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Judge Faults Queens D.A., Vacates Murder Conviction

March 19, 2013

Griffin called the argument "without merit," and added "Evidence which could be viewed as a motive to fabricate is never collateral; it bears directly on the validity of the witness's testimony."

Griffin ruled the same information that qualified as Rosario material also was Brady material. Specifically, the cash receipts and refusal form were Brady material in "two separate and distinct ways."

At the trial's start, they were evidence of a benefit given to Koumpouras by the prosecution. When Koumpouras said on the stand he did not know of the payments and claimed fear for his safety, "this evidence took on an entirely new aspect; it became evidence that the witness was, for some reason, not telling the truth on the stand."

In his motion, Bedi also asserted a claim of "actual innocence," pointing to three pieces of "newly discovered evidence." In one affidavit, for instance, a man said he overheard shots in the club that night and a now-deceased individual admitted to him he had just shot someone.

But Griffin did not reach the merits of the claim, saying a hearing would have been required to determine witness credibility and the motion was already being granted on other grounds. The defense would be free to present its new evidence during the upcoming retrial.

In court papers, Rudin was critical of what he called the Queens District Attorney's office's "don't ask, don't tell" policy. Rudin claimed Pomodore "surely" knew the types of records maintained by the witness security program. But if she did not know, it was the result of a "Chinese Wall" between the trial assistant and the witness security program that ran afoul of the state and U.S. Constitutions.

The prosecution in court papers refuted Rudin's claim that any separation of witness security files and trial files was unconstitutional. "[T]here is no constitutional requirement that the District Attorney's office maintain their files in a particular manner," the district attorney's office said. Moreover, the office said Rudin's claim it engaged in a "don't ask, don't tell" policy so that trial assistants could avoid knowledge of impeachment material was unsupported.

In an interview, Rudin repeated his attack, saying it was "profoundly disturbing that the district attorney's office would defend the individual prosecutor for failing to correct perjury by claiming she was kept in the dark about the truth based upon an office custom that 50 years of U.S. Supreme Court and New York State Court of Appeals case law holds as blatantly unconstitutional."

"We are not going to discuss our Witness Security Program in the context of this case," said Ryan, the Queens spokesman.

Rudin said he plans to defend Bedi in any criminal action. The parties are due back in court before Griffin on April 18.

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