POST WRITTEN BY: John A. Vitagliano (’17), J.D. Pace Law School
U.S. Attorney for the Southern District of New York Preet Bharara has criticized New York’s political culture, where
deal-making has long been done in Albany by ‘three men in a room’ (the governor, the State Assembly speaker and the State Senate majority leader), who work in secret and without accountability to decide [the states] most vital issues.
On May 12, 2015 New York Senate Majority Leader, Republican Dean Skelos vacated his post amidst a criminal complaint filed for federal charges involving fraud, extortion, and solicitation of gratuities and bribes.
On January 21, 2015, the Former Speaker of the New York State Assembly Sheldon Silver, Assemblyman since 1976 and continuously re-elected speaker since 1994, was indicted on several criminal corruption charges using his political power and influence that netted him $4 million in payoffs.
Mr. Silver, a Democrat from the Lower East Side of Manhattan, was accussed of steering real estate developers to a law firm that paid him kickbacks. He was also accused of funneling state grants to a doctor who referred claims to a second law firm that employed Mr. Silver and paid him fees for referring clients.
Mr. Silver has resigned from his position as Speaker and is currently awaiting trial to defend himself against the federal charges. The exposure of Mr. Silver’s conduct brings Governor Andrew Cuomo’s termination of the Moreland Commission back into the spotlight. The anti-corruption panel was set up to investigate public corruption in New York State and was disbanded after it began looking at the behaviors of certain law firms tied to the governor and Mr. Silver.
Over the past few years, the New York Legislature has been infested with corruption and political misconduct. On February 5, 2015, Mr. Silver and former New York State Assemblyman, Vito Lopez, settled a sexual harassment lawsuit for $580,000 using state funds to pay over 90% of the settlement. William Scarborough resigned from his position and plead guilty to corruption charges in April 2015. Bronx politician Nelson Castro was sentenced to two years probation and 250 community service hours after pleading guilty for lying to investigators. Due to Castro’s cooperation, Eric Stevenson was convicted and sentenced to three years in prison for accepting bribes from businessmen in May 2014. In October 2014 Gabriela Rosa was sentenced to a year in prison after pleading guilty for making false statements in a bankruptcy petition and lying to authorities regarding her marital relationship. William Boyland was convicted in March 2014 on federal charges including bribery, extortion and mail fraud. In February 2014, Malcolm Smith was found guilty of conspiracy, wire fraud, bribery, and extortion when he attempted to scheme his way onto the ballot. In July 2014 Thomas Libous was indicted for lying to federal agents in regards to abusing his political influence in order to obtain a job for his son. In 2013 Pedro Espada Jr. was sentenced to five years in prison for stealing hundreds of thousands of dollars from a health care network he ran. In 2012 Nick Spano, after pleading guilty to a felony for filing fraudulent tax returns, served one year in prison.
Amidst all the public corruption and political misconduct in New York State, the question becomes – can we trust our elected officials? Regardless of political party, can the citizens of New York rely on politicians to uphold their offices with honesty and integrity? Do we really know if our representatives have the public’s interest at heart when they are conducting “business” behind closed doors? Given the recent developments the answer appears to be NO.
The apparent corruption in New York may engender a strong grass-roots movement for a State Constitutional Convention to assist in revamping our political system. Every 20 years, the New York Constitution mandates voters to decide whether to hold a statewide convention to change or amend the constitution and the government. The 2017 ballot will ask the voters if a State Constitutional Convention should be held. Most politicians oppose a constitutional convention because
it is feared that a convention might take steps to diminish the legislature’s institutional power or incumbents’ chances of re-election.
Citizens of the state with honest motives, ethics and morals would have the opportunity to run for delegates for the Convention to redesign the New York State government. While many obstacles would be met if a Constitutional Convention were to take place, it is a legitimate opportunity to rid the state of corrupt politicians.
Action should be taken in order to change the New York political system and restore the integrity of the State. If nothing changes, nothing changes; public corruption and political misconduct will continue to run rampant within our state and voters will only have themselves to blame.
In a clear, well-reasoned decision, the DC Court of Appeals has held that a prosecutor’s ethical responsibility to disclose exculpatory evidence is significantly broader than the Brady standard and does not contain a “materiality” requirement. While the decision is binding only on attorneys who practice in DC it will cover many federal prosecutors.
The case came to the court based on a report and recommendation of the Board on Professional Responsibility that had recommended a 30-day suspension for a federal prosecutor who violated Rule 3.8(a) of the DC Rules of Professional Conduct. The charges arose in a felony assault case involving a drive-by shooting where the defendant filed an alibi notice. The issue was the reliability of the identification; significantly, what the prosecutor failed to disclose was that the victim had said after the shooting, at the hospital, was that he did not know who shot him. The first trial ended in a mistrial when the jury could not agree. Although after the first trial a subsequently assigned prosecutor revealed the statement, the second trial ended in a conviction.
Among his various arguments, Kline argued that his ethical obligation was co-extensive with his Brady obligation. The court soundly rejected this argument, and its explanation for why post-conviction materiality cannot be used to judge ethical conduct is notably clear and to the point. The court also surveyed the various conflicting decisions nationwide about whether the two standards are co-extensive. Meanwhile, because of a confusing sentence in the commentary to the DC rule, the court determined not to sanction the prosecutor.
- In Re Andrew J. Kline, No. 13-BG-851 (D.C. Apr. 9, 2015).
- Alec, DC: Appeals Court Holds Ethical Duty to Disclose is Broader than Brady Standard, The Open File (May 5, 2015).
The American Bar Association has published its Fourth Edition of the ABA Criminal Justice Standards for the Prosecution and Defense Functions, adopted by a resolution 107D in February 2015. This edition supplants the Third Edition (1993) of the ABA Standards for Criminal Justice: Prosecution Function and Defense Function. Among the new provisions are the following:
For the Prosecution
- Standard 3-1.3 – The Client of the Prosecutor – explicitly stating that a victim is not a prosecutor’s client.
- Standard 3-3.6 – When Physical Evidence with Incriminating Implications is Disclosed by the Defense – stating that “[w]hen physical evidence is delivered to the prosecutor consistent with defense function standard 4-4.7, the prosecutor should not offer the fact of delivery as evidence before a fact-finder for purposes of establishing the culpability of defense counsel’s client.”
- Standard 3-4.3 – Minimum Requirements for Filing and Maintaining Criminal Charges – stating in subsection (d) that “[a] prosecutor’s office should not file or maintain charges if it believes the defendant is innocent, no matter what the state of the evidence.”
- Standard 3-5.c – The Decision to Recommend Release or Seek Detention – recommending that prosecutor should favor pretrial release over detention unless detention is necessary to protect individuals or the community. Additionally, prosecutor should remain open to reconsideration of pretrial detention.
- Standard 3-5.8 – Waiver of Rights as Condition of Disposition Agreements – requiring a prosecutor not to condition a disposition agreement on a waiver of the right to appeal the terms of a sentence, on any waiver of post-conviction claims, or a complete waiver of the right to file habeas corpus petition, fully incorporating the DOJ policy banning waiver of ineffective counsel claim as a condition to guilty plea, as discussed here.
- Standards in Part VIII Relating to Appeals and Other Conviction Challenges
- Standard 3-8.1 – Duty to Defend Conviction Not Absolute – requiring prosecutor to exercise one’s own independent professional judgment and discretion and thus allowing the prosecutor to decline prosecution if she “believes the defendant is innocent or was wrongfully convicted, ….”
- Standard 3-8.3 – Responses to New or Newly Discovered Evidence or Law – placing emphasis on seeking justice by requiring prosecutors offices to develop policies and procedures to address situations in which the prosecutor learned of credible evidence ‘creating a reasonable likelihood that a defendant was wrongfully convicted or sentenced or is actually innocent, ….”
- Standard 3-8.4 – Challenges to the Effectiveness of Defense Counsel – requiring the prosecutor to intervene if he observes that defense counsel may be ineffective.
- Standard 3-8.5 – Collateral Attacks on Conviction
For Defense Counsel
- Standard 4-2.3 – Right to Counsel at First and Subsequent Judicial Appearances – stating that “[a] defense counsel should be made available in person to a criminally-accused person for consultation at or before any appearance before a judicial officer, including the first appearance.”
- Standard 4-5.4 – Consideration of Collateral Consequences – placing a requirement on the defense counsel to “identify and advise the client of collateral consequences that may arise from charge, plea or conviction.”
- Standard 4-5.5 – Special Attention to Immigration Status and Consequences – taking standard 4-5.4 one step further by incorporating the decision of Padilla v. Kentucky, 559 U.S. 356 (2010) (slip opinion copy) (requiring defense counsel to advise his client of potential immigration consequences as a result of guilty plea).
- Standard 4-9.4 – New or Newly-Discovered Law or Evidence of Innocence or Wrongful Conviction or Sentence – placing a duty on the defense counsel to act if she “becomes aware of credible and material evidence or law creating a reasonable likelihood that a client or former client was wrongfully convicted or sentenced or was actually innocent.”