Any criminal defense lawyer who has had the pleasure of being involved in a case subject to media scrutiny has heard the judge’s admonition to keep his yap shut to avoid prejudicing the jury pool. These warning, by definition, come after the District Attorney has held a press conference explaining, without contradiction, about the great glory of nailing the evil defendant, since this comes before the judge gets his hands on the case. The myth is created, and the defense better do nothing to screw it up.
But once there is a judge involved, and should that judge inadvertently follow the law and make a ruling that favors the defense, what’s a prosecutor to do? Bingo! Put out a press release! And that’s exactly what Albany County District Attorney P. David Soares did, ripping County Court Judge Stephen Herrick a new one for ruling against him.
“Judge Herrick’s decision is a get-out-of-jail free card for every criminal defendant in New York State. His message to defendants is: ‘if your DA is being too tough on you, sue him, and you can get a new one.’ The Court’s decision undermines the criminal justice system and the DA’s who represent the interest of the people they serve. We are seeking immediate relief from Judge Herrick’s decision and to close this dangerous loophole that he created.”
The problem stemmed from Soares’ being sued by Florida defendants for being indicted in New York, after the federal court ruled against Soares’ motion for summary judgment. Given that the case would be proceeding in federal court, Judge Herrick’s determined that a conflict of interest existed, dismissed the indictments with leave to represent, and appointed a special prosecutor.
And Soares responded with his press release.
The grievance against Soares, which started in the Third Department and was transferred to the Fourth (presumably to remove the appearance of conflict given Soares’ position and his having fired the Third Department’s chief disciplinary counsel from the DA’s office when he took office) concluded the obvious :
We conclude that respondent has violated rule 8.4 (d) of the Rules of Professional Conduct (22 NYCRR 1200.0) – engaging in conduct that is prejudicial to the administration of justice. Inasmuch as Judge Herrick appointed a special district attorney and granted that prosecutor leave to re-present the dismissed indictment, we conclude that respondent’s statement that Judge Herrick’s determination constituted a “get-out-of-jail-free card for every criminal defendant in New York State” was objectively false. For the same reasons, we conclude that his statement that Judge Herrick created a “dangerous loophole” was reckless and misleading.
If only it were true that it was that easy to rid oneself of a wayward prosecutor. But it’s not, and even a butthurt District Attorney doesn’t get to make public statements like this. At least about judges. If it was about a criminal defense lawyer, it would be another story. But I digress.
A win! Score one for the good guys! A district attorney called on the carpet for making outrageous, false and misleading statements doesn’t happen everyday. So what was done about it? Did he get Nifonged? Was he required to stand in the public square in stocks? Did they force him to walk the courthouse hallways with a sandwich sign that said, “I’m a lying District Attorney who can’t keep his mouth shut?” Well, not exactly.
We have also considered,however, respondent’s disciplinary history, which includes two letters of admonition for making improper and prejudicial public statements regarding pending criminal matters. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured.
Say what? Two prior letters of admonition for making improper and prejudicial public statements. Apparently, that didn’t work too well at getting Soares to shut up and stop doing the dirty. So if two prior letters of admonition didn’t work, censure is the answer? Because telling Soares he really, really has to stop making false, misleading and prejudicial statements to the media is the answer?
And yet, the story isn’t yet complete.