In a decision that has gone unnoticed in the press, a Connecticut court last month reversed a kidnapping conviction finding that the prosecutor in the case, who is now the State’s Attorney for the Hartford Judicial District, hid the existence of a sentencing deal between the state and its chief witness, and permitted the witness to deny in open court that any such deal existed.
In 2005, Lucas Betancourt was tried and convicted of a kidnapping, burglary, and robbery in Waterbury. Though the habeas decision by Judge Vernon Oliver overturning that conviction does not name Betancourt’s prosecutor–like so many decisions that protect the identity of those who have committed misconduct–the Waterbury clerk’s office confirmed to the Open File that the prosecutor was Gail Hardy, who has since been promoted to the position of State’s Attorney for the Hartford District.
One of the chief witnesses that Hardy used to obtain Betancourt’s conviction eleven years ago was an alleged co-conspirator, Felipe Buitrago. He was central to the case partly because the victim could not identify the perpetrators. Six months before Betancourt’s trial, Buitrago had pled guilty to his own role in the crime and been sentenced to five years in prison, followed by five years of probation. This much, Betancourt’s defense was aware of.
The Cover-Up of a Deal
What they were not aware of, according to the opinion we obtained this week, is that Hardy and Buitrago had “entered into a plea agreement, prior to the giving of his testimony, to consent to his motion to seek review of his sentence,” after he gave evidence against Betancourt. The court found, inter alia:
- “On direct examination by the trial prosecutor, there was no mention of any consideration being given to Mr. Buitrago in exchange for his testimony.”
- “On cross-examination, underlying counsel inquired extensively of Mr. Buitrago regarding any incentives from the prosecuting authority to testify, including sentence modification. Mr. Buitrago specifically testified that although he knew what a sentence modification was, he was not hoping to receive consent to have a sentence modification heard by the state and had no intention of applying for a sentence modification.”
- “This testimony went uncorrected by the prosecuting attorney.”
- “In closing arguments, the trial prosecutor referred throughout her argument to the testimony of Felipe Buitrago, Jr., the trial court’s instruction regarding the jury judging the credibility of witnesses, and that ‘the testimony of one witness alone is sufficient to convict the defendant,’ if the jury credits the testimony beyond a reasonable doubt.”
And yet despite these denials, three weeks after Betancourt’s conviction, Buitrago’s attorney did indeed seek a modification of his sentence, a request that required Hardy’s consent to file. Moreover, in order for Buitrago to even qualify for a modified sentence, Hardy had to introduce “a substituted information reducing the number of felonies charged to non-mandatory subsections,” which she did. In March 2006, three months after Betancourt’s conviction, and with Hardy’s approval based on his cooperation in the Betancourt trial, a resentencing court cut Buitrago’s prison time in half.
In short, the judge found, Gail Hardy hid a deal with her chief witness, allowed him to deny it in open court, and then consummated the deal after she had obtained her conviction by first allowing the witness to file for a sentence modification and then supporting it on the record.
Prosecutor to Jury: “You can’t raise a doubt.”
In his opinion Judge Oliver writes, “the existence of the agreement was never disclosed to underlying defense counsel either before or during trial, despite his specific inquiry on the record.”
Based on a review of the whole record, the Court finds the state’s case rested almost exclusively on the trail testimony of Mr. Buitrago. The appellate court agreed, relying almost exclusively on the testimony of Buitrago [in previously denying habeas]…Evidence of the agreement would have been a powerful impeachment tool for the defense and is, therefore, material. The Court finds a reasonable probability that the verdict would have been different had the underlying counsel and the jury been made aware of the agreement.
According to the opinion, during the rebuttal to the defense’s closing argument, Hardy went so far as to tell the jury, “You can’t discount what…Buitrago says merely because the defendant tells you to…you can’t come up with a doubt. You can’t raise a doubt.”
Here is a prosecutor who, a court has found, knew she had made a deal to effectively reduce the sentence a co-conspirator had already been given, and listened silently to him disavow on the stand that he even intended to seek a modification, pointedly telling a jury that “You can’t raise a doubt,” about that witness’ testimony. It is a remarkably brazen act of deception and prosecutorial misconduct.
But not only does Judge Oliver’s decision choose to leave Gail Hardy’s name out of the opinion altogether, referring only to “the prosecuting authority,” it makes no comment in either holding or dicta as to any consequence or sanction that Gail Hardy should face for what appears to be her allowing a witness to perjure himself on the stand.
Inevitably local media, if they report on prosecutorial misconduct, tend to write about it when a murder conviction is overturned or a death sentence is vacated. Such a story is bound to receive more readers, even as it can play to public fears of dangerous criminals being released onto the streets. But the seriousness of misconduct is hardly limited to murder cases.
Lucas Betancourt, whether he is guilty or not, has spent eleven years in prison as the result of his constitutional rights to a fair trial being violated by a prosecutor who has since been promoted to head a State’s Attorneys office. That is news worthy of reporting if the media has any intention of taking seriously its role as a check on the behavior of public officials.