins’ lawsuit focuses, among other things, on supervision and training by Michael Vecchione, the DA’s favorite and supposedly “very, very principled lawyer.” In fact, while Joe Hynes was defending him publicly during debates with Ken Thompson, his gatekeeper, Chief Assistant District Attorney Amy Feinstein, conceded remembering a raucous meeting that Vecchione completely denied remembering under oath even though he was the supervisor at that meeting. In effect, a case is building that Vecchione committed perjury under oath. Granted, it is hard to convict someone who commits perjury by claiming not to remember. On the other hand, in a jury trial of the Collins claims, it will be easy to convince a jury that Vecchione’s testimony is not credible.

Jabbar Collins (Andrew Burton-ProPublica.Org)

Jabbar Collins (Andrew Burton – ProPublica.Org)

I imagine ADA Burke was subpoenaed because of information she has about the office’s response to Jabbar Collins’ lawsuit. I am guessing she will be smart enough to hire her own lawyer for a deposition, rather than relying on representation by corporation counsel.

DA Hynes, and Michael Vecchione, and others in that office should be very scared of Barbara Burke (Samide). I put out the information about her blowing the whistle on the Catholic Church because I became convinced that the DA’s office was shortly going to try to smear her with their distorted version of that story. I felt it important to preempt them and share her version.

* How I confirmed the Link between the two names: At the time Barbara Burke blew the whistle on Father Thompson, she was working under her married name, Barbara Samide. She switched back to using her maiden name, Barbara A Burke, sometime between then and 2005, when she started in law school. In-between she also used the name Barbara Burke-Samide in an article she published with Karen Burke, an Associate Professor at St. John’s University (Jamaica, NY). The article, “Required changes in the classroom environment: It’s a matter of design,” is also listed in a page she posted along with her more recent legal products. The publication made sense for an educator who was pursuing a doctorate in instructional leadership. She switched careers and studied law at the Touro Law Center and graduated with a JD in 2010. Further confirmation was located in Jimmy Breslin’s The Church that Forgot Christ (2004) which devotes a chapter to Barbara Samide’s history with the RCC.

P.S. A REQUEST OF MY READERS. I imagine this story will be picked up by mainstream media. That is great because, above all, I went to get this story out to an audience much larger than I can ever hope to reach through my blog. Thus, I was also pleased when my July posting about Michael Vecchione waspicked up by the New York Post and aspects were confirmed by the DA in response to an inquiry by Michael Powell of the New York Times. Yet, I was disappointed that the NY Post did not cite my work. I am not being churlish. It is a violation of journalistic ethics not to acknowledge sources of information which published previously. More important, as blogs come to fill a gap in investigative journalism, those that do good work deserve credit and legitimation by media outlets that build upon their work. My request of my readers is that you write letters to the editors of those publications asking them to properly credit my work and the work of other bloggers. Please post copies of your letters here, in case they don’t publish them. Bloggers do not get paid for their work. Even those that advertise only get a pittance of an income stream. So let’s start rewarding them with credit by those who rely on their efforts.

Hat Tips: to employees, past and present of KCDA, to those in touch with them, and to the malach.

17 thoughts on “Is Subpoenaed ADA Blowing the Whistle Again?

  1. I have this reoccurring fantasy that Ken Thompson is reaching out to his friends at the US Attorneys office and getting them to prosecute Hynes and his Goon Squad who have gone so beyond the pale that a criminal prosecution may be the only solution.

    We need to clean house.

  2. Ok. Maybe I’ve had too much to drink on this pleasant Sunday afternoon. It is what we do in our gated apartied community in Breezy, but let’s wrap our heads around this. Barbara Burke is reviewing Jabbar Collins and Joe Bellacosa in on the conviction review panel that might very well review BB’s work? Bellacosa is reviewing Burke. By golly, we’ve got our very own Thornbirds saga going on. The Thornbirds comes to Brooklyn. You couldn’r make it up if you tried.

  3. Wow, this was posted hours ago and Birther-Truther hasn’t yet written a long winded defense of Hynes and demonization of ADA Burke?

  4. Sorry for the delay. I know you missed me. Here’s what I have to say: do you really believe that Hynes would penalize a person like Burke, who has an obviously storied history as a whistleblower and general do-gooder, for acting ethically in the face of KCDA misconduct? And in the middle of a campaign, when he’s under a microscope? Man! You guys are funny.

    And who’s demonizing Burke? I’ve said nothing negative about her through all my posts on this subject.

    I’ve said before that this will have to play out. Too bad you’ve all concluded already what’s “really” going on. I just hope that Lopin will apologize and eat massive crow if it ends up being nothing like what he speculates (more like wishes). I promise to do the same if I’m wrong. With Lopin’s track record, I’m feeling pretty good about my chances.

    • I eat crow when I am wrong. I have titled a few posts “My apologies…” I just don’t think it will happen here. My facts are right. As for implications, time will tell. Unless you are inside, high up, you cannot know I am wrong. You are just inclined to give Joe the benefit of the doubt across the board.

    • Seems like it is time for your to apologize and eat massive crow. According to yesterday’s NY Post, the joint Fed-NYS AG investigation of Hynes corruption was triggered by Barbara Burke’s whistle blowing.

  5. The blatant race baiting and offensive comments about the NYPD are shocking. Hynes has lost any sense of decency.

    How can Hynes tell people to report Orthodox child molesters to the DA and not the police?!? And use Ohel to assist with this process? An agency that stands accused of massive cover-ups and decades of protecting Orthodox child molesters?

    Hynes has the temerity to call Ken Thompson a racist? This from a man who routinely prosecutes innocent black men for crimes they did not commit? Hynes is a racist thug who lives in an all white gated community and he calls Ken Thompson a racist. Wow.

    If Brooklyn doesn’t vote him out of office it almost deserves the humiliation that will unfold in Hynes’ next term.

    Watch this video:

  6. Could Barbara know something about the Lauren Hersh training session video? The one which the City (based upon Hynes’ Goon Squad’s representation) claims doesn’t exist?

    • Could be. There is a long list of things the DA does not want Jabbar Collins and Joel Rudin to know. The Corporate Counsel relies on representations by the DA in replying to Rudin’s discovery requests and motions. It would seem that the DA is very vulnerable to any whistle blower who can reveal a discrepancy between the facts and the DA’s responses to motions and discovery directives by the court. I expect what follows to be very interesting, though it is not clear how quickly this will unfold.

      • If she was working on responses to the Jabbar Collins lawsuit, she might have come across evidence belying ADA Richardson’s claim in Collins’ federal habeas proceeding(some pages are out of order) before Judge Irizarry on June 8, 2010, that prior to May of 2010, when retired NYPD Detective Vincent Gerecitano spoke with ADAs in response to a KCDA subpoena, no one else, in either the KCDA’s office or the NYPD, knew that the principal witness against Collins, Edwin Oliva, had recanted his testimony prior to Collins’ trial in 1995 (Tr. at 109-110). Judge Irizarry found this unbelievable, (Tr. 124) but as the state had conceded that Collins should be released, the court had no jurisdiction to inquire further.

        Collins’ counsel noted that Detective Gerecitano stated in 2010 that Olivas’ 1995 recantation was made in the presence of at least one ADA, although he could not remember names. As Judge Irizarry noted, it is inconceivable that this development was not reported to the senior prosecutor, ADA Michael Vecchione. Perhaps ADA Burke found something that would have refreshed Gerecitano’s memory, breaching the “firewall” isolating the KCDA’s office from criminal charges of obstruction of justice and perjury, and confining the blame to a lone retired detective.

        I trust ADA Burke has written down whatever she has found, left copies with friends, and let it be known that she has done so. It might prevent her accidentally running into a police car, as described in this link YL provided earlier.

          • The ADA present was probably Charles Posner, now deceased (Complaint at 3 n.1), see Complaint at 21, par. 102. See also ADA Richardson’s statement to Judge Irrizary at p.109 (Garecitano disclosure was something “no living member of the Kings County District Attorney’s Office, including former ADA Fisconia [sic] and ADA Vecchione knew.”

        • Kevin in Chicago,

          The DA’s court representative, ADA Kevin Richardson, certainly implied that Charles Posner received the information from Det. G during the session. Given Richardson’s reputation for integrity, I believe that is what he was told by Vecchione. Richardson, had no way of knowing otherwise because so little is put in writing at KCDA. But you gotta wonder about how they conveniently put the blame on a dead man.

          Vecchione will, if deposed, and unable to lie, feign amnesia. However, it is safe to assume he prefers avoiding such situations by offering up a dead man who cannot be deposed.

  7. The interesting thing about retired detective Vincent Gerecitano is that he was already retired in late January or February of 1995 when he interviewed witness Edwin Oliva. Gerecitano had been a homicide detective and worked on the murder of Rabbi Pollack. However, according to para. 98-102 of Collins’ complaint, at the time of the meeting with Oliva in the DA’s office when Oliva recanted his earlier account, Gerecitano had retired from the police force. He had been asked to come to the DA’s office to persuade Oliva to testify, and Oliva was allegedly threatened with prosecution “unless he adopted the false ‘sworn’ statement contained in Gerecitano’s report.”

    If Gerecitano was retired, why was he given that role? Perhaps precisely because he was retired? Perhaps ADA Vecchione and/or Posner set it up, knowing that Oliva would assume that Gerecitano was still a police detective, yet also knowing that the participation of newly-civilian Gerecitano would generate nothing to be discovered in police files, and provide a pretext to claim, if necessary, that since he was not a police officer, whatever Oliva told him was not “Brady/Giglio material.” (As Gerecitano would have been acting at the behest of the prosecution, that claim wouldn’t bear scrutiny, but at least there would be nothing in the file.)

    It is hard to think of another reason why the retired Gerecitano would have been called upon to speak with Oliva; surely other working detectives could have expressed the same threats. Perhaps the subpoena to the pension personnel office issued in Vecchione’s name for information regarding Gerecitano (Vecchione dep. at 159) was to confirm he was actually legally retired, not, e.g., using up accumulated leave time, before asking him to do the job. It seems odd to use a subpoena for mere contact information — surely the KCDA’s office could obtain contact information for a retired detective to contact him concerning a case on which he had worked.

    Gerecitano may prove to be an important link. Although Vecchione was probably not present at Gerecitano’s meeting with Oliva, he surely approved it if he didn’t plan it. And unless Gerecitano did it purely as a favor, the KCDA’s office would have paid him for time and transportation, and there would be a record of who authorized payment.

    Gerecitano may be in a sticky position. Although a civilian when he met with Oliva in 1995, he could be held liable under Section 1983 because he was collaborating with prosecutors. But having retired from the police force, he might not be eligible for indemnification by the City in the event he were found liable for his post-retirement activities. If so, solidarity might not be the most rational choice, and he might be considering the civil-suit variety of a plea bargain — settle with Collins for a small amount, with the understanding that relieving his anxiety will improve his memory substantially.

    All this is speculation — but someone has a lot of explaining to do.

  8. I think her biggest contribution to the case will be her analysis of Rudin’s failure to discipline and supervise prosecutors. In one of her articles before she was an ADA, Burke discusses the extremely difficult burden of trying to demonstrate a pattern of Brady violations yet she specifically references one of Rudin’s other cases where he established the failure to discipline argument. If she was researching these cases and saw a continued pattern of ADA’s being promoted with no discipline and no remedial supervision’ she will be helping Rudin make his lack of supervision claim in Jabbar Collins. She was a school principal and knows more than most the legal ramifications of negligent supervision and when it can arise to deliberate indifference. Now, what if she voiced that concern to others in the office? I know her from law school and she is extremely meticulous in her work.

  9. Collins has two sets of claims — withholding exculpatory/impeaching evidence at his trial in 1995, and then denying the evidence existed in response to his state post-conviction petitions and state-law FOIA requests. The problem with a “failure to train”/City of Canton claim is proving causation. Collins will have to show that the failure to impress ADA’s with their Brady obligations was pervasive in 1994-95. Evidence of ADA’s training and what they were told back then may be hard to come by. One could look at personnel records of ADA’s who had prosecuted cases in which courts had found Brady misconduct, but since the essence of a Brady/Giglio violation is concealment, I would expect there would be few such cases, the tip of an iceberg.

    On the other hand, the alleged deliberate concealment in response to Collins’ petitions for post-conviction relief can hardly be attributed to poor training, but unlike investigation and pretrial, post-conviction is almost all about what’s on paper. If, God forbid, the KCDA’s office regularly did what they allegedly did in Collins’ case — kept exculpatory information in their files while filing lying affidavits denying that it existed — it would be a relatively easy “policy” claim to prove — unless, of course, somebody tampers with the files to make sure that what the ADA’s had sworn wasn’t in them really wasn’t. Perhaps ADA Burke was transferred so that she would not be in a position to look at the files, or to see what other people in the office might be doing with them. (YL says she was doing appellate work, and I believe that department handles post-conviction.)

    Good to hear your praise for Burke. I hope she reads this blog. She seems to have a calling to march into hell and confront the devil, and somebody has to do it. May God bless and keep her, and inspire others to do likewise.

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