This week, The Ithaca Voice is featuring Q&As from people running for District Attorney. This is the first of several profiles. If you or someone you know was inadvertently overlooked while The Voice was reaching out to candidates, please contact us a jalmendarez@ithacavoice.com. 

ITHACA, N.Y. — Attorney Edward E. Kopko has more than 30 years of experience working in law as both a prosecutor and defense lawyer.

He has worked thousands of cases, including homicides, and has thoughts on reforms that need to take place on the prosecution side of the Tompkins County Criminal justice system.

Click the questions below to move from question to question. 

 

 

What is your political affiliation?


Democrat, although I think the District Attorney represents all constituents and should avoid overt political ties to any one political organization in order to foster fairness, integrity, and justice in the criminal system.

 

How did you get in to law and what is some of your work background?


I grew up in Fairbanks, Alaska and graduated from the University of Alaska. I was a police officer in Fairbanks before coming to the “lower 48” to attend Syracuse College of Law.

I worked as a clerk in the United States Attorney’s Office in Syracuse doing the grunt-work on cases handled by the Organized Crime Task Force, like culling information from FBI surveillance tapes. While working for the Commission on Judicial Conduct, I investigated allegations of corruption and wrong-doing by New York state judges.

I served in the U.S. Navy Reserves and was Honorably Discharged.

As an Assistant District Attorney, I handled thousands of criminal cases, including homicide prosecutions. Over three decades, I have defended thousands of persons charged with every type of crime, including homicide. I regularly present Continuing Legal Education courses to the Tompkins County Bar Association and always receive exemplary evaluations from my peers. I am delighted to mentor young lawyers who often call upon me for insight and advice. I have far more actual trial experience than any other candidate, having tried hundreds of cases in the last thirty-five years.

What one or two experiences stand out to you as a major professional accomplishment and why?


My conscience and values that I will bring as District Attorney have developed and tempered in light of my thirty-five years of experience as a prosecutor and defense counsel in thousands of cases. As a prosecutor, I had the opportunity to make a day-to-day impact on the lives of everyday citizens. My decision-making was not bound by the single-minded wishes of a particular client.

Instead, the goal of an ethical prosecutor “in a criminal prosecution is not that we win a case, but that justice shall be done.”

But what does it mean to say that justice has been done in an individual case? I believe that prosecutors should be among the most skeptical actors in the criminal justice system about what that concept means and how our decision-making process gets us there. Otherwise, we risk the phrase “doing justice” devolving into a meaningless statement. I have always believed this, but my perspective is informed by my experience in the years after I left the DA’s office and during which time I practiced criminal defense in federal and state courts.

As a prosecutor, I am committed to guarding public safety zealously; but my experience as a defense lawyer has shaped my views about how to define the culture and conscience of a prosecutor’s office as the District Attorney.

What changes, minor or major, do you fell need to happen within the Tompkins County legal system. If you are elected, how will your position as DA help enable these changes?


Conviction Integrity Program

Here are my views on the hard questions of conviction integrity, legal ethics, prosecutorial discretion, and fairness to the accused. What does it take for a prosecutor to go forward with a case? Is it different for the initial charging decision versus the decision to take a case to a jury? When does justice require dismissing a case? What is the interplay between a jury verdict of guilty and a credible post-conviction claim of innocence?

The answers to these questions are not found in the law, or even our ethics rules.

Instead, they are defined by values of conscience and culture, and a healthy skepticism about what it means to do justice in any given case.

But as you all know, more and more in the 21st century, our prosecutorial choices are informed by science. Indeed, any discussion about the role of the modern prosecutor’s office cannot proceed without addressing the revolution wrought by the extraordinary reliability of DNA evidence, and more broadly, the rise of the exoneration movement.

DNA exonerations have had an impact that reaches far beyond giving a falsely convicted defendant his or her freedom. They have shown all of us that an innocent person can land in prison, despite the best efforts of a prosecutor, a judge, and a jury.

The stakes here are obviously high – for innocent defendants wrongfully convicted; for victims who want finality in the face of a conviction; and for the legitimacy of the criminal justice system as a whole.

For this reason, I believe that prosecutors must join other leaders in this arena to examine closely what can lead to wrongful convictions and to take steps to minimize the chance they occur.

My answer is to establish a Conviction Integrity Program. My program has two main parts. First, with respect to what I call the “front-end” of the process, after much study and evaluation, I will put in place new policies, procedures and training to further guard against unjust prosecutions.

And second, on what I call the “back end,” I will institute a program to review convictions – and, occasionally, pending prosecutions – in which the defense has raised a claim of actual innocence.

With respect to the front end – preventing wrongful charging decisions and convictions – I will began by assembling a team of thoughtful and experienced assistant district attorneys, to address particular issues identified in nationwide analyses of exoneration cases.

My team will address areas such as eyewitness identification, use of jailhouse informants, interrogation and confessions, evaluation of police testimony, and preservation and disclosure of evidence that is favorable to the defendant. I will produced a series of uniform questions to systematize our initial analysis of cases. For instance, in eyewitness testimony cases, particularly those involving one witness, my guidelines will explicitly direct the assistant district attorney, at the outset of a case, to analyze the witness’s opportunity to view the perpetrator during the crime; it will direct the prosecutor to preserve the witness’ first written or oral description of the perpetrator, and to investigate in detail any photographic or corporeal identification of the defendant.

The guidelines will encourage the assistant to find independent evidence, such as cellphone tower records, that might place the accused at the scene of the crime, or that might establish an alibi.

Similar directives will guide assistants in determining whether they are fulfilling their obligations to disclose favorable information to the defense, commonly called Brady/Giglio material.

The front-end of the Conviction Integrity Program will not be limited to checklists and paperwork. I will have a “conviction integrity” component to each of my major training sessions. So, for example, assistants receiving training on grand jury practice or the handling of domestic violence cases. They will be trained on ethical issues relating to specific practice areas.

Another practice that I will establish will be to hold “round tables” for major or complex cases. Before presenting these cases to the Grand Jury, homicides and other major cases, will be reviewed by my entire staff, who thoroughly vet the facts and investigative steps in the case.

The idea is simple: reduce the risk of prosecuting the wrong person, and strengthen the cases where I believe the actual perpetrator has been identified. These policies and protocols will be critical to the evolution of the conscience and culture of my office. It is part of the way in which I transmit my values to prosecutors.

It reminds them at a very practical level of what are otherwise just high-minded ideals, that our duty is to do what is right in every case, wherever that leads.

But careful prosecutors must go even further to satisfy themselves that they are doing right; because we know that even conscientious prosecutors sometimes get it wrong.

One lesson learned from the exoneration movement is that relatively few unjust convictions are the result of blatant prosecutorial misconduct. Although those cases make headlines and spark public outrage, they mask a more complicated challenge.

Far more wrongful convictions, I would warrant, come from well-intentioned prosecutors who failed to investigate a lead, or were insufficiently skeptical of a witness’s testimony.

And so, when I speak of the conscience and culture of a prosecutor’s office, I have learned much from my years of experience, and from the work of the exoneration movement.

I believe that a healthy skepticism, good, sound procedures, and an appreciation of the history of what has gone wrong at times in the past, are the prosecutor’s best protections against the possibility of convicting the innocent, and the surest path to ensuring the integrity of convictions.

But what about concrete cases, in which, typically, a defendant who has been convicted raises a new claim of actual innocence? This is what I call the back-end of my Conviction Integrity Program. I will put in place a procedure by which every post- conviction claim of actual innocence I receive is also standardized, beginning with a case review by me directly. If I believe that a reinvestigation is appropriate, I will ask the Conviction Integrity Panel to review the case. The Panel will consist of Tompkins County community leaders whose judgment and integrity can be relied upon to foster public trust and confidence in the criminal justice system.

That Panel will make a recommendation that ultimately is presented to me.

Let me describe what a typical re-investigation would look like. It begins by reviewing the evidence presented at trial. Then, we would locate witnesses for interview and re-interview, wherever they may be, with a particular eye toward trying to identify any witnesses who might have been overlooked in the original investigation, or who might only have come to light post-verdict. We seek out any new sources of physical or documentary evidence or forensic evidence. We offer to meet with the defendant and his or her attorney for an interview.

But that description of the process leaves one big question unanswered: after we have re-investigated, after we’ve assembled all this evidence, how do we decide whether or not to vacate the conviction?

This makes our determination more difficult, but in no way diminishes its importance. We do not stop our analysis simply because there is no single, crucial, dispositive piece of evidence. Indeed, after a great deal of internal debate, we decided that not even a plea of guilty will preclude full consideration of a claim of actual innocence, if there is a plausible reason for the plea of guilty and an evidentiary claim that seems worthy of investigation.

That leads us to the question of what weight to accord to a jury verdict of guilty.

I do not pretend to have devised a simple formula in this regard. I will say this: if in reviewing a case, I have access to critical, newly discovered evidence the jury did not see, or if I have found some fundamental defect in the trial itself that suggests that the jury did not have a fair opportunity to evaluate the evidence, then I need to look at the verdict with fresh eyes and ask whether, in fairness, it can stand.

When I doubt that it can stand, I will move to vacate the conviction. But when I am looking at essentially the same evidence the jury saw, and where the trial seems to me to have been conducted in a fair and competent manner, I am very strongly disinclined to vacate a jury verdict of guilty, even if I feel, in hindsight, that we might have reached a different verdict.

Among the most difficult cases that prosecutors confront are those in which a witness’s credibility is so compromised that it becomes difficult to draw a reliable conclusion, one way or the other, regarding whether a crime has been committed. Even in this era of seemingly ubiquitous security cameras, cellphone videos, and trace forensic evidence, there are still many cases that reduce to a contest of credibility, or that rely on the abilities of human perception, with little to corroborate or contradict either account.

What does conscience command in such cases? What is my yardstick?

I believe that I should not proceed to trial with a case unless I am personally convinced beyond a reasonable doubt of the defendant’s guilt. Now, this is not a truism.

Under New York’s legal ethics rules charges may be brought against a defendant and a defendant tried, if they are supported by probable cause. Under our ethics rules and law, it is perfectly legal for a prosecutor to say, “I will not substitute my judgment for that of a jury; if there is probable cause to bring a case to trial, I will do so and let a jury decide.”

I approach this process differently. In the initial charging decision, probable cause is of course sufficient to initiate and proceed with a prosecution. But before proceeding to trial, I believe prosecutors in my office should be personally convinced beyond a reasonable doubt of the defendant’s guilt. Put simply, if we are not convinced beyond a reasonable doubt that the defendant is guilty, how can we ask a jury to find him guilty?

Now, an investigation may uncover outrageous immorality and mounds of suspicion; but when the investigative work up until trial fails to produce convincing evidence of guilt, we should not proceed – regardless of any public pressure to move ahead. Not surprisingly, such cases comprise one of the most difficult parts of our work.

Nonetheless, making those tough decisions defines the conscience and culture of a prosecutor more than any conviction reported on the front page of a newspaper.

On the other hand, I will fearlessly move forward with cases that I believe in, even if the prosecution is unpopular or even unlikely to result in a conviction. Here, conscience tells me I must go forward. Many are the times prosecutors enter a courtroom knowing the odds are stacked against them as they move a case to trial. On the one hand, we need to be fierce advocates and protect the victims of crime, sometimes against great odds. Yet prosecutors have a broader set of unique obligations to the community, the victim and the defendant.

So, I will exercise prosecutorial power responsibly, and with a sense of humility. And that may require me to dismiss charges, no matter the public outrage.

Thus, I believe in this definition of justice to mean a “two-fold aim . . . that guilt should not escape or innocence suffer.”

These are the values I learned as a prosecutor and defense counsel over three decades of practicing law. These are the values I believe we all share as stewards of the criminal justice system; and these are the values that I hope to carry with me as I go forward as the District Attorney Tompkins County.

Specialized, Problem-Solving Courts

Specialized courts take different forms depending on the problems they are designed to address. Drug and mental health courts focus on treatment and rehabilitation. Community courts combine treatment, community responsibility, accountability and support to both litigants and victims.

Sex offense, domestic violence and integrated domestic violence courts employ judicial monitoring and the use of mandated programs and probation to ensure compliance, facilitate access to services and remove artificial barriers between case types. I would enhance the function of specialized courts to maximize potential and enthusiastically support the function and goals of the courts.

Victim Advocacy/Restorative Justice

I support an approach to prosecution that is “victim centered” instead of “defendant centered.” In a Restorative Justice conference the victim, if he or she wants to do so, speaks directly to the defendant about how the crime affected his or her life. The victim also has input into the appropriate disposition of the prosecution.

Prosecutor/Law Enforcement Continuing Education Initiative

I will host symposia for professionals from throughout the criminal justice system, including prosecutors, law enforcement personnel, defense attorneys, judges, and researchers, as I have done with CLE courses mentioned above.

Such events focus on broad and timely issues in criminal justice policy and provide a space for the constructive exchange of ideas and training, particularly with training about the constitutional rights of citizens during interactions with law enforcement. As an example of the type of training I will present, two recent scientific studies suggest new techniques for police interviewing witnesses.

Traditionally, witnesses are interviewed separately to obtain versions of the event that are untainted. This protocol should continue, but with that added step of then interviewing witnesses together. Research shows that the group interview following the individual interview adds a depth of new facts.

LGBTQ

I support and celebrate Ithaca’s LGBTQ community to show the world our diversity, our resilience, and our vision for a safer and more compassionate community.

Incidents of homophobia and hate remain real and painful challenges for the LGBTQ community, and in the wake of threats or violence, I unhesitatingly support this vital community in its quest to emerge stronger every time. This community has so much to teach us, and we have much to learn.

Gun Violence

I applaud the Supreme Court’s decision confirming that domestic violence abusers convicted of a broad range of violent misdemeanors can be barred from owning weapons. Guns and domestic violence are a lethal combination. When an abusive partner is permitted access to firearms, the risk that the other partner – usually a woman – will be killed increases more than five-fold.

Evaluate Prosecutors as Public Servant

Serving as an assistant district attorney is a privilege. I will establish a system to enhance and foster the professional development of my assistants by having them fairly evaluated for the quality of their service to all the constituents of my office.

Traffic Ticket Diversion Program

As the Tompkins County District Attorney, I will implement a program whereby motorists charged with certain non-serious speeding, moving, and equipment violations may attend a traffic safety course approved by the New York State Department of Motor Vehicles in lieu of a conviction for the traffic offense.

Upon the successful completion of this traffic safety course, the motorist’s traffic ticket will be dismissed, there will be no fine or surcharge, and there will be no record of conviction on the motorist’s driving record.

Master Detective/Investigator Program

The unwavering duty of a prosecutor is to ensure justice. Well-established law imposes upon the prosecutor the duty to disclose any exculpatory evidence to a defendant. This obligation is commonly called Brady/Giglio material.

I will establish strict protocols for my office to identify and disclose Brady/Giglio material. I will also establish a master Detective Program through which experienced investigators from every law enforcement agency in Tompkins

County will receive intensive, specialized training to assist in the development and presentation of prosecutions. This program will include a specific focus to train the police to identify, preserve, and collect Brady/Giglio material to ensure that every conviction is supported by unsalable integrity.

IPad for Police

As funds are available, I will provide Ipads to police agency for law enforcement use to record video statements of witnesses, take photographs and video, make sketches, take measurements, perform techniques to collect evidence like taking a latent fingerprint, tag, log, and describe all the evidence collected. The total record of the scene needs to provide a level of detail sufficient for someone who was not there, like the criminal investigators or the legal teams involved in a later court case, to reconstruct it.

Community Partnership

I am committed to helping local residents and businesses solve crime problems and develop strategies to prevent crime. I would meet with representatives from schools, associations, tenants’ groups, landlords, social service providers, community coalitions, hospitals, site managers, parent associations, senior citizen groups, gay, lesbian and transgender organizations, business improvement districts, community boards, libraries, and other community-based organizations seeking to solve neighborhood crime problems.

My assistant district attorneys will be assigned to each town to develop a community partnership to address crime problems immediately.

Paperless Office

To wisely use the taxpayer money provided to me, I would gradually establish a “paperless” office. Actually, “paperless” is something of a misnomer. A more accurate term would be ‘fileless,’ as there will always be a need for some paper in the court system.

But under a “fileless” system, prosecutors and clerical staff will not spend their work days creating, carrying and storing thousands of paper files as they have for decades.

All of their cases and the information needed to conduct their weekly  criminal calendars will be accessible from their laptop or IPad while in the courthouse.

I will also adopt a prosecutor’s criminal case management system, like “Prosecutor by Karpel,” as determined by a thorough study of the available case management systems.

Former District Attorney Gwen Wilkinson supports drug reform law and helped write parts of The Ithaca Plan. How have you seen the legal system fail or help addicts?

Provided photo

The Ithaca Plan/My Solution

I enthusiastically applaud and embrace the concepts expressed in the “Ithaca Plan: a Public Health and Safety Approach to Drugs and Drug Policy.” Like all public projects, money thwarts the implementation of all of the good ideas contained in the Plan, but I have my own plan for providing some funding to get this concept to the point where our community is actually benefiting.

Here is my funding idea.

About 95% of all criminal cases are resolved by a negotiated plea and many of these dispositions could entail a donation by the defendant to the not for profit organizations that need money to pay for the Plan. The N.Y. State Bar Association’s Committee on Professional Ethics approved the required donations, and outlined the steps for ethical compliance by the prosecution.

If probable cause supports a charge, and if all terms of the sentence are legal, a district attorney may agree to a plea bargain in which the defendant is required to make a donation: (1) to the statutory program known as STOP-DWI, as long as the district attorney is not also “coordinator” of the county’s STOP-DWI program; or (2) to a not-for-profit organization, as long as the prosecutors handling or supervising the case do not have a “personal interest” in the organization that reasonably may affect their judgment; they do not know that any lawyer in the district attorney’s office has such an interest; and the donation to the organization does not create an appearance of impropriety.

I don’t know how much money my idea will generate, but it’s a start at having defendants in the criminal justice system paying for cost of implementing the Plan.

The State of New York has a similar program with the surcharges paid by anyone who has received a traffic ticket. New York collects that money and distributes to pay the costs of assigned counsel in New York, and other projects. Our entire community could benefit from my idea.

Reentry Programs

I am convinced that reentry programs are the most meaningful, cost-effective way to reduce recidivism and improve public safety. As District Attorney, I will continue to enforce the law and seek prison sentences for those who are convicted of serious crimes and pose significant risks to others.

However, sending someone to prison without a reentry strategy fails to recognize that individual’s potential for positive change and the eventual ability to reenter the community. I will develop and implement comprehensive and collaborative strategies that address the challenges posed by reentry to increase public safety and reduce recidivism for individuals reentering communities from incarceration who are at medium to risk for recidivating. Within the context of this initiative, I envision a process that begins when the individual is first incarcerated (pre-release) and ends with his or her successful reduction in risk of recidivism and community reintegration (post-release).

This process should provide the individual with appropriate evidence-based services, including reentry planning that addresses individual criminogenic needs identified through information obtained from an empirically validated risk/needs assessment that also reflects the risk of recidivism for each individual.

The reentry plan will reflect both specific and ongoing pre-release and post-release needs, and a strategy for ensuring that these needs are met throughout the duration of the reentry process.

Proposed new legislation indicated that funding for assigned counsel is likely about to change in a major way and will, will be paid for through the state instead of the county.In what ways do you think this will impact representation for low income and indigent people? How does that impact you on the prosecution side?


Bias in the Criminal Justice System. As Supreme Court Justice Anthony Kennedy once observed (in the 2001 case of Board of Trustees v. Garrett), prejudice may arise from not just overt “malice or hostile animus alone,” but also “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in respects from ourselves.”

Given the history of implicit and explicit racial bias and discrimination in this country, there has long been a strained relationship between the African-American community and law enforcement. But with video cameras and extensive news coverage bringing images and stories of violent encounters between (mostly white) law enforcement officers and (almost exclusively African-American and Latino) unarmed individuals into American homes, it is not surprising that the absence of criminal charges in many of these cases has caused so many people to doubt the ability of the criminal justice system to treat individuals fairly, impartially and without regard to their race.

There is a growing skepticism that the integrity of the criminal justice system is driven by real and perceived evidence of racial bias among some representatives of that system.

Given these realities, it is not only time for a careful look at what caused the current crisis, but also time to initiate an affirmative effort to eradicate implied or perceived racial bias – in all of its forms – from the criminal justice system. I will initiate a dialogue among all the stakeholders in the County about race and how it affects criminal justice decision-
making.

I will assemble a task force of representatives of the judiciary, law enforcement and prosecutors, defenders and defense counsel, probation and parole officers and community organizations – to examine the racial impact that policing priorities and prosecutorial and judicial decisions might produce and whether alternative approaches that do not produce racial disparities might be implemented without compromising public safety.

Is there anything else you want to add that we might not have asked?


I want to be your next Tompkins County District Attorney because your life and safety matters to me. Our community matters to me. Your future, and that of our county, matters to me.

The District Attorney has wide discretion over whom to prosecute and to what extent. Further, the District Attorney is the manager of a substantial office budget annually.

This means the person you elect should be fair, firm, and fiscally responsible.  The person you elect should have a deep range of experience and perspective. The person you elect should operate with the highest level of ethics and professionalism. Their character and actions must be beyond reproach.

The person you elect must be a symbol of hope and fairness to ensure that victims will always receive justice and defendants will be treated impartially.

I possess the necessary experience and perspective to lead our county. I have served as a defense attorney and assistant district attorney. I am a proven leader who knows how to manage and prioritize resources, collaborate with stakeholders to achiev successful results and connect with the community. And, even more, I have the drive and commitment to make Tompkins County a safer and a better place for all of us to live, work and play.

It is for these reasons that I ask for your support and more importantly, your vote.

Together, we can develop the type of law enforcement that Tompkins County needs to insure safety, integrity, and fairness.

Jolene Almendarez

Jolene Almendarez is Managing Editor at The Ithaca Voice. She can be reached at jalmendarez@ithacavoice.com; you can learn more about her at the links in the top right of this box.