For The Third Time, Don’t Do It Again!

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. 

Herrick’s decision would be reversed in a 3-2 ruling by the Appellate Division based in Albany. It found it would “establish a dangerous precedent” if defendants could disqualify prosecutors by suing them and claiming the prosecutor has a conflict of interest.

After all, imagine how dangerous it would be if rogue prosecutors were held accountable, and their abuse of office was the subject of scrutiny.  They might not feel free and unfettered to do whatever they please, with neither oversight nor consequences. The criminal justice system would collapse.

And still the story isn’t complete.  Judge Herrick’s decision came only after a federal court in Florida denied Soares’ summary judgment motion, meaning that the case would proceed to trial and had merit.  Not so fast.

In November, the 11th Circuit Court of Appeals in Atlanta overturned a district court judge’s decision that had put the pharmacy operators’ civil claims against Soares on track for a trial in Orlando. The appeals court said no evidence supported the pharmacy operators’ claims of constitutional violations, including conspiracy and unlawful arrest.

But at least we can take comfort in the fact that Albany County District Attorney David Soares was told, in very stern language, to never, and they really mean never this time, do it again. For the third time. Or else.

H/T Our hinterlands correspondent, Kathleen Casey

7 thoughts on “For The Third Time, Don’t Do It Again!

  1. Kathleen Casey

    Why if this were this were you, or me, or just about anyone proven to have violated the same rules after an admonition history, they would let us stay in the game. Like the DA. Wouldn’t they? ; ]

  2. A Voice of Sanity

    Quote: “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.”

    And this WASN’T about Gloria Allred? Color me astonished!

  3. SHG

    And what in the world does Gloria Allred have to do with this post? Not that you want an actual answer, but she’s a CA lawyer, not NY. Wrong coast.

  4. CRC

    I think he was referring to Ms. Alred being a media whore, who is always in front of the cameras.

  5. SHG

    I’m sure he was, and if AVOS wants an opportunity to take a shot at Ms. Allred (who most assuredly deserves it), he’s free to start a blog and write about her. But this post isn’t about Ms. Allred, and it isn’t an opportunity for AVOS to use my comment section to smack people he dislikes.

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