Thursday, February 7, 2008

Suspension Insufficient For Dishonest Prosecutor?

An Assistant District Attorney in Queens County, New York was suspended In New York in 2002. He had "failed to produce to the defense a report concerning a witness believed to have exculpatory information in a homicide case...Faced with a direct inquiry from the court before trial regarding the witness's' whereabouts, [the prosecutor] falsely stated that he did not know, despite having previously located and met with the witness at her place of employment the previous week. [He] failed to correct this misinformation at trial. As a result, the case had to be retried." The New York Second Department imposed a three-year suspension with fitness.

The sanction did not sit well with the panel that considered reciprocal discipline in the District of Columbia. Noting that Bar Counsel and the Board on Professional Responsibility favored identical discipline, the court reluctantly imposed reciprocal discipline with concurring and dissenting opinions. Senior Judge Nebeker's dissent: "As a public prosecutor, this man fraudulently and contemptuously violated his constitutional duty by failing to disclose Brady material he well knew he possessed and by lying to a trial judge in open court about it. In considering the appropriate discipline for such conduct, we must take into account the need to ensure and enhance public confidence in the prosecution of criminal offenses. In my view, a three-year suspension does not go far enough in that regard. I would, therefore, refer this matter back to disciplinary authorities for proceedings leading to possible disbarment." (Mike Frisch)

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Good for them; I believe that the suspension imposed is still a pretty strong message, and somewhat unusual for cheating prosecutors. It may be that the strict views of some of the D.C. actors is a [positive] byproduct of the Mike Nifong/Duke matter.

Posted by: Childress | Feb 7, 2008 9:13:19 AM

I agree with Alan's assessment-- it is noteworthy that the concurring and dissenting judges both served as Assistant United States Attorneys in the District of Columbia.

Posted by: Mike Frisch | Feb 7, 2008 10:52:51 AM

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