The tale of judge against former judge, not to mention judges behaving badly, all about whether Queens Acting Supreme Court Justice Joel Blumenfeld is permitted to consider the ethics of former Judge, now Queens District Attorney, Richard Brown’s scheme to add his own spin right to Miranda warning right before arraignment and provision of counsel, is over.
 
Brown’s writ of prohibition is denied. Blumenfeld can judge.

This should be a huge win, a great day for judicial independence.  Yet it doesn’t feel right.

First, another description of the prosecution’s scheme to undermine Miranda, just because it’s always fun to spread the word:

Under the Program, the District Attorney’s ADAs and DIs interview individuals awaiting arraignment on felony charges, in a room equipped with visible videotaping equipment. An ADA or DI reads the arrestee a preprinted “Interview Form,” which has been completed to be specific to the arrestee’s case. The arrestee is told the date and time, that he or she is “in the interview room of the Queens County District Attorney’s office in Central Booking, Queens,” the names of the other people in the room, and their status as ADAs or DIs from the District Attorney’s Office. The arrestee is then told that he or she has been charged with certain specified crimes, as well as the dates, times, and locations of those crimes.

The defendant is then told the following:

“In a few moments I will be reading you your rights. After that, you will be given an opportunity to explain what you did and what occurred on (date) at (time) at (location) , in Queens County.

“If you have an alibi, please give us as much information as you can, including the names of any people you were with.

“If your version of the events of that day differs from what we have heard, this is your opportunity to tell us your story.

“If there is something you would like us to investigate concerning this incident, you must tell us now so that we can look into it.

“Even if you have already spoken to someone else, you do not have to talk to me.

“This will be the only opportunity you will have to talk to me prior to your arraignment on these charges.

“This entire interview is being recorded with both video and sound.”

Cool, right?  And effective too.  And outrageous?  Well, there’s the problem.  While the Appellate Division, Second Department, in an unusual signed decision by Justice Ruth Balkin, denied Get Down Brown’s petition, it wasn’t because Justice Blumenfeld is fully entitled to consider whatever shenanigans Brown’s pulling to coerce confessions or undermine Miranda.  Nope, the decision is procedural, that

Although the Court of Appeals has declined to detail the several categories of excesses of jurisdiction and power arising in criminal actions that merit the “abrupt intervention of prohibition” (Matter of State of New York v King, 36 NY2d at 64), that Court has observed that those categories always “invoke . . . unlawful use or abuse of the entire action” or proceeding (id.), and “implicate the legality of the entire proceeding” (Matter of Rush v Mordue, 68 NY2d 348, 353). This situation is to be “distinguished from an unlawful procedure or error in” the action or proceeding “itself related to the proper purpose of” the action or proceeding (Matter of State of New York v King, 36 NY2d at 64; see Matter of Johnson v Torres, 259 AD2d 370).

Furthermore, prohibition is never available merely to correct or prevent a mistake, error in procedure, or error in substantive law (see Matter of Oglesby v McKinney, 7 NY3d at 565; Matter of Morgenthau v Altman, 58 NY2d at 1058), even when such errors may be “grievous” (La Rocca v Lane, 37 NY2d at 579), or “egregious” (Matter of State of New York v King, 36 NY2d at 62). The orderly administration of justice requires that correction of litigation errors be left to the ordinary channels of appeal or review (see La Rocca v Lane, 37 NY2d at 579).

Deeply moving stuff, right?  Legally correct, for sure, but somewhat less than inspirational.  And then there’s this:

Inasmuch as we conclude that prohibition does not lie, we need not address the second tier of the analysis, namely, whether prohibition should be granted as a discretionary matter. Nonetheless, we find it appropriate to note that the District Attorney is, of course, legitimately concerned with the reputations of his office and the public servants who are his ADAs, and the extent to which any ruling Justice Blumenfeld may eventually make might affect those reputations.

No doubt you are as moved as I am by the court’s concern for the reputation of public servants who are ethically challenged by their office’s effort to snag them moments before they can see a lawyer for the first time.  Who wouldn’t be concerned?

Then again, I might also be concerned about the defendants whose constitutional right to remain silent, to counsel, and those other cool technicalities, are protected.  Maybe even more concerned than I am about the prosecutors’ reputations.

Still, Justice Joel Blumenfeld is now free to rule, and I can only hope that his decision will do what Justice Balkin’s doesn’t do well enough: Support and defend the Constitution.