Ethics Watch 2nd Quarter 2021


Professional Conduct Resources

The Right Thing

Code of Conduct

2nd Q 2021 New York State Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

4th Dept

People v Lewis (William), 2021 NY Slip Op 02960 (5/7/21) – Defendant was convicted, after a jury trial, of sexual abuse and predatory sexual assault of a child. Fourth Department rejected his claim of a Brady violation. “We conclude that the material in question—evidence that the victims visited the residence of a registered sex offender while supervised by their mother and evidence from the report of the nurse’s examination of the victims— was either not relevant or not exculpatory (see People v Ulett, 33 NY3d 512, 515 [2019]; People v Boykins, 160 AD3d 1348, 1349 [4th Dept 2018], lv denied 31 NY3d 1145 [2018]).”

People v Mateo Jr. (Nelson), 2021 NY Slip Op 02889 (5/7/21) – Court rejects defendant’s argument that the People’s failure to provide him with Brady material deprived him of a fair trial. Although the People concede that they should have turned over evidence of a 911 call that implicated a different person in the crime, the court held that the defendant’s constitutional rights were not violated as he had ample time to meaningfully use the information at his trial after the belated disclosure.

People v Smith (Dylan), 2021 NY Slip Op 03697 (6/11/21) – The court rejected defendant’s contention that he was deprived of a fair trial by the People’s failure to turn over the Mental Health Court referral for a witness, as defendant had the information prior to trial and was able to use it on cross-examination.

Grand Jury

4th Dept

People v Myers (Jacob), 2021 NY Slip Op 02946 (5/7/21) – Defendant claimed his conviction should be reversed because evidence elicited in his trial on charges of predatory sexual assault of a child presented a different theory of the crime than one set out by the indictment and the bill of particulars. The court rejected that contention. “The indictment charged defendant with committing predatory sexual assault against a child by engaging in ‘two or more acts of sexual conduct, which included at least one act of oral sexual conduct’ with the victim. Although the People’s bill of particulars narrowed the specific type of ‘oral sexual conduct’ alleged, it did not limit the People to only such conduct, nor did it preclude the People from presenting evidence of additional acts of ‘sexual conduct,’ including the ‘sexual contact’ to which the witness testified [citations omitted].”

People v Wilcox (James), 2021 NY Slip Op 02893 (5/7/21) – Defendant was charged after a traffic stop with Criminal Possession of a Controlled Substance in the Fourth Degree and Unlawful Manufacture of Methamphetamine in the Third Degree. County Court dismissed counts one and two of the indictment on the grounds that the Grand Jury presentation was defective and that the evidence presented on count two was insufficient. On the People’s appeal, the Fourth Department concluded that the People should not have disregarded defendant’s request for the Grand Jury to hear from the other two occupants of the vehicle. But it held that that the extraordinary remedy of dismissal was not warranted. “The exceptional remedy of dismissal is available in rare cases of prosecutorial misconduct upon a showing that, in the absence of the complained-of misconduct, the grand jury might have decided not to indict the defendant…. In general, this demanding test is met only where the prosecutor engages in an over-all pattern of bias and misconduct that is pervasive and typically willful, whereas isolated instances of misconduct, including the erroneous handling of evidentiary matters, do not merit invalidation of the indictment [internal punctuation and case citations omitted].”:

Fourth Dept. went on to find that even had the People presented the request to the Grand Jury and they had decided to hear the witnesses, both could have properly invoked their constitutional right against incrimination. It also rejected County Court’s implicit determination that the People should have presented the statements of the witnesses to the Grand Jury as exculpatory evidence. “[T]he allegedly exculpatory evidence neither implicated a complete legal defense nor was of such quality as to create the potential to eliminate a needless or unfounded prosecution…. Rather…, the new statements of the witnesses recanting their original sworn statements to the police merely relate to credibility, a collateral issue that generally does not materially influence a grand jury investigation [internal punctuation and citations omitted].”

People v Gorton (Samson), 2021 NY Slip Op 03708 (6/11/21) – Judgment affirmed. “We reject defendant’s further contention that the indictment should be dismissed because the prosecutor failed to instruct the grand jurors on the justification defense in the context of a robbery. There was no reasonable view of the evidence before the grand jury to support that justification defense (citations omitted). Defendant did not testify before the grand jury, and his statement to the police that was admitted in evidence before the grand jury was equivocal and vague on the issue whether he believed the victim was attempting to rob him.”

Voir Dire

1st Dept

People v Murray (Dexter), 2021 NY Slip Op 04108 (6/29/21) – Reversed and new trial ordered because prosecutor’s elimination of an African-American prospective juror “was simply based on shifting explanations that were transparently pretextual.” Defendant, an African-American who was representing himself at trial, challenged the prosecutor’s use of her peremptory challenges. The First Department did not fault the ADA’s stated reason for excluding one of the two prospective jurors at issue: his brother had been convicted of murder in the same county.

Her explanation for striking the 2nd prospective juror at issue, an African-American man with prior juror experience and who had a job with a moving company? He is “an older gentleman who is unmarried with no children and lives with roommates,” and the prosecutor “thought that because the case was a ‘domestic violence situation where the victim is not testifying, that he would be less likely to rely to [sic] the set of circumstances under which she would not be testifying’.” Defendant pointed out that two people who were white and lived alone had been empaneled without objection by the ADA, and that she also exercised a peremptory challenge against another African-American man. Although the trial court did not sustain defendant’s Batson challenge, the prosecutor apparently thought it prudent to offer, at the close of the day, further explanation:

“In deciding which of those men with my limited number of preemptory challenges to strike and to keep, I considered things such as how many [peremptory] challenges the defendant had, and how far we would get in the panel…. I also considered what jobs the men had[.] For example, juror number ten, Mr. Palikuca said he ran his own business and … had his own company. And so, I selected people who had higher level jobs with all other things being equal. People who indicated that they read, I valued that as well, and I thought that would help with their understanding of also the instructions on the law and following the law, and … deciding this case based on the evidence and nothing else.”

The Appellate Division found the prosecutor’s initial explanation “was not a valid trial-related concern at all” and pointed out that the People had not been able to provide any case law in support of the proposition that “an older gentleman with no children living with roommates would not able to appreciate a domestic violence situation” is “a valid race-neutral explanation.”

The second explanation — belatedly offered after the jury had been sworn and then excused for the day — “was equally pretextual.”

“The prosecutor’s explanation is essentially an attempt to convince this Court with the preposterous proposition that only jurors with ‘higher level jobs’ can effectively consider all the evidence in this case. While a juror’s employment status might be an appropriate race-neutral reason for exclusion, it should be related to the facts of the case [citations omitted]. However, if the employment of the potential juror has no connection with the specific facts of the case then an exclusion of such a juror could constitute discrimination.” The prosecutor here did not make a connection between the professed concerns and “the factual circumstances of the case.”
“Although the crime charged was serious, the facts and legal issues were not complex, and the prosecutor gave no specific basis for concluding that the prospective juror would be unable to perform a juror’s function in this case. Ironically, Robinson had previously served as a juror. In addition to the absence of any reason related specifically to the case, the proffered reason was grounded in a stereotype of dubious validity, and there is no evidence that the prospective juror possessed the qualities supposedly inherent in that stereotype.”

4th Dept

People v Coleman (Michael), 2021 NY Slip Op 03695 (6/11/21) – In a 3-2 decision, the Fourth Dept. agreed with defendant that his trial conviction should be reversed because County Court erred in allowing the People to peremptorily excuse a black juror. The prosecutor’s basis for striking the prospective juror was based on comments “to the effect of they’re not as harsh [and] it was a clear distinction between his views of the police between Brooklyn and Rochester or Monroe County.” But as defense counsel accurately responded, “the prospective juror never described any police entity as ‘harsh,’ said anything negative about police or policing, offered an opinion distinguishing between policing in Rochester or Brooklyn, or stated that he had any interactions with police in either location. Instead, the prospective juror stated that ‘[i]t’s a little easier growing up [in Rochester],’ which related to his prior statement that living in Rochester was ‘a lot different’ than Brooklyn because Rochester was ‘smaller’ and ‘slower [paced].’ The only question asked of the prospective juror that pertained to policing was whether he ever had ‘any different experiences’ regarding ‘law enforcement stuff,’ to which the prospective juror answered in the negative.” In short, “the prosecutor’s proffered race-neutral reason for the peremptory challenge appears to have been based on an erroneous recollection of the prospective juror’s statement,” which was mistakenly accepted by the trial court.

“We conclude that reversal is required because the race-neutral reason proffered by the prosecutor and accepted by the court is not borne out by the record Although the record need not conclusively establish that a prospective juror actually harbors bias in order for a bias-based peremptory challenge to withstand review under Batson (see generally People v Hernandez, 75 NY2d 350, 357 [1990], affd 500 US 352 [1991]), a proffered race-neutral reason cannot withstand a Batson objection where it is based on a statement that the prospective juror did not in fact make.”

Direct

1st Dept

People v Gardner (Simone), 2021 NY Slip Op 02117 (4/6/21) – “As the People concede, a text message from defendant’s phone that predated the charged crime by several months and referred to an unrelated firearm should not have been admitted [at defendant’s trial on CPW charges]. However, we find that the error was harmless in light of the overwhelming evidence of defendant’s guilt [citation omitted].”

People v Rodriguez (Christopher), 2021 NY Slip Op 02367 (4/20/21) – Attempted Burglary 2 conviction reversed and new trial ordered because People should not have been permitted to adduce “such a significant quantum of evidence” regarding defendant’s commission of 2 prior burglaries. Court first rejected defendant’s contention that no such Molineux evidence should have been introduced: “defendant’s assertion of his entry into the building for a purpose other than to burglarize, i.e., to smoke marijuana, put his intent directly at issue, to which the evidence of the prior burglaries was relevant [People v Cass, 18 NY3d 553, 559-60 (2012)].” But “the extensive evidence of the two prior burglaries went well beyond the issue of defendant’s intent and did not outweigh the prejudicial effect to defendant. The jury could well have imputed propensity as opposed to defendant’s intent. Further, the court’s limiting instructions were insufficient to minimize its prejudicial effect.” Lastly, the court found that this error could not be deemed harmless.

People v Jennings (Demel), 2021 NY Slip Op 03262 (5/20/21) – Court rejected defendant’s arguments that (a) he was denied a fair trial because the People adduced allegedly “excessively gruesome and repetitive” evidence of the crime scene & the attempted murder victim’s physical condition, and (b) admission of recording of pre-trial phone call he made from Rikers Island was reversible error.

  • The challenged testimonial, photographic, and video evidence was “plainly relevant” and “was not so inflammatory or extensive as to outweigh its probative value [citation omitted]. Further, to the extent that any of the challenged evidence might be viewed as cumulative or unduly graphic, we find that any error in this regard was harmless in light of the overwhelming evidence establishing defendant’s guilt and refuting his meritless justification defense.”
  • Fact that, unlike defendants at liberty while awaiting trial, he was required to either consent to recording of his phone calls or go without telephone use while a Rikers inmate, “did not run afoul of the equal protection clause” or impermissibly “burden[] a fundamental right [citation omitted].” And even if strict scrutiny were required, there is “compelling justification” for the prison authorities’ restriction. See People v Aviles, 28 NY3d 497, 502 (2016). Lastly, the People elicited sufficient authentication of the recording.

4th Dept

People v Delacruz (Memphis), 2021 NY Slip Op 02634 (4/30/21) – Court rejected defendant’s contention that the People should have sought the court’s permission before offering evidence of defendant’s involvement in a drug transaction. Fourth Dept. held that it was within the trial court’s discretion to allow the testimony even though the People did not seek advance approval because the defendant was aware of the evidence.

People v Jones (Vandon), 2021 NY Slip Op 02895 (5/7/21) -Defendant claimed that the People should not have been permitted to to introduce Molineux evidence at his sex trafficking trial. Fourth Dept. disagreed, holding that County Court did not err in allowing the People to “submit evidence related to conduct concerning other women ‘to establish defendant’s modus operandi and common scheme of using physical abuse to instill fear and obedience in the prostitutes who worked for him’ [citations omitted], and the court’s instructions with regard to the proper use of such information were appropriate.”

People v Hall (James), 2021 NY Slip Op 02901 (5/7/21) – People did not improperly bolster the testimony of victim at child sexual abuse trial. The police investigator “simply explained why certain investigative techniques, such as trying to obtain DNA evidence, were not used in this case. In addition, the testimony of the victim’s aunt that the victim made certain ‘troubling comments’ to her was properly admitted to explain the investigative process and complete the narrative of events leading to defendant’s arrest [citations omitted].”

People v Swift (Albert), 2021 NY Slip Op 03785 (6/11/21) – Molineux evidence of prior domestic violence incidents between the defendant and the victim was properly admitted to provide “background information related to the parties’ relationship and put defendant’s charged conduct in context (see People v Leonard, 29 NY3d 1, 7 [2017]; People v Frankline, 27 NY3d 1113, 1115 [2016]; People v Colbert, 60 AD3d 1209, 1212 [3d Dept 2009]). In addition, the first incident was relevant to establish the existence and defendant’s knowledge of the order of protection that he allegedly violated (see People v Anderson, 120 AD3d 1548, 1548-1549 [4th Dept 2014], lv denied 24 NY3d 1042 [2014]; People v Thomas, 26 AD3d 241, 241 [1st Dept 2006], lv denied 6 NY3d 898 [2006]).”

People v Liggins (Adrian), 2021 NY Slip Op 03767 (6/11/21) – County Court did not err in permitting the People to introduce a wiretap phone call in which defendant talked about kidnapping a prosecution witness. “Although ‘evidence of consciousness of guilt … has limited probative value…, its probative weight is highly dependent upon the facts of each particular case’ (People v Cintron, 95 NY2d 329, 332-333 [2000]). Here, defendant’s statements on the recording were probative of his consciousness of guilt inasmuch as they suggested that he intended to stop a witness from testifying against him and … the court alleviated any undue prejudice by giving an adequate limiting instruction, which the jury is presumed to have followed [citation omitted].”

People v Jacobs (Justin), 2021 NY Slip Op 03712 (6/11/21) – Proper for People to introduce Molineux evidence of an uncharged crime that occurred after the instant offense. “The evidence of an uncharged larceny was properly admitted under the common scheme or plan exception to the Molineux rule [citations omitted].”

People v Harlow (Darrell), 2021 NY Slip Op 03933 (6/17/21) – Defendant argued that trial court committed errors in admitting opinion evidence and hearsay during the People’s direct case. Fourth Dept. agreed, but found the errors to be harmless due to the overwhelming evidence of defendant’s guilt.

  • Opinion Evidence: People should not have asked police officer to identify defendant in surveillance video. “A lay witness may give an opinion concerning the identity of a person depicted in a surveillance video [only] if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the video than is the jury [internal punctuation & citations omitted].” No such basis here. “The officer was not familiar with defendant, and there was no evidence showing that defendant had changed his appearance before trial [citations omitted].”
  • Hearsay: “We also agree with defendant that the court erred in permitting the People to elicit testimony from police officers regarding what they learned from others about defendant’s involvement in the shooting. The challenged testimony was hearsay that was not admissible under any cognizable exception to the hearsay rule. The People essentially argue that this testimony was admissible under People v Molineux (168 NY 264 [1901]) to complete the narrative with background information. We reject that argument and reiterate that “there is no Molineux exception to the rule against hearsay” (People v Meadow, 140 AD3d 1596, 1599 [4th Dept 2016], lv denied 28 NY3d 933 [2016], reconsideration denied 28 NY3d 972 [2016]). There is also no general exception to the hearsay rule for testimony relating to background conduct, information, or explanation of a subject matter or event [citations omitted].”

Cross-examination

4th Dept.

People v McGee (Deron), 2021 NY Slip Op 02954 (5/7/21) – During defendant’s trial on drug possession charges, trial court denied defendant’s motion for a mistrial after the prosecutor asked a defense witness if his opinion of the defendant’s character would change if he knew that the defendant had a previous drug charge. Fourth Dept. declined to reverse. County Court “promptly sustained defendant’s objection to the prosecutor’s question prior to an answer being given by the witness, and thereafter, outside the presence of the jury, sought and obtained defense counsel’s input in fashioning a remedy and curative instruction. In accordance with defense counsel’s request, the court struck the prosecutor’s question from the record and instructed the jury not to consider the question, and the jury is presumed to have followed that curative instruction (citations omitted). Thus, it cannot be said that the court abused its discretion in denying defendant’s motion for a mistrial (citations omitted).”

Summation

4th Dept

People v O’Donnell (Francis), 2021 NY Slip Op 03709 (6/11/21) – Court concluded that prosecutor’s comments on summation did not deprive defendant of a fair trial.

“We nevertheless take this opportunity to reprove the prosecutor for her misstatement of the record during her summation, in which she purported to quote verbatim a statement made by defendant to a trial witness. The prosecutor’s recounting of the purported verbatim quote was materially incorrect, and it transformed the relatively benign—albeit crude—statement that defendant actually made into a far more sinister statement that could be construed as a confession. The prosecutor then compounded her error by arguing, without any record support, that defendant was ‘bragging’ to the trial witness about committing rape. We again remind the People that ‘[p]rosecutors play a distinctive role in the search for truth in criminal cases. As public officers they are charged not simply with seeking convictions but also with ensuring that justice is done. This role gives rise to special responsibilities—constitutional, statutory, ethical, personal—to safeguard the integrity of criminal proceedings and fairness in the criminal process’ (internal punctuation and citation omitted).”

Conflict of Interest-Appearance of Impropriety

2nd Dept

People v Hymes (John), 2021 NY Slip Op 02412 (04/21/21) – Court vacated defendant’s sentence and remitted for resentencing before a different judge. The court held that trial judge improvidently exercised his discretion by denying defendant’s request to recuse himself from sentencing proceedings where the justice’s law clerk was a former Queens Co. ADA who had worked on the early stages of the case before being hired as the judge’s law clerk. Although not a due process violation, where the clerk was not screened from the case and discussed the sentencing with the judge, the judge should have granted the request for recusal.

3rd Dept

People v. Van Alphen (Goliath), 2021 NY Slip OP 04056 (6/24/21) – Appellate Division determined that the Columbia County District Attorney was not disqualified from prosecuting the defendant for a number of sex crimes. The District Attorney had previously been a Family Court Judge and in that capacity had presided over Family Court proceedings involving the defendant and his children/victims. Judiciary Law sec. 17 provides that: “[a] … former judge … shall not act as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him [or her] in his [or her] official character.” Here, the prior Family Court proceeding involved allegations that defendant neglected his children based on his use of cocaine and failure to enroll and remain in a drug rehabilitation program. Because the allegations of sexual abuse being prosecuted in the criminal proceeding were not raised in the Family Court, the Third Dept. concluded that the criminal case was not before the Family Court Judge “in his official character.”

Miscellaneous

1st Dept

People v Carey (Hubert), 2021 NY Slip Op 03151 (5/18/21) – Trial court did not err in denying defendant’s “for cause” challenge to prospective juror, a criminal defense attorney who had previously “served for many years” as NY County ADA. “His professional relationship with the District Attorney’s Office was generally adversarial, and his attendance at a District Attorney charity event and the occasional training sessions he conducted for that office were too minimal, in context, to support a finding of implied bias (see People v Provenzano, 50 NY2d 420 [1980]).”

3rd Dept

People v. Abreu (Hector), 2021 NY Slip OP 03631 (6/10/21) – Where defendant, who had gang affiliations, was convicted of murder and related crimes based on the 2014 shooting of the victim, the Third Department found that the 30-month delay between the commission of the crime and the indictment did not require dismissal of the indictment on constitutional grounds. The People had a good faith basis for the delay: (1) there were no independent eyewitnesses to the shooting; (2) the murder weapon was not recovered; (3) during the investigation, the police were required to review surveillance footage from throughout the City of Schenectady; (4) the police had to identify and interview witnesses with gang affiliations and criminal records which created credibility issues and the need to then corroborate the statements; and (6) the People established that they were actively seeking to identify the shooter and rule out other suspects. Additionally, defendant was incarcerated, from December 2014 until the indictment was returned, on unrelated charges and did not demonstrate any prejudice or that his defense was impaired. As a result, there was no due process or constitutional speedy trial violation.

4th Dept

People v Johnson (Ronald), 2021 NY Slip Op 02702 (4/30/21) – Defendant, who pled guilty to Rape in the Second Degree in satisfaction of an indictment which also charged him with Rape in the First Degree, claimed that extensive pre-indictment delay denied him due process of law. Fourth Dept. rejected this contention. Although the People did not establish good cause for the delay, “after considering all of the relevant factors, defendant’s state constitutional due process rights were not violated because his defense to the charge of which he was convicted was not prejudiced in any conceivable respect by the preindictment delay (see People v Grady, 111 AD2d 932, 932 [2d Dept 1985]).”

People v Wagoner (Tina), 2021 NY Slip Op 03981 (6/17/21) – Fourth Dept. concluded that defendant did not suffer a violation of her constitutional rights by virtue of a delay of more than three years between the child sexual abuse offenses and the indictment.

“Here, although the charges were serious, defendant was not incarcerated pending trial, and the delay was occasioned by circumstances related to the vulnerable victim. The victim was only 12 years old at the time of the last offense, yet she had never attended school. She had significant educational delays and did not initially disclose defendant’s involvement in the underlying sexual offenses (see People v McNeill, 204 AD2d 975, 975-976 [4th Dept 1994], lv denied 84 NY2d 829 [1994]). Although defendant points to the death of two material witnesses as a source of prejudice, she did not make that argument before County Court and, as a result, that contention is not preserved for our review (citations omitted). In any event, the resulting prejudice was minimal and does not outweigh the good-faith determination to delay prosecution (citations omitted).”

People v Harlow (Darrell), 2021 NY Slip Op 03933 (6/17/21) – Defendant argued that prosecutor’s comments at his sentencing regarding his lack of remorse, his absence from the courtroom when the verdict was read and his failure to cooperate with the probation department during the pre-sentence investigation violated his right to remain silent. Fourth Dept. “reject[ed] that contention because a sentencing court must consider all circumstances related to the crime and the defendant when imposing a sentence following conviction (citations omitted). We note that the court is permitted to rely on the type of information that defendant now objects to when considering the sentence to impose (citations omitted), and the record contains no indication that the court relied on improper information in rendering the sentence.”

Trial courts

Prosecutor’s ex parte subpoena of defendant’s medical records sans HIPAA release

  • People v Marrero (Johnny), 2021 NY Slip Op 21093 (Sup Ct, NY County 4/15/21) – Court denied defendant’s motion for an order (a) directing the return, to the court for sealing, of the medical records re his condition-treatment after he was arrested for attempted robbery with a knife, and (b) disqualifying the ADA from further involvement with the case.
“This case concerns a grand jury subpoena, where notice is impractical and potentially ill-advised. Having reviewed the supporting affidavit and arraignment minutes, this court will not overrule, in effect, the two coordinate justices who considered the subpoena proper. However, this court does observe some troubling aspects to the process and questions the necessity for overriding the defendant’s HIPAA protections. Contrary to what the Grand Jury judge may have concluded, the counsel’s statements at arraignment were equivocal and did not signal a clear intent to raise a justification defense. Further, it is not clear from the colloquy at the arraignment that the Marrero intended to testify before the Grand Jury. Although cross grand jury notice was served, the record also reveals that Marrero had a court-related intake appointment scheduled at a conflicting time. Without Marrero’s testimony, there would be virtually no possibility of a justification defense at the grand jury stage, no reason for the prosecutor to give the justification charge or, more to the point, to use the subpoenaed records. The People may have been able to clarify through counsel whether Marrero intended to assert the justification defense at that juncture, and whether the defendant indeed intended to testify before resorting to an ex parte records request.”
“But even if this court were to conclude that the Grand Jury judge should not have issued a judicial subpoena, precluding further use of the records would not necessarily be the remedy. The physician-patient privilege is a statutory right only, without constitutional underpinning. People v. Green, 9 NY3d 277, 281 (2007). It serves to regulate the conduct of doctors, hospitals and medical providers, and the remedy of suppression may unduly punish the state for the misconduct of those third parties. Id. Violation of a statute does not, without more, justify suppressing evidence to which that violation leads. People v. Johnson, 27 NY3d 199 (2016).

Disciplinary & Other Proceedings/Sanctions

  • Upon the stipulation and consent of its Attorney Grievance Committee, the First Department suspended former NYS Attorney General from the practice of law for at least 1 year, conditioned upon his continued mental health treatment and continued monitoring by the New York City Bar Lawyer Assistance Program. “Respondent’s admitted misconduct involves verbal and emotional abuse, and unwanted physical contact with three women. However, respondent does not have any criminal or disciplinary history, he has a significant record of public service, and he has taken steps to address his alcohol abuse and past abusive behavior via his participation in AA and therapy.” Matter of Schneiderman (Eric), 2021 NY Slip Op 02497 (1st Dept 4/27/21).

News From Around the US

Massachusetts
Murder 1 conviction reversed by Massachusetts’ Supreme Judicial Court primarily because the trial prosecutor had not informed the defense before trial of a significant discrepancy between key witness’s pretrial statements and her testimony. Commonwealth v Rodriguez-Nieves (Jorge), 487 Mass 171, 165 NE 3d 1028 (Mass SJC 4/9/21).

Nebraska
County Attorney (who has been in office since late 2012), was publicly reprimanded, upon his consent, by the Nebraska Supreme Court on June 4. The factual allegations — which he did not contest — arose from his handling of felony cases involving several criminal defendants, with lengthy criminal records. Eager to rid the county of these repeat offenders, he made a secret deal with defense counsel (who also received a public reprimand) that “if the defendants would plead guilty or no contest to the pending charges, he would assist in getting their bonds reduced so the defendants could be released from jail before their sentencing.” And if the defendants then absconded and failed to appear for sentencing, he would not seek extradition. One of the defendants covered by this agreement did go on the lam and was later arrested, but the County Attorney “did not attempt to seek extradition, and the defendant was released.” State ex rel. Counsel for Discipline v Bowers (Steven), 309 Neb. 423 (6/4/21).

The local media reported in December of 2019 that the criminal charges against the County Attorney, brought by the State Attorney General’s Office, had been dismissed by judge in adjoining county.

Pennsylvania
On June 30, the Supreme Court of Pennsylvania vacated comedian Bill Cosby’s 2018 convictions for aggravated indecent assault on the ground that the then District Attorney’s declaration in 2005 that he would not prosecute Cosby for crimes involving a former Temple University staff member was one that bound the Commonwealth, i.e., the DA’s successors.

In his 2005 press release, the then Montgomery County DA stated that he was “declin[ing] to authorize the filing of criminal charges in this matter” because “a conviction would be unattainable” due to “insufficient credible and admissible evidence” and Rules of Evidence considerations. He later explained (at the 2016 hearing on Cosby’s habeas corpus application to dismiss the charges) that he wanted to clear the way for a civil lawsuit that could result in a monetary award of damages to the complainant because of the lower burden of proof. Although there was no written agreement, Cosby did not invoke his Fifth Amendment privilege against self-incrimination during any of his 4 depositions that preceded settlement of the civil action.
Citing new evidence, subsequent District Attorneys charged and prosecuted Cosby 10+ years later. The trial court permitted the Commonwealth to use excerpts from Cosby’s civil deposition testimony at the first, 2017 criminal trial, which ended with a hung jury, and at the 2018 trial that resulted in the jury verdict of guilty.

“[W]e hold that, when a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced.” Commonwealth v Cosby (William), citation not yet available (PA Sup Ct 6/30/21).

Appellate attorneys
An attorney’s representation of a party to an appeal is not often the subject of reported disciplinary charges. But this Quarter, three lawyers for appellants drew attention. None of these lawyers is a prosecutor, but the decisions describing their conduct are useful cautions for all appellate litigators.

  • Disciplinary Counsel v Valenti (Kimberly), 2021-Ohio-1373 [slip opinion citation] (OH Sup Ct 4/2121) – Assigned counsel failed to file a timely notice of appeal for one criminal defendant and was derelict in her handling of the appeal of a criminal defendant sentenced to life without parole; she missed multiple deadlines for perfecting that appeal, and although she was given permission to file a post-argument reply brief, her failure to file that prompted the appeals court to assign the case to another attorney for de novo briefing, noting that the initial brief was “inadequate, incoherent and unintelligible” and that she was unprepared for oral argument. (A judge at the oral argument commented that her citations made no sense, and her brief was “52 pages of the most difficult reading I’ve ever probably done in 12 years.”). Upon the recommendation of the Board of Disciplinary Conduct, the Ohio Supreme Court, in essence, put the attorney on 6 months’ professional probation, conditioned upon her completion of CLE courses on both law practice management and technology & criminal appellate law.
  • Following oral argument via Zoom of the appeal arising from a medical malpractice lawsuit, Michigan’s intermediate appellate court sua sponte found the attorney for the plaintiff-respondent in contempt of court and fined him $3000 for thrusting the middle finger of his right hand upwards as his opposing counsel was speaking and then denying he had done so. Ottgen v Katranji, no citation available (Mich Ct of Appeals 2021).
  • The audio recording of self-proclaimed “Annoyance Lawyer” Todd C. Bank’s December 2019 oral argument before the Second Circuit went viral in lawyer circles because of the Queens attorney’s insolence. On May 3, the Circuit’s Grievance Panel issued a public reprimand and instructed its Clerk to serve a copy of the decision and order to the disciplinary committee for the Appellate Division, Second Department. In re Todd C. Bank, citation not yet available (2d Cir 5/3/21).