Ethics Watch 2nd Quarter 2024

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Code of Conduct

2nd Quarter 2024 Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

1st Dept

People v Edwards (Jason), 2024 NY Slip Op 02675 (5/14/24) – Finding no merit in defendant’s unpreserved Brady claim, court declined to order a new trial in the interest of justice. Defense did not receive the police report at issue until after the 2016 trial was underway. But defendant’s attorney “was aware of the information in the report [and] was able to effectively cross-examine the People’s witness through use of other evidence consistent with the exculpatory material…. Defendant’s contention that the report could have led to additional favorable evidence had it been timely disclosed is speculative. Thus, there was no ‘reasonable possibility that the result of the trial would have been different if the evidence had been disclosed’ (People v McGhee, 36 NY3d 1063, 1065 [2021]).’

People v Calderon (Daniel), 2024 NY Slip Op 02673 (5/14/24) – NYCHA housing transfer request that the District Attorney’s Office had submitted on behalf of the victims and that counsel was apprised of, contained no Rosario material, and alleged Brady violation, predicated on non-disclosure of same letter, did not withstand analysis.

3rd Dept

People v Harries (Matthew), 2024 NY Slip Op 01843 (4/4/2024) – At the May 2021 arraignment on the indictment charging Attempted Murder 2 and other offenses, defense counsel told the court that he learned from a ”wanted poster” disseminated by the local police that an arrest warrant had been issued for the victim for CPW 2; counsel was also aware of a prior incident where the victim had threatened the defendant’s accomplice in this case with a gun. Defendant later pled guilty to one count of CPW 2 in satisfaction of the indictment and was sentenced to a determinate term of 3½ years to be followed by 2½ years post-release supervision. In reviewing the Office file after sentencing, another ADA realized that certain discovery had not been provided to and/or accessed by defendant’s attorney before the plea. The County Court summarily denied defendant’s subsequent CPL 440.40 motion to vacate the judgment because of prosecutorial misrepresentation and the failure to disclose Brady information concerning dealings between his codefendant-accomplice and the victim.

Due to statutory plea bargaining restrictions, a plea to no less than a class C violent felony, such as CPW 2, was required to satisfy the indictment charging Attempted Murder 2. The Third Department concluded that a hearing is required to explore whether the withheld information bore on the other charges and the effect a disclosure of the information would have had on defendant’s decision to enter a guilty plea.

4th Dept

People v Mitchell, 2024 NY Slip Op 03256 (6/14/2024) – Ruling 3:2 that the People failed to establish that they exercised due diligence and made reasonable inquiries before filing the initial COC that lacked a record of convictions, particularly concerning the complaining witness who had a prior conviction that was not disclosed. The failure of the People to independently run a criminal history on the witness, relying instead upon the summary report of the investigating agency that no such records existed, demonstrated a lack of diligence.

Voir Dire & Juror Issues

Court of Appeals

People v Wright (Freddie), 2024 NY Slip Op 03320 (6/18/24) – Court affirmed 4:3, finding there was record support for the lower courts’ conclusion that ADA’s explanations were non-pretextual. “The People’s asserted reason for striking C.C. was that “he had cousins who had been arrested . . . had other friends that had been involved in multiple arrests . . . that he rents, and he has no children . . . [and] is not married.” Initially, we have characterized ‘family involvement with police officers’ as a ‘clearly nonpretextual’ reason for exercising a peremptory challenge…. Moreover, here, the record demonstrates that C.C. felt strongly about the prior incident in which his cousin and family members had been arrested. Indeed, C.C. first mentioned the arrest in response to the court’s inquiry as to whether any of the potential jurors knew anyone who had been a victim of a crime, not in response to an inquiry about whether jurors knew anyone who had been arrested. Further, C.C. stated that police ‘raided the house’ and ‘barged in’ prior to arresting his cousin and detaining other family members, suggesting that he harbored strong feelings about the methods used by law enforcement. Finally, C.C. responded in the affirmative when pressed by the People as to whether this incident caused him to have negative feelings towards police.”

“While it is true that unequal application of even facially neutral reasons for a strike can support a finding of pretext, that is but one factor for a court to consider and does not demonstrate discriminatory intent in and of itself, especially where the circumstances surrounding the challenged juror are distinguishable (see Flowers v Mississippi, 588 US 284, 301-302 [2019]). Here, although there were other prospective jurors whose family members had also been arrested, the record does not indicate that those jurors shared C.C.’s feelings about the police or felt as strongly as he did about their respective incidents. None of those other jurors made comments indicating that they felt the arrest in question was wrong, or that they had lingering negative feelings about it.”

1st Dept

People v Davis (Abdul), 2024 NY Slip Op 03545 (6/27/24) – Court rejected claim of Batson error. Defendant’s numbers-based argument, without more, did not satisfy his initial burden of demonstrating a prima facie case of discrimination. Trial court’s alternative ruling — that the People proffered facially race-neutral reasons for their peremptory challenges to the two prospective black male jurors — was also proper. The prosecutor explained that the People “consistently strike jurors who are unemployed,” and one of the two men had fallen asleep during the proceedings. “The reasons provided by the People ‘need not rise to the level for sustaining a challenge for cause’ [citation omitted].”

4th Dept

People v Walker, 2024 NY Slip Op 03278 (6/14/2024) – Defendant’s Batson challenge was met with race-neutral explanations that passed muster and were therefore not pretextual: 1) prospective juror stated during voir dire that “innocent people get charged every day;“ 2) he talked about a right not to cooperate with police; and 3) he showed a better rapport with defense counsel. Proffered reason was sufficient to satisfy “the People’s ‘quite minimal’ burden of providing a race-neutral reason” for exercising a peremptory.  Case remitted, however, to determine discovery issue.

People v Sedore, 2024 NY Slip Op 02437 (5/3/2024) – Defendant failed to preserve his contention that the prosecutor’s response to a Batson challenge was pretextual and thus, the court erred in summarily concluding that the prosecutor’s response was sufficient. By “fail[ing] to articulate to the court ‘any reason why he believed that the prosecutor’s explanation [was] pretextual,’ ” the claim is unpreserved for appellate review.

Opening

1st Dept

People v Calderon (Daniel), 2024 NY Slip Op 02673 (5/14/24) – ADA improperly suggested in his opening statement that the order of protection issued in favor of the victims did not have an expiration date, but did not deny defendant a fair trial because the order of protection, with the expiration date was produced at trial; plus and the court instructed the jurors that opening remarks are not evidence.

Direct

Court of Appeals

People v Weinstein (Harvey), 2024 NY Slip Op 02222 (4/25/24) — People should not have been permitted to introduce, as Molineux evidence, testimony from 3 women as to their interactions with defendant. “[A]s a matter of law, the trial court erroneously held that the prosecution showed that the Molineux Witnesses’ testimonies were necessary for a non-propensity purpose” — the first step in its consideration of Molineux challenges and one that the Court reviews de novo. In the context of this case, “the testimony served to persuade the jury that, if he had attempted to coerce those three witnesses into nonconsensual sex, then he did the same to the victims on the dates and under the circumstances as charged. That is pure propensity evidence and it is inadmissible against a criminal defendant under Molineux and its century-old progeny.”

People v Baez (Melvin)]], 2024 NY Slip Op 02225 (4/25/24) – People established adequate foundation for receipt into evidence of cocaine at CPCS trial. The People “called every individual known to have handled the evidence from the time of its seizure to trial, other than those officers who merely transported the evidence in sealed packaging between locations,” and the few hours’ gap between the time the evidence was left at the stationhouse by one officer and the time it was picked up by another officer did not, under the attendant circumstances, defeat the chain of custody. Lastly, the (substantial) “discrepancies in how the evidence was described at various points between its recovery and trial” “merely raise weight and credibility issues for the jury to resolve in assessing whether the People met their ultimate burden of establishing proof of guilt beyond reasonable doubt [citations omitted].”

People v Franklin (Cid C.)]], 2024 NY Slip Op 02227 (4/25/24) – Successful People’s appeal. Court of Appeals ruled that Confrontation Clause was not violated by receipt of CJA report (non-profit agency prepares reports, with recommendation re pretrial release, for arraigning judges in NYC) through the interviewing employee’s supervisor. Assessed in light of current U.S. Supreme Court precedent enunciating the definition of “testimonial,” the Court concluded that the CJA report in question was “administrative” — not something tailored “to establish or prove past events potentially relevant to later criminal prosecution.” “That a CJA report is generated for a court and has consequences for a defendant’s liberty does not change the fact that its primary purpose is administrative, and not testimonial.”

People v Mosley (Farod), 2024 NY Slip Op 02125 (4/23/24) – For the first time, the Court held that a person who did not witness the crime may testify that the defendant is the person depicted in a photo or video — provided that

  1. “the witness is sufficiently familiar with the defendant that their testimony would be reliable,” and
  2. “there is reason to believe the jury might require such assistance in making its independent assessment.”

But conviction reversed because the requisite showing not made here, and the Court did not view the error as harmless.

People v Williams (David), 2024 NY Slip Op 02128 (4/23/24) – People adduced “practically no testimony [at probable cause/Givens hearing] regarding the undercover officer’s observations of the seller’s appearance to support a determination that he had a sufficient independent basis to identify defendant in court.” Absent that, the court should not have permitted the undercover to make the in-court identification without first holding the independent source hearing requested by defense counsel.

3rd Dept

People v Kendricks (Robert), 2024 NY Slip Op 01951 (4/11/2024) – At defendant’s trial for unlawful possession of a firearm and controlled substances, the prosecution was properly permitted to introduce evidence that the defendant sold crack cocaine and possessed a firearm on the day before the crimes for which he was on trial were committed. This evidence was received under the Molineux exception that it was inextricably intertwined with the crimes charged. Also the trial court gave limiting instructions when the evidence was received and again in its main charge.

People v Cuadrado (Juan), 2024 NY Slip Op 02559 (5/9/2024) – Third Dept rejected defendant’s claims that he was entitled to a new trial of child sex offenses because of alleged errors in the People’s presentation.

  1. Evidence of corporal punishment, an act of physical abuse against the mother of the three child victims, and details of uncharged sexual acts against the child victims was properly admitted. The uncharged sex acts were inextricably intertwined with the crimes charged, and the other challenged Molineux evidence provided necessary background about the victims’ fear of the defendant and how they reported the abuse. Additionally, the judge gave limiting instructions when the evidence was introduced and in its charge.
  2. An expert may testify about child sex abuse syndrome in order to aid the jury. Although the expert should not draw any comparison to the facts of the case, the expert can explain a victim’s behavior so that the jurors can understand, e.g. failure to promptly report. Here, the expert had neither treated nor met the victims or defendant and had not reviewed any materials about this case prior to trial. He “did not proffer an opinion as to the victims’ credibility or whether abuse occurred and properly confined his testimony to educating the jury on the syndrome [internal punctuation and citations omitted].”

People v Osman (Muhamad), 2024 NY Slip Op 03106(6/6/2024) – Convictions for attempted rape in the first degree and first degree sexual abuse reversed because of prosecutorial impropriety. Pretrial, the court issued a Sandoval compromise ruling that the People could ask defendant about his prior 2nd degree burglary conviction, but not the underlying facts (defendant and his friends entered a home without permission to hold a party) unless the defense opened the door. In the opening statement, the prosecutor told the jury that before any sexual assault, defendant “disclosed something unexpected, something that jarred [the victim]; specifically, that “he had spent several years in prison.” The trial judge immediately told the jury to disregard the remark, and at a sidebar, the judge accused the prosecutor of “’sandbagging’” because the People had not indicated it intended to elicit that testimony from the victim. The court, however, denied defendant’s motion for a mistrial on the the ground that it would have allowed the statement, had the People made a pretrial Ventimiglia application. It did give a curative instruction.

First, the 3rd Dept held that use of the victim’s statement without obtaining a pretrial Ventimiglia ruling was improper. It rejected the People’s argument that an advance ruling was not necessary because the statement was part of the criminal conduct itself. The pretrial Sandoval application showed the People recognized this evidence “was subject to a discretionary determination as to whether the probative value outweighed the risk for real prejudice.” This evidence was not integral to the victim’s narrative or inextricably interwoven with the victim’s narrative. The People’s theory of the case was that defendant used physical force, but while the victim characterized the defendant’s remarks about the burglary as “weird” and made her feel uncomfortable, she did not feel scared or threatened by that. Also, even if admissible under this Molineux exception, the information should have been excluded here because its “minimal probative value was outweighed by its prejudicial effect.” Lastly, the error was not harmless as there was a significant probability that the error contributed to defendant’s conviction, and “we do not believe the [curative] instruction was sufficient to nullify the effect on the jury.”

4th Dept

People v Williams, 2024 NY Slip Op 03255 (6/14/2024) – Defendant was not denied a fair trial by the prosecutor’s mischaracterization of certain DNA evidence during opening statements and summation. Claim is unpreserved for review inasmuch as defendant did not object to the alleged instances of misconduct. In any event, although the prosecutor may have overstated the import of the DNA evidence, any improper remarks were not so pervasive and egregious as to deny defendant a fair trial. Additionally, defense counsel’s failure to object to the prosecutor’s remarks did not deprive defendant of effective assistance of counsel.

Cross-examination

Court of Appeals

People v Weinstein (Harvey)]], 2024 NY Slip Op 02222 (4/25/24) —Trial court committed reversible error in granting People’s Sandoval application so as to authorize cross-examining defendant, who had no criminal record, “about prior, uncharged alleged bad acts and despicable behavior which was immaterial to his in-court credibility, and which served no purpose other than to display for the jury defendant’s loathsome character.” E.g., verbally abusing employees, throwing items. punching his brother at a business meeting; backing out of business deals.

 

Summation

1st Dept

People v Govan (George), 2024 NY Slip Op 02025(4/16/24) – Defense counsel’s summation was devoted to the claim that any sexual contact between defendant and the complainant was consensual, the prosecutor’s remark to the jury in summation that there was “not a shred of testimony” to support that claim, which was “nothing more than rampant speculation,” did not impermissibly shift the burden of proof to defendant. Prosecutor was “permissibly making an evidence-based argument in response to the defense summation.”

3rd Dept

People v Birch (Donald),2024 NY Slip Op 03101 (6/6/2024) – During an animal cruelty trial, the prosecutor made remarks in summation about the lack of certain jury instructions, sentencing and a police officer’s belief that the cat had been killed in a depraved manner. While these were improper, the trial court promptly sustained defense counsel’s objections to the remarks and gave prompt curative instructions that the jury was to disregard those remarks. This was sufficient to cure any prejudice flowing from the remarks. The prosecutor’s remarks about handling an injured animal and adopting a wait and see attitude to determine the extent of the animal’s injuries were appropriate since it relied on the jury’s common sense and experience.

4th Dept

People v Williams, 2024 NY Slip Op 03255 (6/14/2024) – Defendant’s contention that he was denied a fair trial by the prosecutor’s mischaracterization of certain DNA evidence during opening statements and summation was unpreserved for review inasmuch as defendant did not object to the alleged instances of misconduct. In any event, although the prosecutor may have overstated the import of the DNA evidence, any improper remarks were not so pervasive and egregious as to deny defendant a fair trial. Additionally, defense counsel’s failure to object to the prosecutor’s remarks did not deprive defendant of effective assistance of counsel.

Conflict of Interest/Appearance of Impropriety

Judicial Ethics Opinions

  • Judge recently hired a former ADA as his law clerk; while an ADA, “the law clerk conducted legal research…which was incorporated in the People’s opposition to the defendant’s currently pending motion to vacate” the conviction under CPL 440.10. Judge sought advisory opinion from the NYS Advisory Committee on Judicial Ethics after both the People and the defense moved for his recusal. From Judicial Ethics Opinion 23-96:

“A judge is not automatically disqualified from presiding in a case merely because the judge’s law clerk was personally involved in it during the law clerk’s prior employment (see Opinions 15-233; 15-43; 08-71). Rather, if, as here, the judge believes they can be fair and impartial, the judge must insulate the law clerk from all matters in which the law clerk was personally involved and disclose the insulation and the reason for it (see id.). No lapse of time affects the requirement that the law clerk be insulated from all matters in which they were personally involved to any extent, and the insulation may not be waived or remitted (see Opinions 15-233; 15-43), even where the law clerk’s involvement in the matter consisted of only a single court appearance (see Opinion 21-42).”

“Accordingly, on the facts presented, we conclude the judge must fully and permanently insulate their law clerk from this case and disclose the insulation, but may thereafter preside as long as the judge can be fair and impartial.”

  • “While a judge ‘shall not permit his or her partners or associates to practice law in the court in which he or she is a judge’ (22 NYCRR 100.6[B][3]), this prohibition does not include the spouse or other relatives of such partners or associates. Nor is disqualification mandated under Section 100.3(E)(1)(a)-(f). Indeed, in similar circumstances, we have said a judge’s impartiality cannot ‘reasonably be questioned’ (22 NYCRR 100.3[E][1]) in a case merely because an assistant district attorney is married to the judge’s law firm partner or a private attorney is the sibling of the judge’s law firm associate. On the facts presented, we conclude this judge need not disqualify or disclose in matters prosecuted by an attorney who is married to the judge’s law partner, provided the judge is satisfied he/she can be fair and impartial.[1] Such decisions are left entirely to the judge’s discretion.” Judicial Ethics Opinion 23-90.

 

3rd Dept

ADA arguing appeal was law clerk to the judge who presided at defendant’s trial.

People v Pica-Torres, 2024 NY Slip Op 02345 (5/2/2024) – ADA who planned to argue the case before the App Div, did not write the People’s brief, but was the trial judge’s law clerk. But the 3rd Dept, pointing to Rule 1.12 of the Rules of Professional Responsibility concluded there was a conflict of interest disqualifying her from appearing on behalf of the People. The Rule provides that “a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as … a law clerk to a judge” absent written consent of all parties. Rule 1.12 (b) (2). Moreover, the ADA’s participation demonstrated that in-house screening measures were not in place; consequently, the entire DA’s Office should be disqualified. See Rule 1.12 (d) (1). Appeal held in abeyance and matter remitted, so that a special prosecutor can be appointed for the appeal.

Trial prosecutor was secretly doing work for defense counsel

People v Hines (Jamal), 2024 NY Slip Op 03102 (6/6/24) – Like the defendants in last year’s cases, People v Thomas, 217 AD3d 1125 (3d Dept 2023), and People v Mero, 221 AD3d 1242 (3d Dept 2023), Hines moved to vacate his conviction on the ground that defense counsel had a conflict of interest that was not disclosed to him. After Hines’ guilty plea conviction was affirmed, he learned that the ADA assigned to his case had simultaneously been ghostwriting appellate briefs for defense counsel in other cases. The court denied the CPL 440 motion after a hearing, and the Appellate Division affirmed.
First, it pointed to the difference between actual conflict and potential conflict. Here, the record was devoid of any evidence that defendant’s attorney “had any divided loyalties or represented any conflicting interests in the context of advocating for defendant in this matter. Similarly, although the ADA — in his dual role as prosecuting attorney and appellate brief ghostwriter — may have found himself in something of a quandary, neither the ADA’s ethical nor business dilemma gave rise to an actual conflict of interest in trial counsel’s representation of defendant” [internal punctuation and citation omitted]. It then found no evidence that the potential conflict “affected, operated on or bore a substantial relation to the conduct of the defense” as required for vacatur/reversal of conviction in potential conflict cases.

After special prosecutor appointed, case was returned to the DA’s Office

People v. Faison (Teddy), 2024 NY Slip Op 01836 (4/4/2024) – Post-arrest, the District Attorney asked that a special prosecutor be appointed because the People were prosecuting the victim A in connection with its investigation into defendant’s criminal actions. After the court granted the motion, a special prosecutor conducted the preliminary hearing in defendant’s case. A week later, the special prosecutor asked to be relieved, owing to the crush of “other professional and personal commitments,” and also requested that defendant’s case be returned to the District Attorney’s Office; that motion was granted in its entirety after County Court held an in-chambers, off-the-record conference with defense counsel, the DA, and the special prosecutor. The court later denied defendant’s post-indictment application seeking to disqualify the DA’s Office and that another special prosecutor be appointed. Defendant was convicted of Robbery after a trial and senenced as a persistent felony offender.

The Appellate Division rejected defendant’s initial argument that County Court should not have granted the special prosecutor’s request to be relieved, for the special prosecutor “made a good faith showing of an inability to prosecute the case.” But it reversed the conviction because no record was made explaining why the disqualification was no longer necessary. “[B]ecause on this record we cannot determine why County Court . . . deemed it appropriate to no longer disqualify the DA’s office, we find that the court committed reversible error in returning the matter to the DA’s office [citation omitted].”

 

Miscellaneous

2nd Quarter 2024

Constitutional speedy trial

  • People v Bellamy (James), 2024 NY Slip Op 02283 (4/30/24) – In rejecting defendant’s claim that he was denied his constitutional right to a speedy trial, the 1st Dept pointed out that much of the 5-year delay was attributable to defendant himself, not the People, because he, inter alia, repeatedly (a) sought to have new counsel assigned and (b) refusing to be produced in court.
  • People v Woods (Travis), 2024 NY Slip Op 02260 (4/25/24) – 3-year delay between mistrial and retrial did not require reversal. Delay largely due to “the People’s good faith attempts to reassess and reinvestigate the case, and to correspond with defense counsel about potential disposition. Further, the charges against defendant, including the murder charge, were extremely serious, and defendant was already incarcerated in connection with his prior convictions during the entire delay. Moreover, defendant has not shown that the delay impaired his defense.”
  • People v Park, 2024 NY Slip Op 02991 (5/30/24) – 5 years between arrest and second trial, much of which was due to COVID’s impact upon judicial system. 20 months attributable to the People, but this was a case that “necessitated the presentation of an extensive breadth of evidence and the testimony of numerous witnesses, requiring the prosecutor to ‘proceed with far more caution and deliberation than he would expend on a relatively minor offense’ [citation omitted].”

Charging decision did not constitute Due Process/Equal Protection violation

  • People v Maraj, 2024 NY Slip Op 03497 (2d Dept. 6/26/26) – “The defendant contends that he was deprived of his rights to due process and equal protection because he was prosecuted for predatory sexual assault against a child, a class A-II felony (Penal Law § 130.96), even though the same conduct also constituted the offense of course of sexual conduct against a child in the first degree, a class B felony (Penal Law § 130.75). This contention is without merit. “The law ‘provides the prosecutor with broad discretion to decide what crimes to charge’ and ‘overlapping’ criminal statutes [without more] do not violate the defendant’s constitutional rights” [citations omitted].”

Discrepancy between indictment’s allegation and proof at trial

  • People v Holmes (Robert), 2024 NY Slip Op 02560 (3d Dept 5/9/2024) – In the rape indictment, the People specified that defendant had raped the victim “at, after, or around 11:30 pm on December 18, 2018.” At trial, the victim testified that defendant had attacked her in the early morning hour of December 19, 2018. Because defendant did not raise any objection to the time discrepancy at trial and the issue was not preserved. In any event, the time of a sexual assault is not a material element of rape in the first degree, and “in light of the minimal discrepancy involved here,” the Appellate Division declined to find “that the People’s proof at trial varied from the allegations in the indictment so as to warrant reversal.”

Disciplinary & Other Proceedings/Sanctions

More than 1500 attorneys face suspension by 3rd Dept

By Order to Show Cause issued by the Third Department’s Presiding Justice on May 24, 2024, lawyers have been directed to demonstrate on or before September 6 why they should not be suspended for failure to duly register for 2 or more biennial attorney registration periods. For more information, including the names of the delinquent attorneys, see this page on the 3rd Dept’s website.

Suspension for a variety of misconduct
Matter of Karamvir Dahiya, 2024 NY Slip Op 03461 (1st Dept 6/25/24) – Attorney suspended for at least 3 months because he had, among other things, engaged in frivolous litigation, neglected a client’s legal matter, and made ad hominem attacks on bankruptcy trustee. App. Div. also pointed out the attorney’s lack of remorse and efforts to justify his actions (violation of rules 1.1(a), 3.1(b)(1), 3.1(b)(2), 3.3(f)(2), 3.4(c), 8.4(d), and 8.4(h)).

AI Use

1st Department Caution on AI

  • Dowlah v Professional Staff Congress, 2024 NY Slip Op 02980 (5/30/2024) – “We caution plaintiff that his pro se status does not excuse failure to check legal citations.”

PA On Technology and AI

  • Lawyers are required to maintain competence across all technological means relevant to their practices, including generative AI. PA Joint-Formal-Opinion-Attorney Tech Comp includes AI 2024-200.

News From Other States

DA’s “outrageous” statements in interview lead to dismissal of Murder 1 indictment

  • People of the State of Colorado v. William Jacobs, no citation available Case No. 23CR191 (Combined Court, Fremont County 5/29/2024) – Defendant was charged with Murder 1 for the death of his girlfriend’s baby. After a scheduling conference concluded on July 12, 2023, the DA gave a videotaped interview, in her office, to a local television reporter; the interview was posted on the TV station’s website later that day and broadcast repeatedly. Among other things, the DA said that defendant had moved in with the child’s mother just days after meeting her and had agreed to babysit the infant only because he wanted to “get laid” and have a place to sleep; revealed that he had been previously convicted of a sex offense, and at the time he moved in with the child’s mother, was recently released from a youth correctional facility; and declared he had a history of violence. In granting the defense motion to dismiss the indictment, the trial judge rejected the alternative remedies of a change of venue and/or disciplinary action against the DA herself. “DA Linda Stanley’s actions reflect knowing and intentional outrageous government conduct that violated defendant Jacobs’ right to due process. As a result, dismissal of the charges was an appropriate remedy.”

State Prosecuting Attorneys Association is not subject to Open Public Records Act

Erroneous allegations of fact in Ass’t AG’s motion papers lead to public reprimand

  • Upon the parties’ stipulation, an Ass’t AG stands publicly reprimanded because her “negligent” (not intentional) factual misrepresentations in court papers resulted in defendant being held in pretrial custody, for more than a year, subject to a condition that the original bail court had not imposed. Bar Counsel v Kristyn Dusel Kelly, Esq, citation not available (Mass Bd of Bar Overseers 3/28/24).

Attorney censured for insulting-demeaning ADA

  • The Supreme Court of New Mexico has publicly ensured a criminal defense attorney who, inter alia, was overly argumentative with a judge & repeatedly belittled a prosecutor, told her to “Go to Hell,” and “Lay off the trendy feminist baloney.” Matter of Albert Costales, Esq., no citation available (N.M. 4/15/24).

8.4(g) Inappropriate Comments