Ethics Watch 3rd Quarter 2020


Professional Conduct Resources

The Right Thing

Code of Conduct

3rd Q 2020 New York State Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

1st Dept

People v White (Shakeem), 2020 NY Slip Op 03729 (7/2/20) – “Although the People’s disclosure of information regarding the victim’s mental illness was belated, defendant is not entitled to reversal under Brady v Maryland (373 US 83 [1963]). The People disclosed the information more than two weeks before the beginning of trial, and under the circumstances of the case this gave defendant a “meaningful opportunity to use the allegedly exculpatory material to cross-examine” (People v Cortijo, 70 NY2d 868, 870 [1987]). The victim was extensively cross-examined about his mental illness and related matters, and defendant’s claims of prejudice are conclusory and speculative. After receiving the information, defense counsel did not request an adjournment to investigate the victim’s psychiatric history, to consult an expert, or for any other purpose. To the extent counsel requested any specific remedies from the court, they were unnecessary or inappropriate. In any event, there is no reasonable possibility that the People’s initial failure to disclose the relevant information contributed to the verdict.”

People v Gonzalez (Rafael), 2020 NY Slip Op 03740 (7/2/20) – “The [trial] court providently exercised its discretion in responding to the People’s belated disclosure of some records relating to the two victims’ injuries by adjourning for four days and allowing recross-examination of the victims, while denying requests for a mistrial or preclusion of certain evidence [see People v Cabrera, 137 AD3d 707, 708 (1st Dept 2016)]. The court reasonably found that the People’s delay in obtaining the records, including some materials concerning shoulder surgery received by one victim, did not result in substantial prejudice, because, among other things, the defense had received other records of the same surgery about two weeks earlier, well before the opening statements. These other records adequately revealed the extent and significance of the victims’ injuries, and we find unpersuasive defendant’s argument that his trial strategy was impacted by the belated disclosure of the records at issue. Moreover, the delay was not caused by bad faith [citation omitted]. In any event, any error was harmless in light of the overwhelming evidence of defendant’s guilt….”

2nd Dept

People v Alisuarez (Jairam), 2020 NY Slip Op 04959 (9/16/20) – No Brady violation where “defense counsel conceded that a description of the perpetrator was turned over ‘a week’ prior to the commencement of the trial, and the defendant did not seek to call the individual who provided the description.” There was “no indication that the People suppressed that evidence or that earlier disclosure might have had any effect on the outcome of the trial.” There was also no indication that the People suppressed a witness’s statement regarding his description of a vehicle or a witness’s cooperation agreement, “and the defendant was afforded a meaningful opportunity to use such evidence at trial” [see People v Tripp, 162 AD3d 691, 692 (2d Dept 2018).

People v Rodriguez (Wildon), 2020 NY Slip Op 05234 (9/30/20) – Vacatur of defendant’s murder 2 conviction without a hearing pursuant to CPL 440.10 affirmed where the defendant was not provided with Brady material regarding the Cort, the sole eyewitness’s, participation as a witness in two unrelated homicide trials, and prior agreements between Cort and law enforcement, including her use as a confidential informant by police placement in a witness relocation program following her participation in one of the unrelated homicide trials – during which her rent was paid by the DA’s Office for approximately one year.

This material contradicted the witness’s trial testimony that she did not have any “deals” with law enforcement and had not been in touch with the District Attorney’s Office “for a long period of time,” as well as the prosecutor’s arguments during summation that Cort “never took a deal” and “never asked for anything in return.” Significantly, Cort’s credibility was critical as she was the People’s only witness to testify that it was the defendant who shot the victim, and there was no other trial evidence directly linking the defendant to the crime (see People v Johnson, 107 AD3d 1161, 1165; People v Frantz, 57 AD3d 692, 692-694). Under these circumstances, in the context of the entire trial, Cort’s involvement with law enforcement “was both favorable and material to the defense, and the People’s failure to disclose this information to the defense violated defendant’s constitutional right to due process” (People v Wright, 86 NY2d 591, 598). In addition, the errors were compounded by the prosecution’s repetition and emphasis on the misinformation during summation (see People v Colon, 13 NY3d 343, 349).

3rd Dept

People v Pizarro (Jesus), 2020 NY Slip Op 03695 (7/2/20) – Defendant argued that his guilty plea conviction should be reversed because the prosecution failed to timely deliver Brady material. Two weeks before defendant pleaded guilty to a reduced charge in satisfaction of a 5-count indictment, the prosecutor had advised the defense that a number of items had been sent to the NYS Forensic Investigation Center [Center] for analysis and that the People would provide copies of any results of analysis to the defense upon receipt. Five days after the guilty plea was entered, the prosecution provided the defense with a report from the Center concerning DNA analysis from palm prints found inside a window of the burglary victim’s residence. There was a mixture profile on the inside of the window frame containing the DNA of the victim and that of an unknown male palm print with the defendant excluded as a donor. No DNA profile was obtained from the print on the exterior of the window. Since the claimed Brady violation was not raised in the County Court, it was unpreserved. Moreover, the Appellate Division found, the analysis from the interior of the window frame did not “’directly or expressly provide evidence favorable to defendant by negating or placing in doubt his criminal acts’” to provide a basis for withdrawing the voluntarily entered guilty plea. Defendant also argued that the discovery provisions of CPL Article 245 (effective January 1, 2020) should be applied retroactively to his 2018 judgment of conviction. The Appellate Division did not reach that issue because defendant knew of the pending report from the Center when he entered the guilty plea and “we cannot conclude that the alleged violation . . . materially affected defendant’s decision to plead guilty.”

Grand Jury

3rd Dept

People v Hightower(Aaron), 2020 NY Slip Op 04513 (8/13/20) –Defendant, observed by police driving outside his lane in Warren County, was pursued and stopped by State trooper in Saratoga County; subsequently, defendant was found to be in possession of marijuana and cocaine. At the Warren County Grand Jury presentment, the trooper testified that he stopped defendant within 500 yards of Warren County, but testified at the suppression hearing “that this was not the case.” The App. Div. found that the defense motion to dismiss the indictment, on the ground the grand jury “was “misled with respect to geographical jurisdiction,” was properly denied. In the grand jury and at the suppression hearing, the trooper testified that he observed defendant throw a lit cigarette out the driver’s side window (a VTL violation) and followed him. While in transit, defendant was the sole occupant of the vehicle and did not stop the vehicle until stopped by the trooper. The prosecution instructed the grand jury on multiple theories which would provide a basis for Warren County jurisdiction. Although the App. Div. recognized that the officer made a mistake during his grand jury testimony, it concluded that defendant did not establish that this was “prosecutorial wrongdoing or fraudulent conduct.”

Voir Dire

4th Dept

People v Cobb (Jaquan), 2020 NY Slip Op 04055 (7/17/20) – Conviction reversed as County Court erred in denying defendant’s challenge for cause to juror who stated that her friendship with a prosecution witness may affect her ability to be fair and impartial. The court held, “It is well established that ‘prospective jurors who give some indication of bias but do not provide an unequivocal assurance of impartiality must be excused for cause’ ” (People v Hernandez, 174 AD3d 1352, 1353 [4th Dept 2019], quoting People v Nicholas, 98 NY2d 749, 750 [2002] [other citations omitted]). Here, the prospective juror gave “some indication of bias” (Nicholas, 98 NY2d at 750) by stating that her friendship with a prosecution witness “might” “affect [her] ability to be fair and impartial in this case” and that serving as a juror “might be awkward” in light of that friendship (see People v Malloy, 137 AD3d 1304, 1305 [2d Dept 2016] [other citations omitted]).” In light of the fact that defendant used a peremptory challenge to excuse this juror and subsequently exhausted his peremptory challenges, the conviction was reversed and a new trial ordered. See CPL § 270.20 (2).

People v Jackson (Charles), 2020 NY Slip Op 04089 (7/17/20) – Court rejected defendant’s challenge to trial court’s Batson ruling. “The [trial] court properly determined that the prosecutor’s explanation that the prospective juror in question ‘is a pastor’ is a race-neutral reason for using a peremptory challenge to strike that prospective juror [citations omitted].”

People v Bridges (Jaquey), 2020 NY Slip Op. 04047, (7/17/20) – Trial court correctly denied defendant’s Batson challenge. The People were required to give a race neutral reason for their challenge. The fact that they were factually incorrect does not invalidate the strike. The prosecutor challenged the juror because she claimed that he failed to disclose a history of prior arrests or convictions and that he was previously prosecuted by her office. In fact, he had disclosed this information. The App. Div. held, “To satisfy its step two burden, the nonmovant need not offer a persuasive or even a plausible explanation but may offer ‘any facially neutral reason for the challenge—even if that reason is ill-founded—so long as the reason does not violate equal protection’ (People v Smouse, 160 AD3d 1353, 1355 [4th Dept 2018]).”

Direct

1st Dept

People v Goodman (Keith), 2020 NY Slip Op 03730 (7/2/20) – At trial of indictment charging defendant with, e.g., attempted murder and conspiracy offenses, “[t]he court providently exercised its discretion in admitting an uncharged threat made by defendant to a rival gang member. This was highly probative of the charged crimes. A song posted on social media whose lyrics contained co-conspirator declarations was also relevant to the conspiracy.”

People v Wilson (Marcus), 2020 NY Slip Op 05151 (9/29/20) – People’s direct case properly included (a) testimony that defendant was in possession of a starter pistol after the robbery, and (b) a surveillance video. “There was ample evidence in the record that the starter pistol resembled or was similar to the weapon displayed in the robbery,” and because it was relevant to establish defendant’s identity as one of the robbers, probative value of testimony outweighed any prejudicial impact. Testimony of police sergeant, who worked in the unit that operates-maintains the surveillance system, provided sufficient authentication for the video’s receipt into evidence. See People v Patterson, 93 NY2d 80, 84 (1999).

3rd Dept

People v. Hilton (Xavier) 2020 NY Slip OP 03823 (7/9/20) — On direct examination of a police officer, the prosecutor asked whether, prior to the day in question, he knew who the defendant was. The officer answered “yes.” The Appellate Division ruled that the question itself was not prejudicial and the officer’s response did not indicate his prior familiarity with the defendant was in a criminal context. Also, the trial court alleviated any prejudice by striking the question and answer and instructing the jury that they were not to be considered as evidence.

People v. Callahan (Casey), 2020 NY Slip OP 04618 (8/20/20) – At trial of a defendant-husband for the intentional murder of his wife, the People were permitted to offer proof of instances of verbal and emotional abuse by the defendant toward his wife/victim. During the trial, the prosecution also elicited evidence from the wife’s niece that the victim told her that on one occasion, defendant had grabbed the victim by the arm in a store because he did not like the person to whom she was speaking. The niece also testified that the victim told her that defendant had caused bruises on her legs, and she herself had once seen defendant kick his victim/wife in the stomach. The Third Department reversed the murder conviction because the niece’s testimony concerning prior physical abuse (some of which was hearsay), exceeded the scope of the trial court’s Molineux ruling and deprived the defendant of a fair trial.

4th Dept

People v Schilling (Charles), 2020 NY Slip Op. 04056 (7/17/20) – “We reject defendant’s contention that evidence was admitted in violation of People v Molineux (168 NY 264 [1901]). The victim’s testimony concerning defendant’s prior conduct and the photographs depicting the injuries that she sustained during the November 16 incident were relevant to establish that, when defendant entered the home on November 26, he “inten[ded] to commit a crime therein” (Penal Law § 140.25; see generally People v Alvino, 71 NY2d 233, 241-242 [1987]).”

People v Murray (Terrell), 2020 NY Slip Op. 04255 (7/24/20) – In a prosecution involving insurance fraud, the App. Div. held, “evidence of defendant’s prior misrepresentation on the relevant application for insurance was properly admitted in evidence to establish his intent to defraud (see People v Berger, 155 AD2d 951, 951 [4th Dept 1989], lv denied 75 NY2d 917 [1990]).” We conclude that the probative value of that evidence outweighed its potential for prejudice, and ‘the court’s limiting instruction[s] minimized any prejudice to defendant’ (People v Washington, 122 AD3d 1406, 1408 [2014], lv denied 25 NY3d 1173 [2015]; see Berger, 155 AD2d at 951).”

Cross-examination

1st Dept

People v Moore (James), 2020 NY Slip Op 03974 (7/16/20) – “When a defense fact witness testified that defendant was not known to him as someone from whom he could buy drugs, this did not constitute character evidence, because the witness was relaying his personal knowledge of whether defendant sold drugs, and not about defendant’s reputation. Accordingly, the People should not have been permitted to impeach that testimony by asking the witness if he was aware of prior drug sales by defendant. However, we find the error to be harmless [citation omitted], particularly in light of the court’s thorough limiting instructions.”

2nd Dept

People v Cagan (Max), 185 AD3d 836, 2020 NY Slip Op 03923 (7/15/20) – Trial court’s Sandoval compromise was the result of an appropriate balancing of probative value against prejudicial effect where the court allowed the prosecution, if the defendant testified, to cross examine defendant about the underlying facts of two of his ten prior convictions even though those underlying facts bore some similarity to the crimes for which defendant was on trial.

3rd Dept

People v Santiago (Anna), 2020 NY Slip Op 03824 (7/9/20) – During defense counsel’s cross-examination of a prosecution witness, counsel posed questions to which the prosecutor interposed a hearsay objection. When yet another question elicited hearsay from the witness (as to what the defendant had told her), the prosecutor objected, saying: “If she wants to testify, she has an absolute right to do so. She doesn’t get –.” Following an immediate sidebar, the court, with defense counsel’s consent, gave a curative instruction explaining that the prosecutor’s remarks were a challenge to the admissibility of the response under evidentiary rules and that no negative inference was to be drawn against counsel or the defendant. After a recess, the court gave a second curative instruction reminding the jurors that the defendant was presumed innocent, did not have to present evidence and was not required to testify, and that the People had the sole burden of proving defendant’s guilt beyond a reasonable doubt. The App. Div. affirmed the judgment of conviction, finding the trial court’s curative instruction sufficient to eliminate any hint of prejudice to the defendant. Also, the defendant subsequently testified, thereby also mitigating any harm.

People v Harris (Coreen), 2020 NY Slip Op 04431 (8/6/20) – At defendant’s trial for assault and criminal possession of a weapon, the trial court properly exercised its discretion in fashioning a Sandoval compromise, which allowed the prosecution to cross-examine defendant about the fact that he had two prior convictions in Queens County for Class E Felonies and the dates of those convictions. This ruling properly balanced defendant’s right to a fair trial against the prosecution’s right to challenge his credibility.

4th Dept

People v Lewis (Diamond), 2020 NY Slip Op 04276 (7/24/20) – Court rejects defendant’s claim that trial court erred in allowing the People to introduce extrinsic evidence during cross-examination of defendant’s alibi witness, holding, “’the extrinsic evidence was used to challenge the validity of the alibi, a material issue in the case, and was therefore not limited to collateral significance’ (People v Knight, 80 NY2d 845, 847 [1992]; see People v Patterson, 194 AD2d 570, 571-572 [2d Dept 1993], lv denied 82 NY2d 757 [1993]).”

People v Horn (Jacob), 2020 NY Slip Op 04712 (8/20/20) – During his cross-examination of the defendant on trial for murder, the prosecutor showed scenes from an extremely violent movie, which had been referenced on the defendant’s social media two days after the homicide. The purported purpose of the display was to rebut defendant’s claim to police that he had been coerced by his accomplice into participating in the homicide. The scene from the movie The Boondock Saints, contained imagery of a violent tableau that occurs in a courtroom during a trial. The App. Div. agreed with defendant that the trial court abused its discretion in allowing the scene from the film to be played, but the 4-1 majority held that the error was harmless as the evidence against the defendant was overwhelming.

It is important to note, however, that the court stated, “[a]lthough we conclude that reversal is unwarranted on that ground, we take this opportunity to admonish the prosecutor and to remind him that “prosecutors have ‘special responsibilities … to safeguard the integrity of criminal proceedings and fairness in the criminal process’ ” (People v Huntsman, 96 AD3d 1387, 1388 [4th Dept 2012], lv denied 20 NY3d 1099 [2013], quoting People v Santorelli, 95 NY2d 412, 421 [2000]).”

Summation

4th Dept

People v Atkinson (David), 2020 NY Slip Op 04075 (7/17/20) – Defendant alleged on appeal that the prosecutor engaged in impermissible burden shifting during summation. Conviction affirmed. “Although we agree with defendant that the prosecutor should not have said during summation that defendant had to “explain” a certain fact in the case or to “convince” the jury of his defense (see e.g. People v Rupnarine, 140 AD3d 1204, 1205 [3d Dept 2016]; People v Mitchell, 129 AD3d 1319, 1321 [3d Dept 2015], lv denied 26 NY3d 1041 [2015]), we conclude that those isolated improprieties were not so egregious as to deprive defendant of a fair trial, especially considering that the prosecutor and County Court repeatedly made clear to the jury that the burden of proof rested with the People and never shifted to the defense [citations omitted].”

Conflict of Interest-Appearance of Impropriety

4th Dept

People v Mineccia (Domenic), 2020 NY Slip Op 04028 (7/17/20) – Conviction vacated. Trial court’s law clerk previously prosecuted defendant for the instant case while employed as an assistant district attorney. Defendant elected to proceed with a non-jury trial. Although trial court took affirmative action to exclude the law clerk from defendant’s case, the defendant was not informed of the conflict before waiving a jury trial. “Contrary to the motion court’s determination,” the App. Div. found that defendant’s testimony — that he would not have waived his right to a jury trial had he been aware of the fact that his former prosecutor was now serving as the trial court’s law clerk — “was not incredible. Indeed, defendant identified rational, case-specific reasons why he distrusted the fairness of the law clerk. Under the unique circumstances of this case, we conclude that defendant’s waiver of his right to a jury trial, which was made when he was the only participant in the waiver proceeding who was ignorant of the fact that his former prosecutor had become the trial judge’s legal advisor, was not tendered ‘knowingly and understandingly’ and was not ‘based on an intelligent, informed judgment’ (People v Davis, 49 NY2d 114, 119 [1979]; [other citation omitted]).”

Miscellaneous

2nd Dept

People v. Hirji (Areefeen), 185 AD3d 1053, 2020 NY Slip Op 04320 (7/29/20) – Prosecutor did not intimidate a defense witness into declining to testify. Prosecutor merely told the witness that the People would not be calling him at trial because the prosecution had evidence that his grand jury testimony was not truthful. Prosecutor did not emphasize that warning to the point of intimidation, threaten to prosecute the witness for perjury, or in any other fashion interfere with the witness’ free choice to testify.

4th Dept

Matter of Cirito Cordero v District Attorney of Erie County, 2020 NY Slip Op 04078 (7/17/20) – Convicted defendant filed a FOIL request seeking victim’s medical records and two photographs which were in the possession of the District Attorney’s Office. After the District Attorney’s Office denied the request, the defendant brought an Article 78 petition. Supreme Court dismissed the petition. Affirmed. The Court held, “[c]ontrary to petitioner’s contention, the requested materials are exempt from disclosure pursuant to Civil Rights Law § 50-b (1), which provides that “[n]o report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies . . . a victim [of a sex offense defined by Penal Law article 130] shall be made available for public inspection.” This exemption applies regardless of petitioner’s contention that he requires the material to support his application for postconviction relief (see Matter of Fappiano v New York City Police Dept., 95 NY2d 738, 747-748 [2001]; Matter of Crowe v Guccione, 171 AD3d 1170, 1171- 1172 [2d Dept 2019]). Contrary to petitioner’s further contention, because the medical records are exempt from disclosure pursuant to state statute, respondent is “not obligated to provide the records [in redacted form] even though redaction might remove all details which ‘tend to identify the victim’ ” (Karlin, 96 NY2d at 843, citing Civil Rights Law § 50-b [1]; see Matter of Xao He Lu v New York City Police Dept., 143 AD3d 616, 617 [1st Dept 2016]).”

Disciplinary & Other Proceedings/Sanctions

The Supreme Court had dismissed the indictment in 2018, but the Third Department reinstated the indictment after concluding that the AG’s Office did have prosecutorial jurisdiction over both the official misconduct charges (allegations arising out of DA’s grand jury presentment) and the perjury charge (predicated on DA’s testimony before grand jury convened by AG). People v Abelove, 179 AD3d 39 (3rd Dept 2019), lv denied 35 NY3d 1025 (2020).

Additional Ethics Resources and Updates

Don’t Stress The Giglio – A Prosecutor’s Guide To Impeachment Material

User:Tammy.smiley@nassauda.org Tammy J. Smiley, Bureau Chief, Appeals Bureau
W. Thomas Hughes, Assistant District Attorney
Nassau County District Attorney’s Office, Appeals Bureau
Updated Oct 2017

ABA Formal Opinion 493 7/15/2020

ABA Formal Ethics Opinion 493 (7/15/2020) addresses Model Rule 8.4(g) prohibiting harassment and discrimination based upon, inter alia, race, sex, religion, national origin, and sexual orientation

See also: Post from Lawyer Ethics Alert Blog

Judicial Ethics Opinions

Opinion 20-99 – A town or village justice court must not “collaborate” or “work with” the district attorney’s office or the local town/village prosecutor.

  • The court may nonetheless invite defense bar representatives and the appropriate prosecutorial office to discuss procedures for handling mail-in pleas on traffic infractions.
  • The court must not promote or favor mail-in pleas and/or plea bargaining over a defendant motorist’s other options, even if this is intended to mitigate the effects of the COVID-19 outbreak. The court may, however, distribute a court-prepared form (such as UCS DCJA Form 1.0) impartially listing all options for a defendant motorist and include a link to the District Attorney’s website and/or email address as a convenience to defendants.

Opinion 20-97 – A court must not be in the position of advocating a negotiated plea and, thus, must not distribute the District Attorney’s “informational document” to defendant motorists or otherwise implement the DA’s procedure for facilitating defendants’ pleas to lesser charges in Vehicle and Traffic Law matters. The court may, however, distribute a court-prepared form impartially listing all options for a defendant motorist and include a link to the DA’s website as a convenience to defendant motorists.

Standards of Civility amended as of Jan 24, 2020

By Joint Order of the Appellate Division’s four Presiding Justices, the 1997 Standards of Civility were amended as per the recommendations formally approved by the New York State Bar Association in 2019. As before, the Standards — 22 NYCRR Part 1200 (Rules of Professional Conduct), Appendix A — “are not intended as rules to be enforced by sanction or disciplinary action, nor are they intended to supplement or modify the Rules Governing Judicial Conduct, the Rules of Professional Conduct….” Rather, the Standards are aspirational, “a set of guidelines intended to encourage lawyers, judges and court personnel to observe principles of civility and decorum.” From the Preamble.

  • The most substantive change is a new Section 2, Standards for Transactional/Non-Litigation Settings, which “should be read with Section 1 [General Standards] as an integrated whole….” It consists of just 3 paragraphs that declare, inter alia, “Unless the client specifically instructs to the contrary, a lawyer should not impose deadlines that are more onerous than necessary or appropriate to achieve legitimate commercial or other client-related outcomes.” Section 2, ‽1. And lawyers “should be careful not to proceed [to a final agreement or the like] without proper authorization or otherwise imply that authority from the client has been obtained when such is not the case.” Section 2, ‽3.
  • The new amendments to the General Standards enunciated in Section 1 largely reflect simple reorganization of sundry provisions. The new Responding to communication is a synthesis of the predecessor provisions and now includes emails, etc.
“A lawyer should promptly return telephone calls and electronic communications and answer correspondence reasonably requiring a response, as appropriate. (For the avoidance of doubt, the foregoing refers to communications in connection with matters in which the lawyer is engaged, not unsolicited communications). * * * “

Commission on Prosecutorial Conduct – NY

After passing both houses, S. 1190 — a chapter amendment to last year’s bill establishing the Commission on Prosecutorial Conduct (L. 2018, ch. 202) — was delivered to the Governor’s desk on March 15, 2019. DAASNY continued to press its objections to the so-called “fix”. The Governor, however, signed the bill into law on March 27, albeit with reservations as to whether it will survive legal challenges. All sections of new L. 2019, ch. 23 took effect on Monday, April 1, 2019. A lawsuit, brought by the District Attorneys Association, challenging the establishment of the Commission has stayed the legislation.

On January 28, 2020, Acting Albany Supreme Court Justice David A. Weinstein struck down Judiciary Law Article 15-A and “enjoin[ed] the State from implementing [its] provisions, including the formation of the State Commission of [sic] Prosecutorial Conduct.”

Although “plaintiffs have failed to make [the requisite] showing as to a number of their arguments, they have demonstrated that the role given by the statute to the presiding justices of the Appellate Division is not permitted under New York’s constitutional framework, and that the Commission in its presently defined capacity interferes with, and thereby diminishes, the Appellate Division’s constitutional and exclusive jurisdiction over attorney discipline. Moreover, as these aspects of Article 15-A are central to the operation of the statute, they cannot be fixed through severance of the offending provisions.”

The full text of Justice Weinstein’s 62-page decision and order in Matter of Soares v The State of New York is available here. For more information, go to this PE page about the Commission on Prosecutorial Conduct.

News From Around the US

Massachusetts
After the first 2 trials ended in a hung jury, Frances Choy was convicted in 2011 of the 2003 arson-murder of her parents when she was in high school. That conviction has now been vacated, with the assent of the District Attorney who will not be seeking a 4th trial of the indictment. Among the grounds for vacatur of the conviction: the trial prosecutors (no longer with the Office), inter alia, had not turned over Brady material to the defense. Newly discovered evidence that led to the vacatur included intra-office email exchanges between the trial prosecutors with racially derogatory text and images that “demonstrated intentional racial bias against the defendant and her family” as well as sexually offensive comments.

The outside firm, hired by the DA to conduct an independent investigation of his staff’s emails through the years, concluded that there was not “a culture of racism” in his Office. Nonetheless, the DA has been holding additional trainings-education of his staff.

Minnesota
County Attorney disbarred, upon his consent and stipulation for “failing to disclose known police misconduct of which respondent had knowledge and which required disclosure, failing to implement a Brady policy, failing to disclose information about police misconduct to those who needed the information, and failing to train the staff of the Carlton County Attorney’s Office, ultimately resulting in the dismissals of 19 pending criminal cases and the retroactive dismissal and expungement of eight cases that had resulted in conviction, including release of one such defendant [from state prison].”

Tennessee
The Tennessee Supreme Court disbarred a former Ass’t District Attorney General in June after he submitted an affidavit acknowledging that he could not successfully defend himself against disciplinary charges predicated on facts attendant to his arrest, one month earlier, for bribery (i.e., soliciting sexual favors from defendants in exchange for reduction of charges against them).

In early September, the National Registry of Exonerations issued a 200+-page report, Government Misconduct and Convicting the Innocent: The Role of Prosecutors, Police and Other Law Enforcement, concerning official misconduct in the first 2,400 exonerations of the 2,663 exonerations since 1989 that are in the Registry. From the Report’s preface: “The Report is limited to misconduct by government officials that contributed to the false convictions of defendants who were later exonerated—misconduct that distorts the evidence used to determine guilt or innocence. Concretely, that means misconduct that produces unreliable, misleading or false evidence of guilt, or that conceals, distorts or undercuts true evidence of innocence” [emphasis in original].