A few days ago, I posted about the partial reversal in People v. Flores.  Some other blogs pick up on it, like Windypundit, and  Newsday published a story on the case.  It took a few days, but then Mike Cernovich sent the link over to Orin Kerr at the Volokh Conspiracy, and suddenly there was a huge flurry of interest in the case.  Apparently, Volokh has a few more readers than Simple Justice.  Go figure.

While it’s great that word about this systemic fiasco is spreading, there is a proportionate spread of misapprehension as the story broadens to lawyers from other jurisdictions and non-lawyers, and consequential trend toward “solutions” that don’t apply.

First, make no mistake about it, everyone connected with the Flores trial has a finger deep into this failure.  From prosecutor to defense lawyers to judge to court clerk, each one played an important role in securing a failure.  For those who want to blame one side or the other, there are no heroes in this trial (except possibly the data input clerk who spilled the beans).

Second, for those screaming that someone should notify the “state bar association,” welcome to New York.  The New York State Bar Association plays no role in attorney licensing or discipline, and is merely a membership association with exorbitant dues.  Attorney discipline is handled by the Appellate Divisions, of which there are 4 Departments covering different geographic areas in New York State.  Each has its own disciplinary committee, that investigates and recommends sanctions.  The process is private until such time as a public sanction (either public censure or disbarment) is issued.  It can’t be assumed that the Second Department has or has not referred the attorneys in this matter to the committee, and there’s no way to find out since it is a confidential process. 

That said, complaints to the disciplinary committees with regard to misconduct by prosecutors has routinely been dismissed out of hand.  One complaint, against former Westchester District Attorney and bride of a convicted felon, Jeanine Pirro, based upon improper media comments immediately following an arrest (meaning that there was a ton of indisputable evidence of impropriety) was unceremoniously tossed.  So the many outraged commenters may be filled with righteous indignation, but unless you happen to sit on the appropriate disciplinary committee, don’t expect much.  This, unfortunately, reflects another systemic problem.

And for those of you still reading, now a little New York law.  Flores was charged with two counts of Murder in the Second, one under the theory of intentional murder and another under the theory of depraved indifference murder.  During the pendency of the case, the Court of Appeals (New York’s highest court) decided People v. Payne.  This was a blockbuster decision that changed the legal landscape for murder prosecutions.

The Payne decision held that “depraved indifference,” which had invariably been charged together with intentional murder as a backup, could almost never co-exist with an intentional murder because it reflected a distinct mental state.  Before Payne, the view of depraved indifference was that it related to the circumstances surrounding the murder rather than the mental state of the defendant.  This blew a major hole in murder indictments across New York, where depraved indifference was charged to cover a potential failure of proof on intent and provide a compromise to a jury.  Mind you, it was still Murder in the Second Degree, same sentence and same impact, but juries tend to like to compromise because it makes them feel more reasonable.

Also, the current District Attorney of Nassau County, New York, Kathleen Rice, has come under attack for what happened here.  Indeed she should, but only to the extent of decisions made while she was in office.  When this case was tried, the District Attorney was Denis Dillon, a former Democrat turned Republic in a county where the last remaining Republican machine held ironclad control until broken by Tom Suozzi in 2001.  Partisan politics in Nassau County is vicious, and one should not put too much stock in any allegations by one side against the other. 

Kathleen Rice was a former Kings County (Brooklyn) Assistant District Attorney who had moved on to the United States Attorney’s office in Philadelphia.  She was plucked from obscurity by Suozzi to run against District Attorney-for-life Dillon, and rode Suozzi’s coattails to victory.  While she played no role during the period when Flores was tried and sentenced, her office made the decision to pursue an affirmance on appeal of the Flores conviction.  But more than that, knowing that appellate attorney Dick Barbuto would not be appearing for oral argument, Rice’s office still appeared and argued.  This never happens.  Except in this case.

Finally, there has been some criticism of Barbuto for his not “finding somebody to argue” when he couldn’t because of his loss of sight.  This criticism is misguided.  Dick Barbuto did not learn that the Appellate Division would not adjourn oral argument until one day before, when he was told that “oral argument is a privilege, not a right, and the Court doesn’t need argument anyway.” 

Despite the fact that Barbuto was going through his twelfth eye surgery to regain his sight (not that nice lasik stuff, but real eye surgery with scalpels and needles), he nonetheless considered having someone try to pick up the pieces and argue the case.  Aside from the logistical problem of getting briefs to someone for argument the next day, having them read and familiarize themselves with the case and the law, and prepare for argument, a strategic decision was made that the appellate brief for Flores was very strong and the Second Department was very rarely moved by oral argument, its refusal to permit an adjournment, under the very peculiar circumstances presented, would create an additional appellate issue in the event of an affirmance.  Thus, while it wouldn’t be expected that a commenter on a blog would either know this much, or think this hard, about what to do, Dick Barbuto bears no blame here.

UPDATE:  I’ve just learned that there is one factual error in my original post and the Newsday story on this case.  The original ADA, Martin Meaney, was demoted prior to trial and was replaced by ADA Greg Turkin, who was subsequently fired when Kathleen Rice took office.