Ethics Watch 4th Quarter 2020

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Code of Conduct

4th Q 2020 New York State Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

1st Dept

People v Tripathy (Sanjay), 2020 NY Slip Op 05693 (1st Dept 10/13/20) – In affirming defendant’s convictions for assaults and strangulation, 1st Dept rejected his Brady-based claim. “Based on our in camera review of sealed materials, we find that the motion court providently exercised its discretion when, after its own in camera review, it denied disclosure of messages between the victim and men uninvolved in this case, using the same dating website through which the victim and defendant met. These messages were not material, because they were generally cumulative of evidence presented at trial such as messages between the victim and defendant, and there is no reasonable possibility that disclosure of this evidence would have changed the verdict (see People v Giuca, 33 NY3d 462, 476-77 [2019]). Moreover, the messages had little probative value and implicated the Rape Shield Law (CPL 60.42).”

2nd Dept

Matter of Kurtzrock (Glenn), 2020 NY Slip Op 08114 (12/30/20) – Former prosecutor suspended from the practice of law for 2 years because, having largely “delegated responsibility for compliance with Brady to the police,” he admittedly had not disclosed numerous items of Brady and Rosario material to defense counsel in a murder-robbery prosecution. Items favorable to the defense included appreciable evidence implicating another man as the person responsible for the fatal shooting & information that sorely undermined the credibility of the People’s 2 chief witnesses, one of whom was the defendant’s ex-girlfriend.

4th Dept

People v Salters (Clifford), 2020 NY Slip Op 05662 (10/9/20) – On appeal from plea conviction of first degree manslaughter, defendant argued that the trial court had erred in granting the People’s motion for a protective order regarding the identity of prosecution witnesses. The Fourth Dept. observed that, by pleading guilty, “defendant forfeited that contention because ‘the forfeiture occasioned by a guilty plea extends to claims premised upon, inter alia, . . . motions relating to discovery,’ such as the People’s motion for a protective order here [citations omitted]. Our ruling in People v Wilson (159 AD3d 1600, 1601 [4th Dept 2018]) is limited to alleged Brady violations and, given the absence of a Brady claim in this case, has no applicability here.”

People v McFadden (Duwayne), 2020 NY Slip Op 07759 (12/23/2020) – Defendant contended that (i) the trial court committed error by failing to impose a sanction as a result of the People’s Rosario violation, and (ii) the appellate court should apply the discovery statutes which took effect in January of 2020 to this trial as opposed to the law that existed at the time of the trial. The court rejected both contentions. Regarding the Rosario violation, the court found that because a transcript of the transmissions was given to the defense, the defendant was not prejudiced by People’s failure to turn over radio transmissions which had been requested before they were destroyed by the police department. The court further declined to apply new CPL Article 245: “while procedural changes are, in the absence of words of exclusion, deemed applicable to ‘subsequent proceedings in pending actions…, it takes a clear expression of the legislative purpose to justify a retrospective application of even a procedural statute so as to affect proceedings previously taken in such actions [Simonson v International Bank, 14 NY2d 281, 289 (1964); other citations & internal punctuation omitted].” Indeed, “it would be particularly inappropriate for the courts now to undertake the formulation of new rules, and hold them applicable to cases instituted years ago” (Simonson, 14 NY2d at 288).”

Voir Dire

Trial courts

People v Morant (Paul) and People v Valdez (Santiago), 2020 NY Slip Op 20330 (Sup Ct, Queens County 12/10/20) – The Queens District Attorney’s Office joined in the CPL 440.10 (1) (f) motions seeking vacatur of these mid-1990’s judgments of convictions owing to the “‘persuasive evidence [that] unconstitutional discrimination’ motivated [the trial prosecutor’s] use of peremptory strikes against prospective jurors.”

The respective trial transcripts — and detailed notes in the prosecutor’s trial files, scrutinized upon receipt of a FOIL request — showed that he purposefully exercised peremptory challenges as per a jury selection “cheat sheet” (also in his files) which encouraged elimination “on the basis of race (‘Get white jurors that are like W’s’); gender (‘don’t want to[o] many females’; ‘stay away’ from ‘grandmotherly’ and ‘mother types’); religion (‘No Jews’); and ethnicity (‘No Hispanics’).” Additionally, neighborhoods were ranked 1-5, and “a number of neighborhoods that, in the mid-1990s, likely would have been characterized as white and working class … are listed under the approving and double-underlined heading ‘Yes'” whereas a prospective juror from a more predominantly Black neighborhood was to be considered only if s/he were a “good solid” Black citizen, as if that “[were] the exception rather than the rule.”

When interviewed by the DA’s Office, the former ADA “appears not to have distanced himself” from the evidence of his purposeful discrimination.
The court noted that the Queens DA’s Office, which recently established a Conviction Integrity Unit, “has committed to conducting a thorough investigation to uncover the origins of the Batson-violative instructions and the full extent of their use.”


1st Dept

People v Arnoat (Ruddy), 2020 NY Slip Op 05301 (10/1/20) – Upheld trial court’s denial of a mistrial when prosecution witness’s testimony included two brief allusions to uncharged conduct by defendant. “The court gave a prompt, appropriate curative instruction in one instance, and defense counsel declined to have such an instruction given in the other. The court addressed the issue in a manner sufficient to alleviate any potential prejudice, and the drastic remedy of a mistrial was not warranted (see People v Garcia, 110 AD3d 530 [1st Dept 2013]).”

People v Narvaez (Milton), 2020 NY Slip Op 05300 (10/1/20) – In affirming defendant’s convictions for 98 counts of child sex offenses, the First Department held that “one video and one photograph of defendant engaging in sexually explicit but noncriminal behavior in the church where one of the crimes occurred” were properly admitted on the People’s case. “The evidence was probative of defendant’s identity as the person sexually assaulting the young girl, who was never identified, in a video recovered from defendant’s camera, and demonstrated that he had access to the obscure storage room in which the sexual assault occurred. The probative value of the images outweighed the risk of undue prejudice (see People v Morris, 21 NY3d 588, 594 [2013]).”

People v Moreno (Bryan), 2020 NY Slip Op 05468 (10/6/20) – “Evidence of defendant’s prior abusive conduct toward victim was properly admitted as proof of his intent in entering her apartment, and to provide context regarding the nature of their relationship [see People v Dorm, 12 NY3d 16 (2009); other citation omitted]. The probative value of this evidence outweighed any prejudicial effect, which was minimized by the court’s limiting instruction.”

People v Rositas (Carlos), 2020 NY Slip Op 06023 (10/22/20) – “The People took appropriate steps to correct allegedly inaccurate testimony by one of their witnesses [citation omitted]. The witness testified about two matters relating to the process by which he was brought to court. The first matter involved a conversation between the witness and the prosecutor, and the second involved a detective’s service of a subpoena. As for the first matter, the prosecutor stipulated to facts that contradicted the witness’s testimony. As to the second, the prosecutor stipulated to details about which the detective would have testified had he been called to do so. These details also contradicted the witness’s testimony. Defendant had a meaningful opportunity to question the witness on these subjects during cross-examination, did not ask for any further opportunity to do so, and was not prejudiced. On appeal, defendant’s principal complaint is that the prosecutor refused to stipulate that the witness’s testimony was ‘false.’ However, that was a question for the jury to decide after consideration of the testimony and the stipulations. In any event, these matters relating to the witness’s appearance at the trial did not concern any material issue in the case.”

People v Giles (Daikwan), 2020 NY Slip Op 06870 (11/19/20) – People properly permitted to impeach a reluctant prosecution witness by means of his grand jury testimony. “Regardless of whether this witness’s grand jury testimony was admissible for impeachment purposes, the court providently exercised its discretion in admitting it as evidence in chief, under the doctrine of past recollection recorded (see People v Tapia, 33 NY3d 257, 264 [2019]). The reluctant witness’s ultimate trial testimony unequivocally satisfied all of the requirements for admission on that basis. The record fails to support defendant’s assertion that the witness was improperly induced or coached into giving testimony that satisfied the foundational requirements for receiving his grand jury testimony as past recollection recorded.”

3rd Dept

People v. Hilts (Jeffrey), 2020 NY Slip Op 06173 (10/29/20) –Prior to trial of defendant and co-defendant for weapons possession and sale, the prosecutor filed a Molineux motion seeking to introduce evidence of both co-defendants gang affiliation to explain the relationships among the participants to the sale, but did not intend to introduce evidence connecting either co-defendant to other gang related criminal conduct including sales of narcotics. At trial, on cross-examination, a witness testified that while the gun sale was taking place, other people were believed to be cutting narcotics in the back of defendant Hilts’ house. The Appellate Division found that the County Court did not abuse its discretion when it concluded that the probative value of the evidence of gang affiliation outweighed the potential for undue prejudice. The gang affiliation evidence explained why the FBI was conducting surveillance, why the CI was comfortable approaching defendant Hilts about the weapons sale and why defendant Hilts was able to arrange the sale while removing himself from the actual transaction. Although on cross examination by co-defendant’s counsel, an FBI agent referred to the cutting of narcotics in the back of the house while the firearms sale was occurring, that did not violate the Molineux ruling because it did not suggest that either defendant Hilts or his co-defendant were involved in the sale of narcotics and the evidence established that defendant Hilts was not even in the residence at the time. The trial court struck the reference about drugs and properly exercised its discretion in denying defendant’s mistrial motion.

People v. May (Nicholas), 2020 NY Slip Op 06316 (11/5/20) – At trial for child sex abuse, in light of the witness’ training and experience, the trial court properly allowed the Nurse Practitioner, who examined the child victim, to state that an unremarkable sexual abuse examination was not uncommon in a case of child sex abuse. Also, the trial court properly allowed a licensed clinical social worker — who had clinical experience, but who knew nothing about this case and did not give an opinion as to whether the victim had been abused — to explain why a child sex abuse victim might delay in reporting the abuse and initially might not give a complete account of the events.

4th Dept

People v Sylvester (Joachim), 2020 NY Slip Op 06891 (11/20/20) – Defendant’s conviction for attempted murder in the second degree and criminal possession of a weapon in the second degree reversed and a new trial granted. The court found that the prosecutor impermissibly presented evidence of an uncharged shooting under the theory that the defendant had ‘opened the door’ to the admission of the evidence during their cross-examination of a law enforcement witness. The court also found that the prosecutor improperly impeached two of their own witnesses, thereby depriving the defendant of a fair trial.

  • Regarding the improper admission of a prior uncharged crime, the court held, “[e]ven assuming, arguendo, that defense counsel opened the door to further explanation, we note that “[t]he ‘opening the door’ theory does not provide an independent basis for introducing new evidence on redirect; nor does it afford a party the opportunity to place evidence before the jury that should have been brought out on direct examination” [People v Melendez, 55 NY2d 445, 452 (1982); see People Massie, 2 NY3d 179, 183-84 (2004)]. * * * Thus, even if a misleading impression had been created on cross-examination of the law enforcement witness, the court erred in permitting the People to supplement their direct case with the additional testimony of four witnesses regarding the prior shooting … inasmuch as such evidence far exceeded that necessary to confirm for the jury that the projectile holes on the driver’s side of the Trailblazer predated the charged shooting….” Error further compounded “by the absence of any pretrial notice of the People’s intent to offer evidence of an uncharged crime or a Ventimiglia ruling on the admissibility of such evidence” and “cannot be deemed harmless inasmuch as the proof of defendant’s guilt is not overwhelming.”
  • Although the issue was not preserved for review, the Fourth Department found that the prosecutor improperly cross-examined two of the People’s own witnesses by using prior statements not to refresh their recollection but to impeach their testimony. The court held, “’[i]f the trial testimony of a witness contradicts a prior sworn statement, but does not affirmatively damage the case of the party calling him [or her], the recollection of the witness may be refreshed with the prior inconsistent statement, but only in such a manner that does not disclose the contents of the statement to the jury’ [citations omitted]. Here, the prosecutor was on notice that these two witnesses would testify as they ultimately did, and therefore, “assumed the risk of the adverse testimony by ‘calling the witness[es] . . . in the face of the forewarning’ [People v Fitzpatrick, 40 NY2d 44, 52 (1976)]. Further, at the time of the relevant questioning, the court had not granted the prosecutor permission to treat either witness as hostile [citation omitted]. Thus, the prosecutor improperly ‘use[d the] prior statement[s] for the purpose of refreshing the recollection of the witness[es] in a manner that disclose[d]their contents to the trier of the facts” (CPL 60.35 [3]).’”

People v Salone (Jeffrey), 2020 NY Slip Op 06903 (11/20/20) – Defendant’s manslaughter in the first degree conviction reversed due to the cumulative effect of evidentiary errors and a new trial ordered. The court found that the trial court erred by allowing the investigator to offer his opinion that a homicide was committed, thereby usurping the function of the jury. The trial court also permitted the victim’s mother to testify to irrelevant and immaterial personal background information about the victim. The court found that these errors deprived the defendant of a fair trial.

People v Jackson (Tamiya), 2020 NY Slip Op 07744 (12/23/20) –Court rejected argument that the People violated the best evidence rule by introducing testimony of the contents of an unpreserved videotape. “[T]he People met their heavy burden of establishing that the testimony in question comes within the relevant exception to the best evidence rule and, thus, that the court did not err in admitting that testimony. There is no dispute that the original, unaltered video surveillance footage of the incident would have been the best evidence for the jury to consider. However, the absence of the unpreserved footage was sufficiently explained by the People in their pretrial motion papers, and a proper foundation with respect to the loss of that footage was laid at trial through the APT leader’s testimony.” After describing that testimony, the court ruled that “the People met their burden of establishing that the APT leader’s testimony regarding the unpreserved footage was a reliable and accurate portrayal of the contents of that footage [see generally Schozer v William Penn Life Ins Co of NY, 84 NY2d 639, 645-646 (1994)].”

People v Scott (Damon), 2020 NY Slip Op 07771 (12/23/20) –Trial court allowed a store clerk to testify that a deliveryman had told him that an individual had thrown a gun into a parking lot trash can. Fourth Dept. agreed that “the statement was admitted in error inasmuch as it did not show the clerk’s state of mind and, in any event, the clerk’s ‘state of mind was irrelevant to any issue developed at trial, and the People had no need to establish a foundation for the testimony concerning [his] subsequent actions’ (People v Barrieau, 229 AD2d 664, 665 [3d Dept 1996]).” But it declined to order a new trial because it deemed the error harmless.

People v Scott (Marlon), 2020 NY Slip Op 07746 (12/23/2020) – Court rejected defendant’s contention that the trial court abused its discretion in its Molineux ruling, allowing the victim to testify that the defendant asked him to participate in a cell phone distribution scheme. “The victim’s testimony did not ‘implicate defendant in the commission of any uncharged crime and thus it did not constitute Molineux evidence’ (People v Coppeta, 125 AD3d 1304, 1304 [4th Dept 2015], lv denied 25 NY3d 1071 [2015]). Further, the victim’s testimony about the cell phone scheme was relevant as necessary background material, which completed the narrative of the episode and allowed the jury to understand the case in context [citations and internal punctuation omitted].”
Nor was defendant denied effective assistance of counsel because his attorney failed to object when victim testified about his injuries despite a stipulation entered into by the parties that the victim had sustained a physical injury. Court found that the testimony could be relevant to defendant’s intent.


3rd Dept

People v. Burns (Thomas), 2020 NY Slip Op 06977 (11/25/20) – No prosecutorial misconduct where the prosecutor inquired about defendant’s religious beliefs and implied that he had been a bad parent. Defendant had not objected to this at trial and, in any event, the questions were asked in response to issues raised during defendant’s direct examination, thereby opening the door to questions on these issues. Although it was inappropriate for the prosecutor to remark that defendant was represented by assigned counsel, defense counsel promptly objected, and the trial court sustained the objection and gave an immediate appropriate limiting instruction, thereby miminizing any potential prejudice.

4th Dept

People v Smith (Isaiah), 2020 NY Slip Op 05643 (10/9/20) – Court found that the defendant’s contention that the prosecutor impermissibly questioned the defendant’s pretrial silence was not preserved for review, but observed, “Although as a general rule a prosecutor may not use a defendant’s pretrial silence to impeach his or her trial testimony, that general rule is inapplicable where, as here, a defendant speaks to the police and omits exculpatory information which he or she presents for the first time at trial” (People v Harris, 57 AD3d 1523, 1524 [4th Dept 2008], lv denied 12 NY3d 817 [2009] [internal punctuation omitted]; see generally People v Savage, 50 NY2d 673, 680-682 [1980], cert denied 449 US 1016 [1980]).”

People v Scott (Marlon), 2020 NY Slip Op 07746 (12/23/2020) – Trial court’s Sandoval ruling allowing cross-examination into 2008 robbery conviction was not improper. “Under the circumstances of this case, the jury could have considered [that prior conviction] as a manifestation of defendant’s willingness to place his own interests above that of the community” (People v Taylor, 140 AD3d 1738, 1739 [4th Dept 2016]).” Fact that trial court “did not provide a detailed recitation of its underlying reasoning” was not a fatal flaw, “particularly where, as here, ‘the basis of the court’s decision may be inferred from the parties’ arguments’ [People v Walker, 83 NY2d 455, 459 (1994)].”

“We also reject defendant’s claim that the court’s admission of the prior conviction improperly deterred him from testifying in support of his justification defense. Defendant was not ‘the only available source of material testimony in support of his defense’ and the absence of his testimony did not deprive the jury of ‘significant material evidence’ inasmuch as defendant’s girlfriend, who was a passenger in defendant’s vehicle when the incident occurred, was able to provide eyewitness testimony regarding the incident” [case citations omitted].”


2nd Dept

People v Ortiz (Miguel), 2020 NY Slip Op 07226 (12/02/20) – Court affirmed the conviction for sexual conduct against a child in the first degree and endangering the welfare of a child on ground that prosecutor’s comments during opening and summation that were “inflammatory and an improper denigration of the defendant’s trial strategy” were harmless error where the evidence of defendant’s guilt was overwhelming and there was no significant probability that the error contributed to defendant’s conviction. But it specifically cautioned:

“‘[S]ummation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command,’ but rather, ‘[t]here are certain well-defined limits’ (People v Ashwal, 39 NY2d 105, 109). Counsel is to ‘stay within the four corners of the evidence’ and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” (People v Bartolomeo, 126 AD2d 375, 390, quoting Ashwal, 39 NY2d at 109).

People v Green-Faulkner (Tony), 2020 NY Slip Op 07395 (12/09/20) – Conviction for two counts each of sexual conduct against a child in the first degree and endangering the welfare of a child affirmed because unobjected-to comments in prosecutor’s summation, although improper, did not deprive defendant of a fair trial and were harmless in light of overwhelming evidence of defendant’s guilt. The improper remarks included “informing the jury that one of the young victims would not have a fear of being taken away from her home unless the defendant had threatened her, and that the victim testified that the defendant told her that if she reported the abuse she would be taken away from her home. The prosecutor’s remarks were not based on trial evidence nor reasonable inferences drawn from the evidence (see People v Bethea, 159 AD3d 710, 712; People v Dixon, 184 AD3d 854, 854).”

4th Dept

People v Smith (Isaiah), 2020 NY Slip Op 05643 (10/9/20) – Court declined to order a new trial where prosecutor played a surveillance videotape during summation and commented on what was depicted. “The videos were admitted in evidence and, although they were not played for any witness during the trial, the prosecutor’s comments during summation were based on matters in evidence or were ‘fairly inferrable’ from the testimony as well as the videos themselves (People v Ashwal, 39 NY2d 105, 110 [1976]; additional citation omitted).”

Conflict of Interest-Appearance of Impropriety

3rd Dept

Matter of Czajka (as Columbia County District Attorney) v. Koweek (as County Judge of Columbia County), 2020 NY Slip Op 07009 (11/25/20) – Disqualification of the District Attorney and appointment of a Special Prosecutor was not required under the following circumstances:

In 2019, a criminal defendant was charged in an 18 count indictment; some crimes charged occurred in 2007 and 2008. The defendant sought to disqualify the District Attorney because while previously carrying out his duties as a Family Court Judge the District Attorney had presided over proceedings involving the defendant and the victim. Also in his previous role as Family Court Judge, the District Attorney had committed the defendant to jail for violating an Order of Protection issued in favor of the victim and others.

Judiciary Law § 17 did not require disqualification of the District Attorney because the underlying criminal action was not before the District Attorney in his former judicial capacity. The matters litigated previously in Family Court were not related to the matters charged in the indictment. Nor did County Law § 701 require the DA’s disqualification since there was no showing on the record of actual prejudice or a substantial risk of abuse of confidence.


1st Dept

People v Baez (Edwin), 2020 NY Slip Op 06025 (10/22/20) – “Defendant’s challenge to the prosecutor’s reading of the victim’s statement at the sentencing proceeding is unpreserved…, and we decline to review it in the interest of justice. As an alternative holding, we find that the court providently exercised its discretion in permitting the statement to be read (see People v Warren, 100 AD3d 1399, 1402 [4th Dept 2012]), and there was no violation of CPL 380.50(2)(f).”

3rd Dept

People v. Butler (Arthur), 2020 NY Slip Op (11/12/20) –Appellate Division found that prosecutor did not breach the term of the plea agreement. During negotiations, prosecutor agreed to accept a plea to a lesser charge and recommend a determinate sentence of 3½ years’ imprisonment, which was six months less than the authorized maximum. Although the County Court Judge agreed to accept the guilty plea to the lesser charge, he told the parties that he would impose a determinate, 4-year term with 2 years’ post release supervision. Defendant understood the terms of the plea agreement which were set forth on the record during the plea proceeding. Once the County Court told the parties that it would impose the 4-year sentence and defendant entered the guilty plea knowing that, the guilty plea was knowingly, voluntarily and intelligently entered.

Disciplinary & Other Proceedings/Sanctions

Matter of Kurtzrock (Glenn), 2020 NY Slip Op 08114 (2d Dept 12/30/20) – Former prosecutor suspended from the practice of law for 2 years because, having largely “delegated responsibility for compliance with Brady to the police,” he admittedly had not disclosed numerous items of Brady and Rosario material to defense counsel in a murder-robbery prosecution. Items favorable to the defense included appreciable evidence implicating another man as the person responsible for the fatal shooting & information that sorely undermined the credibility of the People’s 2 chief witnesses, one of whom was the defendant’s ex-girlfriend.

“In considering the appropriate discipline to impose, we find that a substantial factor in aggravation is that the respondent’s misconduct occurred in his capacity as a prosecutor, a public officer. Prosecutors, in their role as advocates and public officers, are charged with seeing that justice is done—to act impartially, to have fair dealing with the accused, to be candid with the courts, and to safeguard the rights of all [see People v Thompson, 22 NY3d 687, 697 (2014); People v Santorelli, 95 NY2d 412, 420-421 (2000); People v Adams, 21 NY2d 397, 402 (1968); People v Fielding, 158 NY 542, 547 (1899); Matter of Sedore v Epstein, 56 AD3d 60, 66 (2d Dept 2008)]. A prosecutor is in a ‘peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer’ [Berger v United States, 295 US 78, 88 (1935)]. Inherent in the duty as a prosecutor is the duty to turn over exculpatory and impeaching material to defense counsel [see People v Colon, 13 NY3d 343, 349 (2009)]. Brady violations are ‘antithetical to the unique role of a prosecutor in our criminal justice system’ [People v Waters, 35 Misc 3d 855, 858 (Sup Ct, Bronx County 2012)]. The respondent was a seasoned prosecutor with extensive experience. His conduct in relation to the Booker case merits the strongest possible condemnation because his actions deprived the defendant of a fair trial and also deprived the victim’s family of a determination as to whether the defendant was responsible for the homicide and, if so, the imposition of a just sentence.”
The Appellate Division court also gave “weight to the extensive evidence in mitigation, credited by the Special Referee.” Inter alia, there were no showings of “intentionally malicious or venal conduct” or “that [the attorney] engaged in any similar conduct in any other cases;” he “accepted responsibility and demonstrated remorse;” he had no prior disciplinary record, and “presented substantial, credible evidence of his reputation and good character.”

Matter of Freeman (Robert), 2020 NY Slip Op 06441 (3rd Dept 11/12/20) – Respondent attorney had been terminated from his longtime position as Executive Director of the New York State Committee on Open Government as the result of an investigation by the Office of Inspector General relating to his sexually inappropriate conduct with female colleagues and others. This also resulted in an investigation by the Attorney Grievance Committee for the Third Judicial Department. During that investigation, the attorney applied to resign, stating in an affidavit that he could not successfully defend against the allegations. The Third Department accepted the resignation and ordered his disbarment.

News From Around the US

Congress amends Federal Rules of Criminal Procedure to require a Brady order
The Due Process Protections Act (Public Law 116-182), which passed both houses of Congress with overwhelming bi-partisan support, was signed by the President in October. The Act amended Rule 5 of the Federal Rules of Criminal Procedure to require

“In all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present, the judge shall issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law.”

The Circuit Judicial Councils are expected to promulgate the particular form of the order to be used by their District Courts.

A relatively inexperienced prosecutor agreed to accept a public Reprimand, with a 1-year term of professional probation, on the grounds that he negligently

  1. failed to disclose that a breathalyzer test of the complaining witness, performed upon the CW’s arrival at the County Attorney’s Office on the morning he took the stand, resulted in a BAC reading of .226%, and
  2. did not correct the CW’s denials on cross-examination that he had consumed any alcohol in the past 24 hours.

Among the agreed-upon facts: the prosecutor had spoken with his supervisor about whether to put the CW on the stand, but the witness’s competency to testify was the focus, and he was not alerted to the Brady implication; even after being confronted with the BAC result, the CW was steadfast in his representation to the prosecutor that he had not had anything to drink that day, and the prosecutor “did not recognize that NJ’s statement about not drinking that day did not necessarily mean NJ had not consumed alcohol in the last 24 hours.”

The jury convicted the defendant of misdemeanor assault. That conviction was vacated, and the charge dismissed with prejudice, a week later, in November 2019. The trial judge concluded that there was “a reasonable probability, had the information been disclosed to the defense, the result [of the trial] would have been different” since this was a case where justification was the defense.

In reversing arson and attempted murder convictions, the Kentucky Supreme Court addressed a number of issues, but concluded it need not decide whether certain judicial rulings were harmless error because the “flagrant prosecutorial misconduct” alone warranted a new trial. Brafman v Commonwealth, official citation not yet available (KY Sup Ct 12/15/20). The defendant, who had a history of mental illness, was charged with setting fire to her neighbors’ trailer while they were home with four of their children. At the 2018 trial, she testified that she remembered nothing about the arson: for the 5 days before the crime, she had been drinking whiskey, ingesting meth and ecstasy because she was distraught over the losses of a romantic relationship and custody of her child. In his closing argument, the Commonwealth Attorney pointed out that “not one single witness testified to you that she appeared under the influence, intoxicated, drugged or anything.” He also successfully opposed the defense request for a jury charge on the intoxication defense. But the prosecutor was fully aware that the lead detective deemed the defendant to be “meth’d out of her mind” when he interviewed her at the scene. A happenstance recording of a conversation between the prosecutor and the detective, after he left the stand, made clear, the Supreme Court found, that the two men purposefully sought “to avoid mentioning Brafman’s intoxication.”