Ethics Watch 2nd Quarter 2020


Professional Conduct Resources

The Right Thing

Code of Conduct

Brady/Giglio/Rosario & Other Discovery Issues

1st Dept

People v Stanford (Joe), 182 AD3d 433 (4/2/20) – “The court providently exercised its discretion when it declined to preclude the prosecution from introducing still photographs drawn from a surveillance videotape that was not turned over to the defense, and that was destroyed before the trial. There is no indication of bad faith on the part of the police or prosecution, and defendant had the opportunity to cross­-examine witnesses about the content of the missing videotape. Accordingly, the adverse inference charge that the court delivered was sufficient to prevent any prejudice (see People v Martinez, 71 NY2d 937, 940 [1988]).”

People v Martinez-Severino (Winston), 2020 NY Slip Op 03175 (6/4/20) – People unable to produce surveillance videotape because “law enforcement” had not preserved it. Adverse inference charge not required; “[t]he record demonstrates that the video was not ‘reasonably likely to be material’ (see People v Handy, 20 NY3d 663 [2013]).”

2nd Dept

People v Brown (Wiliam), 2020 NY Slip Op 03021 (5/27/20) – No Brady or Rosario violations by the People.

“Brady does not require that a prosecutor supply a defendant with evidence when the defendant knew of, or should reasonably have known of, the evidence and its exculpatory nature [internal punctuation & citations omitted]. Here, the People’s pretrial disclosures included two supplementary incident reports and a receipt stating that police had recovered and submitted for analysis 17 latent fingerprints from a car. At the defendant’s trial, witnesses testified that the car was the location from which the defendant obtained the weapon he used to commit the crimes of which he was convicted. The defendant and defense counsel therefore should reasonably have known of the possibility that the analysis of those latent fingerprints revealed that they did not match the defendant’s fingerprints. The defendant thus failed to establish that the People suppressed the fingerprint comparison report [citations omitted]. In any event, the evidence of the defendant’s guilt was strong…, and there was no reasonable probability that nondisclosure of the fingerprint comparison report affected the outcome of the trial [citing to, inter alia, People v Spruill, 164 AD3d 1270, 1274-1275 (2d Dept 2018)].”
“[D]efendant’s claim of a Rosario violation is … based upon unsubstantiated allegations that the People withheld certain recordings and documents from the defendant’s trial counsel, and the People demonstrated in an affirmation and other evidence offered in opposition to the defendant’s [CPL 440.10 motion to vacate the judgment] that prosecutors disclosed those materials prior to trial [see People v Allen, 285 AD2d 470, 471-472 (2d Dept 2001)].”

3rd Dept

People v. Williams (Jarquell), 182 AD3d 776 (4/16/20) – Affirmed judgment of conviction and trial court’s summary denial of CPL 440.10 motion. Among the claims rejected: that the prosecution violated its Brady obligation by failing to disclose a witness’ recantation prior to trial. The trial record showed that the prosecutor was “flummoxed” when the witness refused to testify and attempted to invoke his Fifth Amendment privilege. “There is no Brady violation where the exculpatory information was ‘unknown to the [People] and not within their possession’ [People v Hayes, 17 NY3d 46, 52 (2011)].”

People v. Kachadourian (Garo), 2020 NY Slip Op 03572 (6/25/20) – In a Victim Impact Statement written in preparation for defendant’s sentencing, an Adult Protective Services case worker (who had not testified at trial) stated that “the victim ha[d] no understanding of anything, but earlier in her nursing home placement had periods of lucidity in which she expressed fury over what the defendant had done.” Defendant argued, in his CPL 330.30 motion filed before sentencing, that he should have been provided previously with the notes because the victim’s prior periods of lucidity would have supported the defense that the victim had better been able to communicate in December 2013. The 3rd Dept upheld County Court’s denial of the motion to set aside the verdict. The case worker’s statement was cumulative, and there was also a question as to whether this information was material since the issue of defendant’s intent to steal was not controlled by the victim’s capacity to consent to the taking.

People v. Bush (Jerry), 2020 NY Slip Op 03568 (6/25/20) – Where the prosecution did not make timely disclosure that a People’s witness had a violation conviction for Driving While Ability Impaired and defendant argued that he had not been able to effectively cross-examine that witness, the Appellate Division found that there was no Brady violation. The traffic infraction did not constitute a criminal conviction for impeachment purposes.

4th Dept

People v Campbell (Andrew), 182 AD3d 1004 (4/24/20) – In affirming defendant’s conviction for criminal sale and possession of a controlled substance, the court held: “Defendant failed to preserve for our review his contention that the People infringed on his right to present a defense by failing to record and provide him with the serial numbers listed on the buy money for the first transaction…. In any event, we note that ‘the People have no duty to seek evidence for defendant’s benefit or to protect evidence prior to their possession of it’ [People v Burton, 126 AD3d 1324, 1325 (4th Dept 2015)]. Furthermore, the exculpatory value of the evidence sought by defendant is purely speculative…, and the record does not demonstrate that ‘the People acted in bad faith in failing to preserve the missing evidence’ [citations omitted].”

4th Dept also held that delayed disclosure of photographs of the buy money did not constitute a Brady violation. “The exculpatory value of the photograph was speculative [citations omitted]. Moreover, ‘[u]ntimely or delayed disclosure will not prejudice a defendant or deprive him or her of a fair trial where the defense is provided with a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his [or her] case’ [People v Carter, 131 AD3d 717, 718-719 (3rd Dept 2015)].”

People v Meyers (Iryn), 182 AD3d 1037 (4/24/20) – At the time of defendant’s trial for murder and arson, the transcript of the testimony of the fire investigators at his co-defendant’s preceding trial was not available. 4th Dept found that the People’s failure to provide the unavailable transcript was not a Rosario violation that defense counsel should have addressed. “[T]he People had no immediate access to the untranscribed portions of the fire investigators’ prior testimony and therefore could not be held responsible for a failure to turn them over to defendant (see People v Fishman, 72 NY2d 884, 886 [1988]). Moreover, even in the absence of a complete transcript of that prior testimony, the record establishes that trial counsel ‘effectively cross-examined the [fire investigators] and raised certain areas of possible doubt arising from their testimony’ [citation omitted].”

People v Healy (Robert), 182 AD3d 1014 (4/24/20) – Rejected defendant’s contention that trial court abused its discretion in refusing to order production of the complainant’s psychiatric records. “Defendant failed to show ‘a reasonable likelihood that the records might contain material bearing on the reliability and accuracy of the [complainant’s trial] testimony’ [People v Duwe, 164 AD3d 1256, 1257 (2d Dept 2018); other citations omitted].”

Grand Jury

3rd Dept

People v. Watson (Kashawn), 2020 NY Slip Op 03050 (5/28/20) –Motion to dismiss indictment pursuant to CPL 210.35 (5) was properly denied. Although a detective gave inaccurate testimony at the grand jury proceeding, there was no indication that the prosecutor was aware that inaccurate information had been provided, and there was additional evidence presented to the grand jury to support the indictment. As a result, any error did not impair the proceedings.

People v Clark (Joseph), 182 AD3d 703 (4/9/20) – Affirmed the dismissal of indictment, agreeing that the prosecution had not given adequate notice of its intent to present the case to the grand jury which afforded the defendant a reasonable time to consult with counsel and to decide whether to testify before the grand jury. The People’s CPL 190.50(5) notice did not specify the date of the grand jury presentment, and was sent (the day before the grand jury heard the evidence and voted to indict) to several attorneys, including the Conflict Defender, whom the local criminal court had failed to serve with the order of assignment. Additionally, “because the defendant was incarcerated, he could not have known that the assignment order had been misdirected.”

4th Dept

People v Lostumbo (Stanley), 182 AD3d 1007 (4/24/20) – Pointing out that CPL 190.50 does not mandate a specific time in which the People must give notice of a grand jury presentment, court rejected defendant’s claim that he was not provided with reasonable notice. “Here, the record establishes that the People orally gave defendant and his attorney approximately five days’ notice that the matter would be presented to the grand jury, which constituted reasonable notice under these circumstances [citations omitted]. Additionally, the written notice provided by the People to defense counsel approximately 1½ days prior to the grand jury proceedings also provided defendant with a reasonable amount of time to consult with defense counsel and decide whether to testify at those proceedings [see People v Sawyer, 96 NY2d 815, 816-817 (2001)].”

Voir Dire

2nd Dept

People v Hoedouglas (Shaheim), 2020 NY Slip Op 02938 (5/20/20) – Batson challenge properly denied by trial court. “[D]efendant did not demonstrate a pattern of discriminatory strikes or questions by the prosecution, or that a disproportionate number of strikes was used against African Americans [see People v Childress, 81 NY2d 263, 267 (1993)]. In addition, defense counsel did not compare the challenged juror to similarly situated unchallenged prospective jurors, point to factors in the challenged juror’s background that made him likely to be pro-prosecution, or enunciate any factor that suggested that the prosecutor exercised the challenge due to the prospective juror’s race [see People v MacShane, 11 NY3d 841, 842 (2008)]. The defendant’s contention that the challenged juror should not have been excused because he indicated no reason why he could not serve fairly, standing alone, was insufficient to establish a prima facie case of discrimination [citations omitted].”

4th Dept

People v Norman (Marcus), 2020 NY Slip Op 02567 (5/1/20) – Court rejected defendant’s contention that County Court erred in denying his Batson challenge. “The [trial] court’s determination whether a proffered race-neutral reason for striking a prospective juror is pretextual is accorded great deference on appeal [citations omitted]. Here, the People’s proffered reason was that the prospective juror stated during voir dire that she had been the victim of a burglary and that she was dissatisfied with the non-resolution of her case. We conclude that the proffered reason was sufficient to satisfy the People’s ‘quite minimal’ burden of providing a race-neutral reason for exercising a peremptory strike [case citations omitted].”

People v Boyd (Nyjee), 2020 NY Slip Op 03342 (6/12/20) – While the 4th Dept found that trial court used an incorrect standard in denying the challenge, it nevertheless concluded that defendant failed to satisfy its burden pursuant to step one of a Batson inquiry “inasmuch as he offered ‘the kind of vague and conclusory assertions’ that have been repeatedly rejected by the Court of Appeals (People v Jones, 11 NY3d 822, 823 [2008]). Specifically, defense counsel stated that the prospective juror in question was the ‘only black juror’ who had not already been dismissed for cause and there was ‘no indication’ that the juror would be ‘anything other than fair and impartial to both sides.’ * * * Insofar as the court based its reasoning on the erroneous notion that a discriminatory pattern of strikes must be shown, that reasoning was flawed [see People v Herrod, 163 AD3d 1462, 1462 (4th Dept 2018)]. Nevertheless, because defendant failed to establish a prima facie case at step one, the court properly denied his application without further inquiry [citation omitted].”

Direct

1st Dept

People v Melo (Jasson), 182 AD3d 431 (4/2/20) – In affirming the judgment, the 1st Dept rejected defendant’s contention that a new trial should be ordered because the People’s case included unduly prejudicial social media posts by defendant, one of which was a musical video reenactment of part of the crime. “This evidence contained defendant’s admissions to elements of the charged crimes [see People v Chico, 90 NY2d 585 (1997)]. To the extent the probative value of some of this evidence may have been outweighed by its potential for prejudice, any error … was harmless” in light of the overwhelming evidence of defendant’s guilt.

People v Badillo (Victor), 2020 NY Slip Op 03598 (6/25/20) – “In this case involving the alleged use of force to retain stolen merchandise, the court providently exercised its discretion in permitting the People’s expert to testify that defendant told him he had previously shoplifted, and that he thought he could get away with it. Unlike the hearsay evidence that defendant had initially sought to introduce through his own expert, this limited and nonprejudicial evidence of uncharged crimes was probative to explain the People’s expert’s opinion that defendant, despite his schizophrenia, had the ability to form an intent to forcibly steal. The court permitted only minimal testimony and twice gave limiting instructions, which the jury is presumed to have followed.”

3rd Dept

People v. Chapman (Olaijaide), 182 AD3d 862 (4/23/20) – Attempted first and second degree murder convictions reversed because the trial court allowed the prosecutor to use a redacted video of defendant’s statements to the police. Initially, after finding defendant’s statements were knowingly, voluntarily and freely made, the court precluded the video because the questioning “effect[ed] an impermissible burden shifting obligation on the defendant.” Later when the prosecution suggested using a redacted video, the trial court reconsidered, and a redacted video was used on the People’s case in chief. That redacted video consisted mostly of police officers recounting the case against the defendant and reading his texts; for the most part, defendant did not respond. Defendant made no inculpatory statements and his attitude appeared to be dismissive.

Evidence of a defendant’s pretrial silence is not admissible in New York [see, e.g., People v Williams, 25 NY3d 185, 190 (2015], and here, “[a]llowing evidence of defendant’s selective silence was highly prejudicial because there was a significant risk that the jurors deemed defendant’s failure to answer the police officer’s questions to be an admission of guilt.” An error “compounded by the People’s use of the video during summation, wherein the prosecutor highlighted and commented upon defendant’s silence during the police interrogation. In doing this, the People improperly shifted the burden to defendant.” This nonconstitutional error was not harmless because this was, for the most part, a circumstantial case with inconsistencies in the testimony of various co-conspirators; the jurors might very well have found the defendant not guilty had they not seen the video.

4th Dept

People v Campbell (Andrew), 182 AD3d 1004 (4/24/20) – Concluded that the People did not improperly elicit Molineux evidence when the confidential informant testified that the defendant was present at prior drug deals. “[T]he testimony of the confidential informant did not establish that defendant was participating in drug sales on those prior occasions and thus did not constitute evidence of uncharged crimes [citations omitted].”

People v Lostumbo (Stanley), 182 AD3d 1007 (4/24/20) – Although the People should not have played unredacted recordings of phone calls between the victim and defendant, the 4th Dept found that defense counsel was not ineffective for failing to move for a mistrial. This was a bench trial, where “the ‘court is presumed capable of disregarding the prejudicial aspect of the evidence” admitted therein’ [People v Tong Khuu, 293 AD2d 424, 425 (1st Dept 2002)], and here the court specifically disregarded the prejudicial parts of the calls and chastised the People for playing those parts of the calls.”

People v Hall (Nikey), 182 AD3d 1023 (4/24/20) – Defendant, convicted of Assault in the First Degree, for his infliction of traumatic brain injuries sustained by his 14-month-old son, failed to convince the 4th Dept that the People should not have been permitted to adduce certain evidence.

  • “Even assuming, arguendo,” that the recordings of telephone conversations defendant had with the victim’s mother and aunt constituted Molineux evidence, “such evidence was properly admitted inasmuch as it was relevant to defendant’s state of mind and motive, as well as to provide necessary background information, and the court did not abuse its discretion in determining that the probative value thereof outweighed the potential for prejudice [citations omitted].”
  • Evidence of the toddler’s prior injuries “was admissible to negate the defense of accident or mistake advanced by defendant,” particularly in light of the fact that “the crime[s] charged … occurred in the privacy of the home and the facts are not easily unraveled [internal punctuation and citations omitted].” The trial court also instructed the jury that it “was to consider the evidence only with respect to defendant’s claim that the victim’s injury arose from an accident,” thereby minimizing the prejudicial effect.

People v Harrington (Marquis), 2020 NY Slip Op 02399 (4/24/20) – Court agreed with defendant that the arresting officer should not have been allowed to testify that a bystander told him that the suspect ran into the house. “The statement of the bystander was inadmissible hearsay because it was admitted for the truth of the matters asserted therein [citations omitted]. Indeed, the import of the bystander’s statement was to confirm that the suspect had indeed fled into the house, and thereby confirm that someone inside the house, i.e., defendant, perpetrated the crime.” But error deemed harmless because of overwhelming evidence of defendant’s guilt.

Cross Examination

1st Dept

People v Tannen (Blake), 182 AD3d 482 (4/16/20) – Trial court did not err in permitting the prosecutor to cross-examine defendant “about prior sexual misconduct, notwithstanding that the present charges included sex crimes [citing to, inter alia, People v Smith, 18 NY3d 588, 593-94 (2012)], and it properly allowed [cross-examination of] defendant about a conviction by guilty plea in a case where he was awaiting sentence (People v Brady, 97 NY2d 233 [2002]).”

People v Vasquez (Luis), 2020 NY Slip Op 02237 (4/9/20) – All the Justices agreed that “the prosecutor improperly cross­-examined [the chief witness for the defense & admitted accomplice in the robbery] concerning three other crimes in which he had left the scene in a dark SUV. Some of the questions included a partial or complete recitation of the license plate number of the SUV used in the instant crime. This was a clear attempt to associate defendant with uncharged crimes, and the court should have sustained defense counsel’s objections to this line of questioning. Similarly, the prosecutor should not have made two references in her summation to the use of this ‘getaway vehicle’ in other crimes when discussing [the witness’s] testimony.” But the judgment was affirmed by a 3-2 majority, who deemed these errors harmless in light of the overwhelming evidence of guilt.

4th Dept

People v Redmond (Corey), 182 AD3d 1020 (4/24/2020) – The court rejected defendant’s contention that trial court erred in allowing the People to play portions of a recorded jail call between the defendant and the witness as it was collateral. The court held, “In general, a party who is cross-examining a witness cannot contradict the witness’s answers concerning collateral matters by introducing extrinsic evidence for the sole purpose of impeaching the witness’s credibility (see People v Pavao, 59 NY2d 282, 288-289 [1983]). However, extrinsic proof tending to establish a witness’s bias or reason to fabricate is never collateral [citations omitted]. The court properly exercised its discretion in allowing the use of the jail call because it did not concern a collateral matter and tended to demonstrate the defense witness’s bias (see People v Nicholson, 118 AD3d 1423, 1424 [4th Dept 2014], affd 26 NY3d 813 [2016]).”

Summation

3rd Dept

People v. Watson (Kashawn), 2020 NY Slip Op 03050 (5/28/20) – Although the prosecutor’s remark on summation equating the use of fake names with criminality “would be better left unsaid,” the isolated remark did not deprive the defendant of a fair trial.

People v. Bush (Jerry), 2020 NY Slip OP 03568 (6/25/20) — Although the claim was unpreserved, the Appellate Division noted that neither the prosecutor’s use of the phrase “I’m confident” in his opening nor the use of the term “I” in summation constituted an improper statement of personal belief in the case.

4th Dept

People v Carlson (Skyler), 2020 NY Slip Op 03336 (6/12/20) – 4th Dept concluded that defendant was not denied a fair trial by prosecutor’s comment in summation at the rape trial. “Although it was improper for the prosecutor on summation to characterize defense counsel’s summation as evincing ‘a Brock Turner mentality’ — inflaming the passions of the jury by specifically referring to a recent sexual assault case of nationwide notoriety that involved allegations similar to those made against defendant [citations omitted] – that sole comment, viewed in context of the prosecutor’s entire summation, was not so egregious as to deprive defendant of a fair trial [citations omitted].” The 4th Dept, however, thought it important to remind prosecutors of the following:

“Granted that [the prosecutor’s] paramount obligation is to the public, [he or she] must never lose sight of the fact that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness. Put another way, [the prosecutor’s] mission is not so much to convict as it is to achieve a just result’ [People v Bailey, 58 NY2d 272, 276-277 (1983); other citations omitted]. To that end, we emphasize that ‘[p]rosecutors play a distinctive role in the search for truth in criminal cases. As public officers they are charged not simply with seeking convictions but also with ensuring that justice is done. This role gives rise to special responsibilities—constitutional, statutory, ethical, personal—to safeguard the integrity of criminal proceedings and fairness in the criminal process’ (People v Santorelli, 95 NY2d 412, 420-421 [2000]).”

Miscellaneous

1st Dept

People v Butler (Joel), 2020 NY Slip Op 03449 (6/18/20) – People not obliged to make further efforts to produce defendant for sentencing on CPW convictions where Kansas “had no intention of permitting [defendant] to be extradited until he had completed his sentence [in that jurisdiction] for murder.” Consequently, Bronx Sup Ct properly denied defendant’s motion to dismiss the indictment owing to an unreasonable delay in sentencing.

2nd Dept

People v Keating (Michael), 2020 NY Slip Op 02627 (5/6/20) – Motion to dismiss murder indictment on speedy trial grounds properly denied. “Although there was an extensive delay of approximately 82 months between the murder of the victim and the indictment, the People established good cause for the delay, as a significant amount of the pre-indictment delay was attributable to an investigation to gather sufficient evidence to prosecute the defendant [citations omitted]. * * * The People established that the [appreciable] post-indictment delay was attributable to continued efforts to extradite the defendant [who had fled to Jamaica], [efforts that] were hindered by circumstances including the retirements and leaves of absence of various detectives overseeing the case. Moreover, while the lengthy delay is relevant to the consideration of prejudice suffered by the defendant from said delay, the defendant failed to demonstrate specific impairment to his defense [see People v Wiggins, 31 NY3d 1, 18-19 (2018)], [he] was not incarcerated during any portion of the pre-indictment or post-indictment delay, and the nature of the charge, murder in the second degree, was very serious [citations omitted].”

4th Dept

People v Addison (Benjamin), 2020 NY Slip Op 03309 (6/12/20) – Defendant further contends that the prosecutor abused his discretion and deprived defendant of a fair trial by refusing to confer immunity on the victim for any crimes that the victim may have allegedly committed in having a sexual relationship with a 15-year-old female. The prosecutor’s refusal to confer such immunity, defendant reasons, deprived him of the ability to effectively cross-examine the victim. We reject that contention. A prosecutor’s decision to confer or withhold immunity ‘is discretionary and not reviewable unless [the prosecutor] acts with bad faith to deprive a defendant of his or her right to a fair trial’ [see generally CPL 50.20 (2); case citation omitted]. A prosecutor acts in bad faith or compromises the fairness of a trial where ‘witnesses favorable to the prosecution are accorded immunity while those whose testimony would be exculpatory of the defendant are not, or … where the failure to grant immunity deprives the defendant of vital exculpatory testimony’ [People v Shapiro, 50 NY2d 747, 760 (1980); additional citations omitted]. Nothing of that sort occurred here; the prosecutor did not selectively confer immunity only on witnesses favorable to his case, nor was the collateral allegation of statutory rape related to the underlying events at issue in this case, much less in a fashion that could have exculpated defendant. Moreover, a witness’s refusal to answer questions on cross-examination relating to general credibility—such as his or her prior commission of statutory rape—may be remedied by ‘instructing the jury to consider the testimony in light of the defendant’s reduced ability to cross-examine’ [citation omitted], and Supreme Court gave such an instruction in this case.”

Disciplinary & Other Proceedings/Sanctions

  • Former Suffolk County District Attorney formally disbarred by Second Department following his conviction, in federal court, of (inter alia) witness tampering. Matter of Spota (Thomas), 2020 NY Slip Op 03233 (6/10/20).
  • County Court judge censured, primarily because he called county jail official to ask if inmates were given notice that their phone calls would be recorded; did not advise the prosecutor and defense counsel that he’d made the ex parte phone call; and relied upon the information jail official gave him to deny defendant’s pretrial motion to preclude the People from using the recording of defendant’s jailhouse call.
Matter of Carter (NYS Comm’n on Judicial Conduct 3/31/20).

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

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

Arizona
Juan Martinez, the lead prosecutor in the trial of Jodi Arias for the murder of her ex-boyfriend, was publicly reprimanded by the Supreme Court of Arizona for his misconduct in three Murder 1 trials. He is currently appealing his recent dismissal from the Maricopa County Attorney’s Office for reasons unrelated to his conduct as a prosecutor.

Indiana
The state’s Attorney General was suspended from the practice of law for 30 days, effective May 18, by order of the Illinois Supreme Court, which concluded that his groping of a state legislator and several legislative staffers (at a celebration of the end of the legislative session) constituted criminal conduct which reflected adversely on his fitness as a lawyer & was prejudicial to the administration of justice.

Iowa
As of June 19, a former County Attorney (defeated in his 2018 bid for a second term) stands suspended from the practice of law indefinitely, with no possibility of reinstatement for at least 6 months, owing to his workplace conduct that — in the words of Iowa’s Supreme Court — “virtually ran the gamut” of sexual harassment behaviors.

New Jersey
The Supreme Court of New Jersey reversed the murder conviction of one of two co-defendants because the prosecutor was not able to “deliver” the testimony of the defendant’s grandmother as promised — in good faith — in his opening statement to the jury. State v Greene and Lewis, citation not yet available (NJ Sup Ct 6/23/20).

“Despite the court’s order compelling her to testify with an assurance of immunity, the grandmother refused to do so, resulting in the court holding her in contempt and jailing her. To remediate any prejudice from the prosecutor’s failure to produce the grandmother, with counsels’ consent, the court instructed the jury that the prosecutor’s opening statement concerning the expected testimony of Greene’s grandmother was not evidence or to be considered in its deliberations. * * * The prosecutor’s detailed account of Greene’s incriminating statement to his grandmother was not likely forgotten by the jury, despite the trial court’s best efforts in providing a curative instruction. That the prosecutor acted in good faith, moreover, did not abate the damage done to Greene’s ability to receive a fair trial, particularly because the evidence against him was not overwhelming and the prosecutor’s opening had the capacity to tip the scales in favor of a conviction.”

New Mexico
The trial prosecutor’s closing argument was the chief reason that New Mexico’s Supreme Court reversed the multiple convictions arising out of the defendant’s burglary, robbery, and sexual offenses perpetrated against an elderly woman. State v Sena, citation not yet available (NM Sup Ct 6/25/20).

“In her closing argument, the prosecutor asked the jury, ‘Did you watch [Defendant] in the courtroom when [Victim] took the stand? He wouldn’t even look at her. He looked at every other witness in the eye, but he wouldn’t look at her.’ The argument had no purpose other than to invite the jury to draw an adverse conclusion from Defendant’s failure to get on the stand and explain why he would not look at Victim as she testified. After Defendant objected, the jury heard the district court overrule the objection, which placed the ‘stamp of judicial approval’ on the improper argument, further magnifying the prejudice…. [T]he prosecutor compounded the prejudice by repeating the statement and adding, ‘And why wouldn’t he look at her? Because he knew what he’d done. He knew what he did.’ * * * The prosecutor’s arguments violated Defendant’s Fifth and Fourteenth Amendment rights and deprived Defendant of a fair trial, resulting in reversible error. Prosecutors do not have license to make improper and prejudicial arguments with impunity.”

Tennessee
The Tennessee Supreme Court’s Board of Professional Responsibility issued a public censure against an Assistant DA who did not correct a sheriff investigator’s testimony at a preliminary hearing as to the current whereabouts of certain pieces of evidence. She eventually advised defense counsel of the witness’s false statement, but not until six months had passed, and “she did not advise the tribunal at any time.”

Approving of the negotiated disposition of the disciplinary proceeding, the Supreme Court of Tennessee suspended, for 2 months, a longtime AUSA who pleaded guilty in November to a federal misdemeanor charge, based on her “padding” of her time sheets for the U.S. Attorney’s Office.