Law and Order: Life imitates art – or is the other way around?

I am a major fan of  Law and Order.  The original not any of the spin offs.  I still like to catch a re-run now and then and particularly like the older ones.  Last week a story in the New York Times about Robert M. Morgenthau the retired DA from Manhattan reminded me of the show.  Morgenthau is the model for the original DA, Adam Schiff, from the TV show. Morgenthau retired about three years ago at 90.  He had been DA for 35 years.

Morgenthau is still practicing law.

Mr. Morgenthau, 93, and two other prominent former prosecutors are asking the United States Supreme Court to take up the case of William Ernest Kuenzel, who has been on death row in Alabama for 24 years.

Based on the testimony of two witnesses, Mr. Kuenzel was convicted in 1988 of murdering a convenience store clerk. Records that became available only in 2010 revealed that those two witnesses — one of whom admitted that he himself was involved in the murder — actually did not implicate Mr. Kuenzel when they first spoke with the authorities. In fact, they originally gave entirely different accounts from what they testified to at trial, but the defense lawyer was unaware that their stories had changed. So were the jurors.

Mr. Morgenthau learned about the case from Jeffrey Glen, a law partner of his late son-in-law. Their firm, Anderson Kill & Olick, was working on the appeal, along with David Kochman. To Mr. Morgenthau’s disbelief, the case was rejected by federal courts in Alabama, which ruled that the new evidence did not “refute the possibility that the defendant committed the crime.”

“It’s so wrong to say there’s presumption of guilt because he was convicted once — without the newly discovered evidence,” Mr. Morgenthau said. “I just thought that was off the wall.”

So Mr. Morgenthau contacted 2 other former DA’s and they have filed a friend of the court brief for the Supreme Court asking them to take the case on appeal.

He contacted Gil Garcetti, who served 32 years in the Los Angeles district attorney’s office, and E. Michael McCann, who was the district attorney of Milwaukee for 38 years, and they agreed to join him in a friend-of-the-court brief.

The opening lines explained why their views were worth hearing: They wrote “from the unique perspective of having overseen and been ultimately responsible for more than 7,000,000 criminal prosecutions.”

The concept of new evidence was what led to the reversal of the conviction of five teenaged boys for the attempted murder of  a Central Park jogger.  In 2009 Carlin DeGuerin Miller wrote for a CBS blog

But his tenure hasn’t been without its share of detractors and controversies,
one of the biggest being the wrongful convictions in the 1989 Central Park
Jogger case. In 2002, DNA evidence surfaced that incriminated someone else in
the rape and Morgenthau himself appeared in court to agree with the defense
request to dismiss the charges.

A good prosecutor knows when to cut his losses.  According to the Times, Morgenthau said

“That was a matter of newly discovered evidence,” he said. “I had to act. This case reminded me of that.”

Law and Order lives on in re-runs and Robert Morgenthau is still fighting the good fight for real.

Robert M. Morgenthau is asking the United States Supreme Court to take on the case of a man who has been on death row in Alabama for 24 years.

Robert M. Morgenthau is asking the United States Supreme Court to take on the case of a man who has been on death row in Alabama for 24 years.

Photograph Hiroko Masuike/The New York Times

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