Manhattan District Attorney Alvin Bragg, who has faced waves of internal dissent since he assumed office last year, is battling new complaints after his administration went along with the dismissal of a case against a former NYPD detective accused of framing people on drug charges.
State Supreme Court Judge Robert M. Mandelbaum threw out the case after prosecutors admitted that they had — for a third time — failed to turn over records they were required to share with lawyers for Joseph Franco, 50.
The DA’s office concluded that Franco — a 27-year veteran who was active in multiple boroughs — had fabricated claims of witnessing several drug transactions on the Lower East Side.
While the prosecution against Franco involved only five people who were arrested, it led multiple prosecutors to throw out more than 500 convictions in which his now-challenged testimony was critical.
Bragg removed the lead prosecutor, Assistant District Attorney Stephanie Minogue, from the Franco prosecution and demoted her, infuriating some of his assistants who felt that the omissions were unintended and that the office should have fought more to preserve the case.
Some also questioned why leadership sanctioned Minogue, deputy chief of the office’s Police Accountability Unit, before the conclusion of an office review that Bragg announced in the wake of the case collapse.
The tumult became so intense that Bragg called an impromptu video meeting last Wednesday, the day after the judge’s ruling, in which he defended his actions and faced tough questions about Minogue’s demotion.
Presented with questions by THE CITY about the internal discussions, Manhattan District Attorney spokesperson Douglas Cohen said, “The steps taken by the office following the dismissal of this critical case after a series of errors did not reflect a belief that the A.D.A. acted in bad faith.”
He added, “Ultimately, the D.A.’s Office as a whole is responsible for preparing a case. The purpose of the root cause analysis is to understand what the office could have done differently to avoid these errors in the future.”
Rules of Evidence
From the moment Bragg took office last year and began to implement the progressive platform he ran on, he faced a torrent of criticism from the NYPD, state Republicans, and right-wing tabloids. The new prosecutor also weathered extensive criticism over his handling of a lengthy investigation into former President Donald Trump, which is the subject of a critical new book by a former co-lead prosecutor on the case.
Tape marks Bragg’s spot during a press conference.
Ben Fractenberg/THE CITY
Current and former Manhattan prosecutors argue that this new episode hit a particular nerve inside the office because it echoed fears that prosecutors have expressed ever since Albany passed sweeping new evidence-sharing rules in 2019: that they could comb through years of police paperwork, video evidence, cell phone data, and other types of modern case records, and still lose a case because of a failure to locate and turn over what they view as inconsequential or non-exculpatory records.
Public defenders and progressive lawmakers had pushed for those legal changes, known as “discovery” reforms, to combat an oft-used prosecutorial practice of holding back on disclosures until the eve of trial, forcing numerous poor Black and Latino defendants to weigh whether they should fight their cases or take plea deals in the dark.
In the case dismissed by Mandelbaum, the defendant benefiting from the discovery lapses was not an indigent client, but a veteran narcotics cop.
Charles Knapp, a former assistant U.S. attorney and Manhattan assistant district attorney, said Bragg’s move sent mixed messages to his subordinates.
“The good one is, ‘We take discovery obligations seriously,’” Knapp said. “The bad message is, ‘If you mess up, even innocently, we’re throwing you under the bus.’ And that’s a terrible message for the rank and file because frankly with all the cases each individual assistant DA is responsible for, you can never know for sure.”
Discovery Obligations
DA spokesperson Cohen pointed out that the office’s decision came after Minogue’s repeated failures to comply with discovery laws, not a one-off incident.
“The D.A. made his decision based on the nature of the errors, the multiple representations of compliance made to the court, and the court record,” he said. “They were not grounds for termination, however, which is why the D.A. believed having her continue as a line A.D.A. was appropriate.”
In a phone call, Howard Tanner, Franco’s attorney, declined to “go into the particulars” of the DA’s evidentiary failures. Tanner argued, however, that the violations went beyond Minogue, stretched back several years, and would have been discovery violations even before the reforms went into effect in 2020.
“I can only tell you that it was a series of serious failures of their discovery obligations, some more serious than others, but all violations nonetheless, culminating in an a confirmation that they had had lied and misrepresented what was lost evidence that that they’ve known about for four to five years, which affected to the very core my client’s due process rights to a fair trial,” said Tanner.
“At this time, we don’t believe the materials were exculpatory,” said Cohen.
A High-Profile Failure
The prosecution of Franco was supposed to be a signature case for Bragg, who made police accountability a core issue of his election campaign. This account of its collapse and the subsequent fallout is based on interviews with nine current and former Manhattan DA employees.
Franco, a former Manhattan South detective, came onto the district attorney’s radar in 2018 after prosecutors reviewed surveillance footage they believed disproved that he saw the drug deals. In an interview, his attorney Tanner disputed this characterization of the video evidence, which he said “did not in any way prove that Detective Franco did not see what he had indicated in his paperwork.”
The following year, Cyrus Vance Jr., Bragg’s predecessor, announced the indictment against Franco and noted that the office had already moved to vacate three “wrongful convictions” it had uncovered as part of its probe. Over the next three years, as support for criminal justice reforms crested across the country, prosecutors in Manhattan, Brooklyn, and the Bronx threw out the hundreds of convictions involving Franco, which they felt they could no longer stand by.
This January, after delays caused by the pandemic, the Manhattan DA took Franco to trial. In opening arguments, prosecutors argued that the detective lied to their office in multiple criminal cases and that surveillance footage showed he could not have seen several drug buys he swore he witnessed.
“This was not a mistake,” Samantha Dworken, Minogue’s fellow prosecutor, told jurors, according to a report in The New York Times. “It was a pattern.”
Voluminous Violations?
Over the following weeks, the discovery woes in Bragg’s office emerged.
Five days into the trial, Minogue disclosed to the court that her team had failed to turn over cellphone data from several of the people Franco had allegedly falsely arrested, and Rikers calls from one of his former arrestees, according to current and former Manhattan DA employees familiar with the case. In response, Judge Mandelbaum precluded prosecutors from calling certain witnesses.
The following Monday, prosecutors informed the court of another batch of undisclosed records, including two Google map images of a site where some of Franco’s arrests took place, a probation report on one of Franco’s arrestees, and emails between prosecutors. After the second admission, Mandelbaum dropped a handful of the 26 charges against the ex-detective.
“The series of discovery violations were so voluminous, including cellphone extract reports which are terabytes perhaps,” said Tanner. “I still to this day have not been able to go through everything.”
The day after the second admission, last Tuesday, Minogue did not show up to court. That morning, she had discovered yet another record that her team had failed to disclose, a videotaped walkthrough of a site where Franco made some of his arrests. Minogue’s supervisor, Nicholas Viorst, chief of the DA’s police accountability unit, appeared in her place and announced that she had been taken off the trial team.
When Tanner asked for dismissal, the DA’s office did not oppose the motion and Mandelbaum dismissed the case with prejudice, precluding prosecutors from refiling the case in court.
Current and former prosecutors familiar with the Franco case acknowledge that Minogue made mistakes, but argue that they have to be understood in context.
Just Mistakes
One former Manhattan prosecutor familiar with official misconduct cases, who spoke on the condition of anonymity, estimated the case had “ten times” the regular amount of discovery. “Every charge is based on an underlying drug case, which itself is full of things that are discoverable,” he said.
Likewise, a veteran former Manhattan prosecutor familiar with the Franco case argued that none of the disclosures included “Brady” material, exculpatory records that the defense would have rights to access under the landmark 1963 Supreme Court case Brady v. Maryland.
“If there’s a prosecutor out there who’s withholding Brady material, that person should be prosecuted for it as far as I’m concerned. That’s bad,” the veteran prosecutor said. “But this was not one of those cases. These were mistakes.”
Knapp asserts that the Bragg administration should have asked for more time to review the violations and, if warranted, pushed for a hearing to allow the court to assess whether the failures actually prejudiced the defense.
“It just seems an overly harsh sanction to dismiss the case,” Knapp said.
Cohen suggested the office’s hands were tied. “The office opposed dismissal of the case after the first two disclosures,” he said. “After the third disclosure, however, the office did not believe it could represent to the court we provided all the material that should have been turned over during discovery. This decision was made in consultation with the trial team.”
Tanner argued that some of the discovery violations were serious. For example, the district attorney’s office lost the initial versions of the photos culled from Google, which were produced before Minogue came onto the case, he said.
“Instead of disclosing that, they passed off other documents as those original documents, and failed to disclose that to me. In fact, they misrepresented those reproductions to me as the original exhibits used in the initial proceeding, and lied about it for a period of four years,” he said. “It’s not just Minogue, it involves prior ADAs in this.”
Minogue and a former Manhattan prosecutor who was previously on the Franco case did not respond to repeated requests for comment for this story.
A Sudden Meeting
Word of the Franco case collapse last Tuesday spurred immediate texts and calls between Manhattan prosecutors and former colleagues trying to get details on what had happened to the case and Minogue, a mid-career prosecutor who had contributed to two high-profile convictions over the last year.
The questions and tensions inside the office reached such a pitch that last Wednesday, a day after the dismissal, Bragg’s team suddenly invited the office’s chiefs, deputy chiefs, and senior supervisors to a Zoom meeting to go over what had happened.
During the virtual session, Bragg went over Minogue’s evidentiary lapses and promised his subordinates that he was not out to punish prosecutors for good faith mistakes. The office’s general counsel had been tapped to conduct a postmortem of what went wrong with the case, Bragg said.
But according to three people familiar with the meeting, that pledge prompted questioning from Kofi Sansculotte, bureau chief of the Financial Frauds Bureau, who asked whether his boss was saying that Minogue’s actions were not in good faith and why Minogue had been punished if the office had not completed its review.
Sansculotte did not respond to requests for comment.
Another staff member asked why the press office had not made clear that the prosecutor had herself offered to resign before her demotion, a fact that would cut against the perception that the office had unilaterally moved to punish her after the discovery infractions.
In an email, Cohen, a spokesperson for Bragg, did not provide specific information about Bragg’s responses to these questions during the heated meeting, but again pointed out that the office had already twice fought to preserve the case in the face of the repeated errors.
Citing issues of double jeopardy, the DA’s office said it was constrained from retrying Franco. But the former detective is likely to face more days in court.
He is currently facing several lawsuits in state and federal court from people he helped arrest, whose convictions were subsequently vacated. One person he helped arrest, Tameeka Baker, settled her suit against the city, Franco, and three other officers for $25,000 after she served close to a year behind bars before prosecutors threw out her conviction in November of 2018.
