When a witness in a homicide investigation lawyers up, what are the prosecutors to do?  In People v. Carmela Magnetti, 06-1047-02, Westchester County District Attorney’s Office Investigator Peter Becerra came up with what he considered to be a brilliant answer.

It just happened that he was working with the mother of the witness, Gloria Magnetti, in a separate investigation in what is described as a “criminal usury operation,” where she was the willing informant.  Her daughter, Carmela, provided what the police believed to be a false alibi for Anne Travato in the murder of Patricia Mery.

When it became clear that the DA wasn’t happy with Carmela’s statement, she retained counsel and, as is prone to happen to witnesses who don’t give up the information desired, was indicted for murder.  DA Investigator Becerra then embarked on a campaign with Momma Magnetti to disparage, denigrate and ridicule the lawyer her daughter hired. 

Over a 13 month period, he not only made dire predictions of what was going to happen to Carmela, but disparaged the competency, fees and physical appearance of counsel.  The point of this effort was to get Gloria to convince her daughter to get a new lawyer who would allow her to cooperate with the DA’s office against her co-defendant, Travato.  Gloria, who trusted Investigator Becerra, kept pushing her daughter to dump her lawyer throughout this period.

In June of 2007, Becerra was directed to stop this campaign against the lawyer, but by then the damage to the relationship between Carmela and her attorney was done.  He moved to be relieved 2 months later.

To the chagrin of the prosecution, Carmela’s newly appointed attorney didn’t march has down to the DA’s office as hoped, but instead made a Clayton motion, to dismiss the murder indictment in the interests of justice based upon extreme law enforcement impropriety.

In a lengthy and detailed decision, as yet unavailable online, Westchester County Supreme Court Judge Richard Molea found that

With respect to “any exceptionally serious misconduct of law enforcement in the investigation, arrest and prosecution of the defendant” as enumerated in CPL 210.40(1)(e), the Court finds that Criminal Investigator Peter Becerra of the Westchester County District Attorney’s Office pursued a relentless campaign of exploitation against the mother of the defendant over a thirteen month period in an effort to utilize her to persuade the defendant to cooperate with the People in the prosecution of her co-defendant.

That seems pretty clear.  But what do you do about a 13 month concerted effort to interfere with the relationship between attorney and client?  Unfortunately, nothing.

The motion lacked an affidavit from Carmela alleged how she was prejudiced by Becerra’s actions, and the Court found that she was represented by competent counsel at all time, specifically noting that the campaign to manipulate Carmela and get her to cooperate never worked.  Motion denied under the “no harm, no foul” doctrine.

From the perspective of a criminal defense lawyer, this decision, though recognizing that the DA Investigator’s actions were “undeniably inappropriate and objectionable,” is a travesty.  It provides a direct incentive for law enforcement to actively undermine the right to counsel by interfering with the attorney-client relationship.

Why?  If the District Attorney doesn’t get its intended benefit, then the deliberate effort to violate the defendant’s 6th Amendment rights is of no consequence for lack of prejudice.  On the other hand, if they are able to manipulate the defendant into cooperating, then the issue is never raised because it’s always the defendant’s choice to change counsel, as well as change strategies and become a cooperator.  And again, the defendant suffers no prejudice because she’s doing what she has elected to do, become a snitch, and would have no reason to raise her complaint to the court.

Should the intentional interference with the right to counsel, even in the absence of harm to the defendant, be worthy of remedy?  It certainly seems so, for no better reason than to deter unconstitutional law enforcement conduct, much as the exclusionary rule precludes admission of evidence obtained unconstitutionally, not because of innocence.  Unfortunately, the choice made in this decision is to deem the worthiness of the right to counsel of only limited importance, therefore subject to harmless error analysis.

While the Magnetti case involves an unusual quirk, with Becerra involved with Gloria Magnetti on another matter, the potential for law enforcement to try an end run around the defendant by going to family members is always available.  While the relationship of trust between Becerra and Gloria Magnetti certainly impacted on his degree of exploitation, the families of criminal defendants almost always grasp at straws to find ways to help, and would be easy targets for law enforcement to manipulate.  If nothing else, it wouldn’t hurt cops to try.  So the potential for this to happen routinely is certainly omnipresent, and the incentive is now clear.

On the bright side, note that the newly assigned counsel did exactly the opposite of what the DA sought.  Instead of marching the defendant down to the DA’s office to cooperate, he asserted her rights by moving for dismissal.  It was a valiant effort even though it brought no beneficial result.

Update:  Left out a few things the first time around, so now I’m back to clean up my mess.  While the Magnetti decision is not available online, I have a pdf copy of it for anyone who demands proof that I’m not making this stuff up (Orin  Kerr?)  I’m sure that someone could easily upload this pdf and make it readily available to all, but that would require a level of computer expertise that I lack, and so it remains with me unless someone wants to host it for me.

More importantly, the New York State Association of Criminal Defense Lawyers filed a letter brief as amicus in this case, brilliantly prepared by Richard Willstatter, my third generation successor chair of the amicus committee (I was chair in the halcyon days of Willie Horton).  While the Westchester DA vehemently opposed the court’s consideration of the  amicus submission (using legal arguments like “Willstatter dresses funny”), on the ground that it was too persuasive, Judge Molea in reciting the papers upon which his decision was based notably omitted that of amicus.  That’s okay.  We know he read it anyway.