In yet another example that New York isn’t all that different from the rest of the country, Bill Grady, the Dutchess County District Attorney decided that it wasn’t all that special to be a prosecutor, and so he decided to let the complaining witness use her own private lawyer to prosecute a case when it wasn’t worth it to put his own assistants on the case. According to the New York Law Journal :
Dutchess County District Attorney William V. Grady’s designation of a private attorney hired by complainant Jonathan Dallar to prosecute two second-degree harassment charges that Mr. Dallar filed against Patricia Sedore.
At an initial appearance before Fishkill Town Justice Harold D. Epstein, an assistant Dutchess County district attorney advised the court that Mr. Grady’s office would not prosecute the case. Mr. Grady said in an interview that he does not have the resources to prosecute violations, except those involving domestic violence or school incidents.
Mr. Dallar retained a private attorney in Poughkeepsie, Adam G. Kirk, to prosecute the complaint against Ms. Sedore and Mr. Grady formally designated Mr. Kirk as prosecutor.
Obviously, it made sense to Grady. Fortunately, it didn’t to the Appellate Division, Second Department, which held that this was an improper and unethical delegation of power in Matter of Sedore v. Epstein.
Canons of professional ethics identify an inherent conflict between the role of attorney and that of prosecutor, the Appellate Division, Second Department, ruled last week in Matter of Sedore v. Epstein, 2007-02296. An attorney’s obligation is to advocate for his client while the prosecutor’s obligation is to the public and the fair dispensing of justice, the panel noted, citing the Code of Professional Responsibility EC 5-1 and DR 7-101(A)(1).
While noting that there were certain situations where a District Attorney could properly delegate his authority, such as cases involving a conflict of interest or using police officers to prosecute in local courts, this one was just off the deep end.
As has been discussed frequently with regard to the victims rights advocates, criminal prosecutions are between the government and the defendant, and do not vindicate individual rights and interests. That’s why we have a civil court.
An attorney for a complainant represent the complainant. A prosecutor represents the interests of society, and always wins since society has no interest in convicting the innocent (okay, but that’s how it’s supposed to work). Clearly, the two approach a prosecution with different ethical obligations.
Does anybody else wonder if Dutchess County District Attorney Grady was aware of any of this?