Pirro's Problem

In the Duke non-rape case, we saw what a prosecutor can do to defendants when Mike Nifong withheld exculpatory evidence. He's likely to be disbarred and could face criminal charges and civil suit for his reprehensible actions.

Now comes word that former Westchester County District Attorney and GOP candidate for the Senate and NY Attorney General, Jeanine Pirro may have withheld evidence from defendants as well. That's real bad news, and far worse than anything else that might have been recorded on tapes that she had made, which are currently in the hands of a federal grand jury.

That fact was disclosed in a filing in federal court in Manhattan in the course of an investigation the purpose of which is not yet fully in the public record. But the disclosures so far indicate that when Ms. Pirro left office in 2005 to run for state attorney general, she asked an investigator to destroy a box containing at least some of the tapes, an assistant district attorney in Westchester, Richard Hecht, wrote in a letter to the 2nd United States Circuit Court of Appeals.

The investigator, who is not identified in the letter, did not follow through, Mr. Hecht wrote.

One of the reasons this is of interest is that that Ms. Pirro's successor now is in possession of a tape suggesting Ms. Pirro failed to disclose evidence that could have helped a man whom Ms. Pirro subsequently charged with murder. But the existence of any tapes immediately raises the question of whom Ms. Pirro was talking to over her years in office and what conversations, whether of a political or legal nature, might be recorded in the surviving tapes.

"The fact that the then District Attorney secretly recorded certain conversations in her office and on her telephone came to light during a still continuing federal grand jury investigation conducted jointly by the United States Attorney and this Office," Mr. Hecht wrote.

A lawyer for Ms. Pirro, William Aronwald, said that Ms. Pirro "did not regularly tape all of her conversations," but declined to comment further. He said any allegations that Ms. Pirro had ordered the destruction of any tapes was "wrong."

"In so far as any claim that she ordered destruction of tapes at any time, that is categorically false," Mr. Aronwald said.

This description of Ms. Pirro's alleged conduct is emerging in court filings before the 2nd Circuit. The appellate court is hearing the case of Anthony DiSimone, who was prosecuted for murder by Ms. Pirro's office in the gang-related murder of Louis Balancio, which occurred outside a bar in Yonkers in 1994. Mr. DiSimone was convicted in 2000, after turning himself in unexpectedly in 1999.

A federal judge overturned Mr. DiSimone's conviction earlier this year, after he served seven years in prison. The district judge, Charles Brieant of United States District Court in Manhattan, said Ms. Pirro's office had withheld evidence that should have been turned over in the case.

Mr. Hecht's letter suggests that the tapes of Ms. Pirro's conversations contain additional leads which were never entered into the case file, much less passed on to the defense. The two taped conversations, both from December 18, 1997, are of telephone calls between Ms. Pirro and the chief of criminal cases for the U.S. attorney's office in Manhattan, Mark Pomerantz. They discuss whom Ms. Pirro ought to charge with the high-profile murder.

According to a transcript of the conversation, Mr. Pomerantz told Ms. Pirro that an FBI informant had heard a different man, whom was also charged in connection to the murder, confess to holding down the victim while yet another man stabbed him.

"This tape was never maintained in any of the files relative to the Balancio homicide or for that matter in any file regularly maintained by the District Attorney's Office," Mr. Hecht wrote to the court. "Additionally, no written record of the taped conversations or the substance of either conversation was found in any of our Office files."

This investigation needs to determine whether Pirro engaged in conduct unbecoming a prosecutor, and if she did indeed withhold evidence from the defense, whether it is grounds for action against Pirro including disbarrment.