Thursday, August 4, 2011

No Disqualification When Defendants Sue Prosecutors

The New York Appellate Division for the Third Judicial Department has held that a trial judge exceeded his authority by disqualifying a District Attorney and his entire office in a criminal matter. The defendants were charged with selling steroids over the Internet.

The disqualification was premised on a potential conflict of interest:

Soon after a fifth indictment was returned, the federal court determined that petitioner and his staff were not entitled to immunity or summary judgment on certain claims in the civil action. When, in the context of the criminal case, the defendants then challenged the fifth indictment, respondent [the trial judge] dismissed it with leave to re-present, but found petitioner and his staff to have a conflict of interest due to their exposure to liability in the civil action. Accordingly, respondent disqualified petitioner and his staff from further prosecution of the case and appointed a Special District Attorney to pursue representation.

The court concluded that the disqualification order was subject to review. Noting that the criminal defendants had sued the prosecutor for malicious prosecution, the court concludes:

...public policy further supports our finding that respondent erred and exceeded his authority in disqualifying petitioner. Acquiescence to a policy by which a criminal defendant, through the simple expedient of commencing a civil lawsuit, may effect the removal of a duly elected District Attorney and his or her staff would establish a dangerous precedent that is wholly unwarranted under the circumstances presented here.

A dissent disagrees on the public policy conclusion, noting unique factual circumstances and the denial of summary judgment on the civil claims. (Mike Frisch)

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