Ethics Watch 3rd Quarter 2024

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Code of Conduct

3rd Quarter 2024 Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

2nd Dept

People v Wells, 2024 NY Slip Op 04082 (2nd Dept 7/31/24) – Defendant’s CPL 440.10 motion to vacate his 1996 murder conviction properly denied without a hearing. No reasonable possibility that the outcome of the trial was affected by the People’s failure to disclose certain police reports (see People v Fuentes, 12 NY3d 259). Defendant’s claim of misrepresentation or fraud by the ADA for failing to correct purportedly false and misleading testimony was also denied because there is no reasonable possibility that any such correction by the prosecutor would have changed the jury’s verdict.

4th Department

People v Lorenzo, 2024 NY Slip Op 04681 (4th Dept. 9/27/2024) – Affirmed County Court’s vacatur of 1994 murder conviction. Post-conviction DNA testing of murder weapons and scene evidence in a stabbing/strangulation case excluded the defendants. Additionally, hearing revealed that prosecution failed to disclose notes of the ADA wherein victim’s husband gave contradictory statements as to his recognition of an antique coin that was found in the possession of the defendant. Trial court did not abuse its discretion in determining that the newly discovered DNA evidence would probably change the result if a new trial were granted or that there existed a reasonable probability that the verdict would have been more favorable to defendants had the DNA evidence been admitted at trial. Additionally, the coin was a key piece of evidence at trial and the withholding of the ADA’s notes constituted a Brady violation

Voir Dire & Juror Issues

4th Department

People v Bean, 2024 NY Slip Op 03960 (4th Dept 7/26/2024) – Trial court did not err in denying Batson challenge from defense without requiring the People to provide a race-neutral reason under Prong 2. In the absence of a pattern of discriminatory strikes, the defendant must demonstrate that ” ‘members of the cognizable group were excluded while others with the same relevant characteristics were not’ or that the People excluded members of the cognizable group ‘who, because of their background and experience, might otherwise be expected to be favorably disposed to the prosecution”‘ [internal punctuation and citations omitted]. Here, the defense “merely pointed out that the prosecutor had challenged two Black prospective jurors in the same panel,” which did not satisfy its initial burden.

Opening

4th Dept

People v Everson, 2024 NY Slip Op 04013 (4th Dep. 7/26/2024) – Murder trial in which evidence of gang affiliation was presented. Defendant not denied a fair trial “by prosecutorial misconduct, including the prosecutor’s references to the musical West Side Story in her opening statement and the quality of the police investigation in her summation.” The challenged comments were not so egregious as to deprive defendant of a fair trial and, further, “the court alleviated any prejudice … by instructing the jury that the comments and summations of the prosecutor and defense counsel do not constitute evidence.”

Direct

2nd Dept

People v Nasyrova, 2024 NY Slip Op 04401 (2nd Dept 9/11/24) – Defendant convicted of attempted murder, etc, for serving the victim poisoned cheesecake. Testimony about prior “incidents” (not further described by the 2nd Dept) properly admitted (1) as evidence of the defendant’s motive and provided necessary background information, and (2) to prove the defendant’s identity as the person who committed the crimes. Additionally the trial court gave proper limiting instructions as to the use of this evidence.

3rd Dept

People v McNealy (Rayvon) 2024 NY Slip Op 04230(8/15/24) – Over objection, the prosecution was permitted to elicit testimony from a sex abuse victim that every time her mother left the house, the defendant abused her. The victim’s mother testified that the victim took her to a room where the abuse occurred and told her that defendant would pick her up, place her on the bed and breathe real hard. While the prompt outcry exception to the hearsay rule allows for evidence of a complaint being made, it does not permit evidence of the accompanying details. Here, the mother’s testimony was permissible because it was not so detailed as to deprive defendant of a fair trial.

People v Pica-Torres (Wilfredo), 2024 NY Slip Op 04163 (8/8/24) – Permissible for People to adduce evidence that defendant was incarcerated from December 22, 2018, to February 6, 2019, 3 days before the crimes at issue were committed. Having eventually stipulated to this Molineux evidence, defendant waived any objection to its admission. In any event, the evidence was limited in scope, not unduly prejudicial, and necessary to complete the narrative of why defendant’s barrage of threatening messages suddenly ceased during this time period and then promptly resumed after his release. Additionally, the trial court twice gave limiting instructions to the jury.

People v Morgan (Arthur), 2024 NY Slip Op 04165 (8/8/2024) – Before defendant’s first trial, the court ruled that four witnesses could present Molineux evidence. One was not available, however, and did not testify at the first trial. All four were permitted to testify at the second trial that followed the 3rd Department’s reversal of the original conviction. County Court appropriately weighed the probative value of this additional prior incidents of domestic violence against its prejudicial impact to defendant considering the relevance of prior incidents of domestic violence. And although the court erred in not giving limiting instructions in conjunction with the witnesses’ testimony, it did give appropriate limiting instruction in its final charge.

Summation

2nd Dept

People v Bradshaw 2024 NY Slip Op 03761 (2nd Dept 7/10/2024) – Rejects argument that prosecutor violated defendant’s right to a fair trial (during Covid protocols) when the prosecutor told the jury, during summation, that it may send a note asking the County Court to direct the defendant to remove his mask to show his face. Prosecutor’s summation remark was responsive to defense counsel’s summation comments.

Conflict of Interest/Appearance of Impropriety

Judicial Ethics Opinions

  • Where a judge concludes that there is a substantial likelihood that an attorney made racist and sexist remarks in connection with a matter before the judge, the judge must take appropriate action. Opinion 24-73 (Posted on July 22, 2024)
  • When justices of a town court have reported an assistant public defender to the attorney grievance committee:
(1) The justice must disqualify in all cases where the reported attorney personally appears.(2) With respect to pending cases where the reported attorney had previously appeared on behalf of a defendant in the town court, the judges must also disqualify, even if such cases may be reassigned to another assistant public defender. (3) Where the reported attorney previously represented a defendant solely in the centralized arraignment part before another local judge and a different assistant public defender appears before the town court for post-arraignment proceedings, the judges are not disqualified based on the reported attorney’s prior involvement unless it becomes necessary to revisit some aspect of the arraignment. Opinion 19-154 is modified to reflect this opinion. (4) These obligations last during the pendency of the disciplinary complaint and for two years thereafter, and remittal is not permitted. Opinion 24-83 (Posted on July 22, 2024)
  • A judge who was a supervising assistant district attorney while the district attorney’s office investigated allegations of professional misconduct by an attorney colleague, but who was not involved in investigating or referring the attorney for discipline, is not disqualified from matters in which the attorney appears unless the judge believes he/she cannot be fair and impartial in those cases. Opinion 24-52 (posted on July 1, 2024).

Disciplinary & Other Proceedings/Sanctions

Court of Appeals suspends Supreme Court Justice
Oneida County Supreme Court Justice Erin Gall has been suspended, with pay, pending the Court’s review of the July 17 determination of the State Commission on Judicial Conduct. Matter of Gall, 2024 NY Slip Op 04049 (7/31/2024).

The Commission has recommended that Justice Gall be removed from the bench because of her conduct, which was live streamed on social media, during a street melee and response by police officers to a high school graduation party attended by dozens of individuals. The Commission found she engaged in a racially offensive, profane, prolonged public diatribe; repeatedly invoked her judicial office; threatened gun violence; and both criticized and pledged favored treatment for the police. Matter of Gall (State Commn. on Jud. Conduct)

Giuliani disbarred in NY
The First Department found “nothing on the record before us that would permit the conclusion that respondent lacked knowledge of the falsehood of the numerous statements that he made, and that he had a good faith basis to believe them to be true.” Moreover, he “went as far as to attempt to deceive this tribunal by his numerous inconsistent statements before the Referee and the [Attorney Grievance Committee.].” Matter of Giuliani, 2024 NY Slip Op 03561 (1st Dept 7/2/24).

Interim suspension ordered for failure to cooperate with disciplinary investigation
Attorney’s failures to respond to repeated inquiries and demands made in course of investigation warranted interim suspension as per 22 NYCRR § 1240.9. Matter of Gard, 2024 NY Slip Op 03560 (1st Dept 7/2/24).

False 18-B vouchers
18-B attorney suspended for six months after pleading guilty to submitting payment claim vouchers to assigned counsel programs with the intent to defraud the assigned counsel programs. Matter of Guarino, 2024 NY Slip Op 03666 (4th Dept 7/3/2024).

Reciprocal discipline imposed after CT reprimanded attorney
Attorney’s daughter was a DV victim whom he believed was treated shabbily because she was not permitted to address the court before it adjourned the case in contemplation of defendant completing a diversion program, which would result in dismissal of the criminal case. The lawyer (a CT criminal defense attorney) filed a complaint with Connecticut’s Judicial Review Council, falsely alleging that the judge had prevented the daughter from speaking at sentencing, as was her right. The lawyer’s misrepresentation of the proceeding as a sentencing proceeding and his disparagement of the judge in subsequent, intemperate letters resulted in a reprimand by CT’s disciplinary authority. The First Department concluded that censure was appropriate as a reciprocal sanction under Judiciary Law § 90(2) and 22 NYCRR 1240.13. Matter of Parker, 2024 NY Slip Op 03867 (1st Dept 7/18/24).

Grievance complainants get access to hearings and documents
Complainants in attorney discipline cases initiated in Second Department have First Amendment right to attend hearings related to their cases, view documents necessary to understand proceedings, and see some final dispositions. Exception to rule for dispositions made by the chief attorney, who investigates cases before a grievance committee reviews them. Committee isn’t bound to the chief attorney’s recommendations, and they don’t need to be public to allow investigations to remain flexible and to protect attorneys from unsubstantiated accusations. Civil Rights Corps v Lasalle, SDNY 21 Civ. 9128 (VM): Decision & Order and Judgment, both dated July 22, 2024.

Miscellaneous

Second Circuit Court of Appeals

Non-prosecution agreement with one US Attorney’s Office does not bar prosecution by US Attorney’s Office in the 2d Circuit

  • Jeffrey Epstein’s 2007 non-prosecution agreement with the US Attorney’s Office for the Southern District of Florida extended to “any potential co-conspirators of Epstein, including but not limited to….” On her appeal from the June 29, 2022 judgment of conviction in the SDNY, Ghislaine Maxwell contended, inter alia, that the 2007 NPA immunized her from prosecution by the US Attorney’s Office for the SDNY. Although the Circuit Courts are split on the issue, the Second Circuit has long held that such “[a] plea agreement binds only the office of the United States Attorney for the district in which the plea is entered,” unless the NPA affirmatively demonstrates it was intended to bind other districts. There was nothing in the text of this NPA, “or its negotiation history [that] suggests that the NPA precluded USAO-SDNY from prosecuting Maxwell for the charges in the Indictment.” United States v Maxwell, citation not yet available (2d Cir 9/17/24).

AI Use

ABA Opinion on AI -7/29/2024

  • ABA Formal Opinion 512
    • To ensure clients are protected, lawyers using generative artificial intelligence tools must fully consider their applicable ethical obligations, including their duties to provide competent legal representation, to protect client information, to communicate with clients, to supervise their employees and agents, to advance only meritorious claims and contentions, to ensure candor toward the tribunal, and to charge reasonable fees.

News From Other States

Justice Sotomayor addresses prosecutorial immunity

Colorado

  • Defense moved for dismissal charges because DA made comments to the media characterizing the killing as “absolute brutal savagery” and because she said the teenager was capable of “cold-blooded murder” and seemed to show no remorse for the killing. Trial court rejected these arguments:
“When the district attorney’s office is seeking to treat a juvenile as an adult, it is incumbent on (the DA) to tell the people why,” the Judge said. “…And that is what she did. Her language may have at times been inelegant, but she was letting the people of the city and county of Denver know exactly why — and it’s appropriate for her to do so.”
[1]

Elected DA disbarred due to misconduct, improper public comments on cases, and dereliction of duty

  • failure to supervise the prosecution team and devote sufficient resources, resulting in
  • multiple discovery violations and sanctions, and
  • exclusion of expert witnesses from the case due to the prosecution team’s failure to cure its deficient endorsement for such witnesses, and
  • directing her investigators to investigate the trial judge for domestic abuse in order to conflict him off of the case – no credible evidence to justify an investigation, and it yielded negative results.
Additionally, DA Stanley made improper extrajudicial statements about two defendants criminally charged in the death of a ten-month-old baby. She effectively pronounced that one of the defendants was guilty, revealed inadmissible details about the defendant’s sexually based juvenile offenses, and impugned the motives and character of the defendants. Criminal cases ultimately dismissed due to outrageous governmental conduct.

Illinois Prosecutor admits to regular meth use while on the job

Suspension ordered because of false claims in application-interviews re trial experience

  • The Illinois Supreme Court suspended a former Assistant State’s Attorney for 1 year for making false statements in an application for appointment as a judge & while interviewing with another State’s Attorney’s Office. Except for the 2 years he clerked for a judge, the attorney’s experience was almost entirely appeals and other post-conviction litigation. He simply did not have the wide-ranging, felony trial experience and first-chair responsibilities he claimed when applying for the judgeship and to another State’s Attorney’s Office. Matter of Scott Ian Jacobson, citation not yet available (9/20/24); Underlying Report and Recommendation of the Disciplinary Commission’s Review Board.

New Mexico

  • State of New Mexico v. Alexander Rae Baldwin, no citation available (1st Jud Dist Ct, Santa Fe County, No. D-101-CR-2024-00013 7/31/2024) (Sommer, J.) – High profile trial of actor-defendant Alec Baldwin for the fatal shooting of Halyna Hutchins on the movie set of Rust. The movie set’s armorer had already been tried and convicted on separate charges related to the death as well. Multiple discovery violations involving belated disclosure of materials leading up to Baldwin’s trial. At trial, it was discovered that live ammunition that had a connection to the movie set and arguably matched the fatal live ammunition from the Rust set had been turned in after the armorer’s trial by a “good Samaritan”. Court determined that such evidence was cataloged by the police in a separate file from the Rust case and was suppressed by the prosecution from the defense. Additionally, at a hearing on defendant’s motion to dismiss for Brady violations, the Court determined that the special prosecutor had elicited false testimony from the evidence officer that the turned-in ammunition was clearly different from the ammunition collected from the set. Such evidence was never sent out for lab testing and analysis. Dismissed with prejudice upon defendant’s motion after mid-trial hearing.

Ohio – Road rage

Oregon – criminal defense attorney’s failure to review discovery leads to suspension

  • Local Deputy District Attorney initiated grievance against defense attorney because the office’s case management system showed that the lawyer had not accessed any or all discovery available before his clients in nearly 40 cases pleaded guilty; two former clients also filed grievances. The lawyer has now been suspended by Oregon’s Supreme Court from the practice of law for 2 years. Matter of Munn, 372 Or. 589 (7/25/24).

Pennsylvania

  • Elected DA suspended for 2 years. Criminal case and 2 violation of probation/parole petitions were dismissed with prejudice due to the DA’s admitted neglect, lack of competency and diligence, and conduct prejudicial to the administration of justice in violation of RPC 1.3, 3.2 and 8.4. Misconduct was committed in her capacity as a public prosecutor, it deprived criminal defendants of liberty and due process and, with respect to the three different serious criminal allegations. Office of Disciplinary Counsel v Lesley Rae Childers-Potts, No. 3054 Disciplinary Docket No. 3, No. 25 DB 2024, Attorney Registration No. 92348 (Blair County).