New York Suspends Former Prosecutor For Discovery Violations

A former Suffolk County prosecutor has been suspended for two years by the New York Appellate Division for the Second Judicial Department for violations of discovery obligations in a felony murder trial

The respondent has admitted violating his prosecutorial obligations under both Brady and Rosario. Further, according to the unchallenged findings of the Special Referee, the petitioner adduced substantial evidence that the respondent failed to disclose 48 items that should have been disclosed under Brady—including materials implicating an alternative suspect, John Doe No. 1, as the shooter and murderer of the victim, as well as information that undermined the credibility of the People’s main trial witnesses—from Booker’s former girlfriend and Jane Doe No. 1. We need not discuss all 48 items; it is sufficient to discuss items that the respondent admits are violations.

The court affirmed the referee's misconduct findings

the Special Referee found that the respondent engaged in a deliberate pattern of avoidance, or willful blindness, in his handling of the documents in the police file. The respondent understood that there was a high probability of the existence of Brady-type materials and he took deliberate, volitional, and extraordinary actions to attempt to avoid learning of the existence of Brady-type materials in the Booker case. He blinded himself to the Brady material by not conducting a Brady review or analysis. He consciously delegated his duties under Brady to Detective O’Hara, whom he expected to alert him to exculpatory information. But he never asked Detective O’Hara whether there was any exculpatory or Brady-type information in the police file, and Detective O’Hara disavowed any meaningful insight into Brady.

The court here notes that prosecutors "have been the subject of disciplinary proceedings in New York courts for at least one century."

Sanction

The respondent was a seasoned prosecutor with extensive experience. His conduct in relation to the Booker case merits the strongest possible condemnation because his actions deprived the defendant of a fair trial and also deprived the victim’s family of a determination as to whether the defendant was responsible for the homicide and, if so, the imposition of a just sentence.

Against the grave violations of professional standards committed by the respondent, we give weight to the extensive evidence in mitigation, credited by the Special Referee. There was no showing of intentionally malicious or venal conduct. While the respondent committed extensive misconduct in one case, there was no showing that he engaged in any similar conduct in any other cases notwithstanding the respondent’s assertion to the effect that he customarily delegated responsibility for compliance with Brady to the police. The respondent accepted responsibility and demonstrated remorse. He cooperated with the petitioner in this proceeding to the extent that he admitted his misconduct, though he did backtrack somewhat during the hearing conducted by the Special Referee. The respondent has no prior disciplinary record. The Special Referee found that the respondent presented substantial, credible evidence of his reputation and good character. It is unlikely that the respondent will engage in similar misconduct in the future given his resignation from the Suffolk DA’s office. He has engaged in community service outside of his prosecutorial duties. We consider as well the Special Referee’s finding that a member of the respondent’s family had a medical issue which created a burden upon the respondent and this should be considered in mitigation.

The defendant pleaded to burglary in the second degree after the misconduct was uncovered in the course of the trial. (Mike Frisch)