Erie County DA says some convicts are abusing the system

BUFFALO, N.Y. - More than a decade ago, Dr. Anthony Pignataro was well-known in Western New York. The Amherst physician was famous for inventing snap-on hair pieces, then infamous for trying to kill his own wife.

"By lacing her food with arsenic," Erie County District Attorney Frank Sedita explained.

Sedita was the trial prosecutor back then. He made a plea with Pignataro, who could have gotten 25 years in prison if convicted at trial. Instead, his plea bargain meant he got only 15 years behind bars.

That was the year 2000. Sedita and others thought the case was closed, but it wasn't.

"We have had several lawyers working on this case for 13 years," Sedita said. "It never ends."

That's because Pignataro has filed at least 6 separate appeals. In December, he got out on parole, but he's still appealing.

That's despite the fact that he said he wouldn't. Pignataro agreed to waive his right to appeal in exchange for that plea deal, which gave him a lesser sentence.

"You can go to trial and get convicted as charged, and I'll push for the max," Sedita said. "If you want a plea bargain, or you want consideration from the judge, waive your right to appeal."

But that waiver is no guarantee. Sedita calls Pignataro the poster child for appeal abuse, but it happens a lot.

Defendants plead guilty -- usually in exchange for a lighter sentence -- and say under oath that they won't appeal. Then they almost immediately appeal.

"Your word should mean something, shouldn't it?" Sedita asked.

When Sedita became the elected District Attorney, he took the process a step further by making defendants not only say out loud they wouldn't appeal, but to also require they sign a document waiving their rights.

Part of the written waiver says, "I am giving up the right to appeal because I wish to benefit from the plea which has been offered to me."

Among those who have signed the documents is Danielle Kellogg. In 2012, she was driving while drunk and on drugs when she crossed into oncoming traffic and hit a car. Inside that car was Denise Hine and her 7-month-old daughter Baylee, who didn't survive.

"That would be the last time I would ever look at my baby alive again," Hine said at one of Kellogg's court appearances.

Kellogg pleaded guilty to Vehicular Manslaughter in the First Degree. At her sentencing, she said, "I know I did wrong, and I'm ready to do what I have to do."

But after the judge sentenced her to 15 years in prison, she changed her tune.

Despite what she said in court, despite saying under oath she wouldn't appeal, and despite signing a waiver, she's now appealing her sentence.

"You routinely appeal anyway. There's something wrong with the system," Sedita said.

The D.A highlighted 22 cases where each of the Erie County defendants appealed despite signing written waivers. The Appellate Division unanimously upheld every conviction and sentence.

In the majority of the cases, the appeals court wrote a short response, saying the defendants "knowingly, voluntarily and intelligently waived the right to appeal." But Sedita said it took a lot of work to get to that simple conclusion.

"My appellate attorney has to read the transcript, has to do the research, has to write a brief, has to go up and argue, and so on and so on and so on," he said.

To be fair, in some of those 22 cases, the justices found the waivers to be invalid, although those convicts still lost their appeals. Not a single decision was reversed or modified.

Sedita said securing those decisions cost a lot of time and money.

"It's cost my office thousands of hours in man hours or woman hours and untold amounts of money," Sedita said.

And that's not all. More than 90% of those appeals were handled by the Legal Aid Bureau of Buffalo, which gets most of its funding from taxpayers.

"It's a lot of frivolous litigation at taxpayer expense," Sedita said. "You're paying for it."

2 On Your Side met with Bill Coughlin, who heads up the criminal division of Legal Aid.

"When the D.A. calls a lot of these cases frivolous, you would say?" 2 On Your Side's Michael Wooten asked Coughlin.

"Just because something is a pain doesn't make it frivolous," he responded.

Coughlin strongly defends the right of someone to appeal, no matter the waiver.

"What they have waived are certain rights," Coughlin said, adding that the Constitution expressly requires a defendant be given at least one chance to appeal.

"We're talking about rights," Coughlin said. "We're not talking about individual dislikes or morals. We're talking about what your individual rights are as a citizen of this country."

Coughlin correctly points out that the waiver doesn't apply to some issues, like the defendant's competency or the legality of the sentence, among others. No matter what, the appellate court must consider those appeals. And Coughlin said Legal Aid attorneys don't intentionally pursue cases they know they'll lose. In the end, it's the client's call.

"If (a client) wants to appeal, your attorneys have no choice but to appeal?" Wooten asked.

"No choice at all," Coughlin responded. "We can explain to them they have no chance of winning, explain that we don't see what the issue is, but they do have this one... right to appeal. We have to comply, and that's our job."

In some cases, the appeals work. The D.A. highlighted those 22 cases, but we wanted to dig deeper. So 2 On Your Side examined every Appellate Division ruling for Erie County since 2013.

We found 66 cases where people appealed after pleading guilty and after waiving their rights. The vast majority of cases were affirmed, case closed.

But local courts made some errors. In one case, the guilty plea was vacated. In at least one other, the defendant will get less prison time when he is resentenced. Several other rulings require additional hearings take place or motions be considered before the local court.

"The money spent is worth it to protect that right?" Wooten asked. "Sure it is," Coughlin said. "I can't see how it's not."

For Sedita, it's not about stopping all these appeals. He knows mistakes happen, and there are exceptions. He just argues it's happening way too much.

"It impacts upon the public perception of the integrity of the criminal justice system," he said.

The bottom line is that the Constitution guarantees someone convicted of a crime to at least one appeal if they choose. Many who plead guilty choose not to exercise that right, because they are pleased with the bargain they got. However many others do appeal.

2 On Your Side examined some cases where defendants appealed their sentences that were the very sentences they bargained for. Sedita called those frivolous and costly.

Coughlin countered that he cannot personally fault someone for exercising that Constitutional right.

Both men, who are well-respected in the legal community, mentioned their respect for the other, and Sedita pointed out several times that he believes every indigent defendant has a Constitutional right to competent counsel free of charge if he or she cannot afford it.

"That is sacrosanct," he said.


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