New Trial Sought in NY State Corruption Case, AG Blasted for Massive Conflicts

New Federal Trial Requested in NY State Corruption Case, AG Blasted for Massive Conflicts

Christine C. Anderson yesterday filed a Motion for a New Trial in Manhattan's federal district court. The case is again before U.S. District Court Judge Shira A. Scheindlin after an October 29, 2009 jury found against Anderson. The motion for a new trial includes startling revelations including the fact that the District Court failed to take appropriate action after learing that there had been threats made against at least one witness in the federal proceeding. The largest problem for those involved appears to be the little tested issue of the usually-accepted widespread conflicts of interest inside the New York State Attorney General’s office.

Highlights from the motion for a new trial include:

• Apparent abuse of discretion by the District Court Judge.
• A new trial to “avoid a miscarriage of justice.”
• Correction: “the district court possesses the power to rectify its own mistakes in the period immediately following the entry of judgment.”
• “Irregularity of Proceedings: The State of New York Attorney General's Representation of Defendants Unduly Prejudiced Plaintiff and Denied Her Due Process Rights.
• Anderson was confronted with an unquestionably unfair set of circumstances as the defendants were defended by the New York State Attorney General; and while the plaintiff charged the defendants with serious violations of law, the Attorney General stood before the jury defending these very same actions as proper and within the law. This arrangement seriously prejudiced plaintiff Anderson, as jurors could and most likely did conclude that the State of New York supported fully the conduct of the defendants.
• Not only did the Attorney General’s representation of the defendants unduly prejudice the Anderson, it also raised serious conflict of interest issues with respect to the defendants themselves. To protect their own rights, each of the defendants should have had their own attorneys in order to permit them to cross claim or make admissions.

• VIOLATIONS OF ETHICS RULES: Under New York State and federal conflict of interest rules, each of the defendants must be free to undertake these independent actions. To do so, they must have their own counsel. (See NYS Code of Professional Conduct Cannon 5 Conflict of Interest Rules.) The Attorney General as a state attorney is bound by these rules as well. New York State law requires that the attorney who violates these safeguards to be immediately removed from the case.
• CONFLICT - As a result of these conflict of interest issues, the Attorney General cannot properly represent the defendants, either as a group or individually. Each defendant must have the right to cross-claim against the others, and to bring a counterclaim against the State. These actions most certainly could not be undertaken in a case where the Attorney General represents all the named defendants. Without question, the Attorney General violated its ethical rules and the public trust in undertaking to represent all of the defendants.

• The involvement of the New York Attorney General in refuting plaintiff's allegations, which involved serious violations of federal and state law and ethical standards, and in presenting the case of each defendants, denied plaintiff's due process and equal protection guarantees, and right to a fair and impartial trial.

• WHY DIDN”T THE NYS ATTORNEY GENERAL INVESTIGATE?? - The conflict here is particularly acute given the nature of the claims brought by plaintiff Anderson. Plaintiff’s charges warranted an independent investigation by the New York State Attorney General Office to review the basic claims given that Anderson was formerly a Departmental Disciplinary Committee staff attorney with considerable experience. The fact is that these are not allegations from a lay person.

• While at the DDC, Plaintiff Anderson was charged with investigating cases involving possible criminal and civil misconduct. She carried out her duties as a duly authorized officer of the Court. The New York State Attorney General Office was therefore obligated to protect her and to investigate her claims of serious misconduct against the named parties. For no reason, the New York State Attorney General Office failed to do so.

• The Attorney General is a publicly funded arm of the State. It was conflicted from the outset of this case because it could not possibly defend any of the defendants, while simultaneously investigating plaintiff ’s claims of serious ongoing misconduct by the defendants. Indeed, no explanation has ever been provided as to why the Attorney General did not represent plaintiff Anderson against any of the original defendants. This was itself a misappropriation of public funds by a state investigatory agency with prosecution powers.

• Federal law mandates that a special prosecutor be substituted into the case, and this was not done. The actions of the Attorney General here confused, misled and confounded the jury, by creating a false impression that the acts were officially sanctioned by the state.

• Christine Anderson’s allegations have substantial impact on the public, the bench and bar, and cannot be ignored by the New York State Attorney General Office just because they were motivated to defend this lawsuit. This serious conflict demanded independent counsel for the defendants as a matter fairness and high ethical conduct to all involved, particularly to Christine Anderson.

• Having denied independent counsel to the defendants, the Attorney General prejudiced plaintiff by making it appear to the jury that the State of New York and the New York State Attorney General Office supported defendants’ conduct. This was a burden Christine Anderson could never overcome and, at a minimum, warrants a new trial.

• The Court was concerned about the aforestated conflict of interest and in one of its last instructions to the jury, the Court warned the jury not to draw a negative inference adverse to the defendants for their joint representation by the New York State Attorney General Office. That instruction was injurious to the plaintiff, Christine Anderson, in that it prejudiced the jury against her and in and of itself warrants a new trial.

• It was one of the last instructions to the jury and was thus ingrained in the minds of the jury as a lasting impression. Furthermore, as one of the last instructions to the jury, it elevated its importance over and above all prior instructions as something that had to be considered in deference to all else.
• There was no countervailing instruction to the jury not to draw a negative inference of the joint representation by the New York State Attorney General Office adverse to the plaintiff. This failure prejudiced the jury against the plaintiff by implying at a minimum, that the state supported all of the defendants’ conduct and found that it was within the bounds of the law.
• By the Court issuing the jury instruction not to draw a negative inference adverse to the defendants for their joint representation by the New York State Attorney General Office, the court preserved the argument to be raised in this motion and/or appeal.

• Allowing all of the defendants to be represented jointly by the same counsel and by the New York State Attorney General Office created an impermissible conflict of interest. Indeed, the conflict was so strong, that had the jury ruled against any one or all of the defendants, they would have been entitled to seek a new trial for impermissible conflict of interest, as they would be entitled to their own independent counsel.

• The court is thus faced with the fact any unsuccessful litigant in this case could be expected to move for and would be entitled to a new trial because of the impermissible conflict of interest, as all of the defendants are required to have their own independent counsel, and to not be represented by the New York State Attorney General’s Office.

• The American Bar Association's Code of Professional Responsibility elaborates on the duty of a public prosecutor such as the New York Attorney General to seek justice as follows: "This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all ...."

• A prosecutor's duty of neutrality is born of two fundamental aspects of his employment. First, the prosecutor, in this case the Attorney General, is a representative of the sovereign, and consequently must act with the impartiality required of those who govern. Second, the Attorney General can at all times call upon the vast power of the government, and therefore must refrain from abusing that power by failing to act evenhandedly.

• These key duties are not limited to criminal prosecutions, but must also be observed in civil cases as well. These safeguards are included in the ABA Code. "A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results."

• In the present case, the Attorney General was under the ethical duty to withdraw in order to preserve plaintiff's right to a fair and impartial trial. In a case such as this, not only is the Attorney General's neutrality essential to a fair outcome for the plaintiff, it is critical to the proper function of the judicial process as a whole. Our system of justice relies for its validity on the confidence of society. Without a continuing belief by the people that the system is just and impartial, the concept of the rule of law cannot survive.

• The New York State Attorney General is a public official elected by statewide ballot . The American Bar Association's Code of Professional Responsibility addresses the special considerations applicable to a lawyer who is also a public official as follows: "A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties." The government's investigative and prosecutorial interests must be balanced against the public interest in insuring that the individuals and organizations receive effective representation, and are accorded their full constitutional rights and protections.

• There are at least two reasons why a court should satisfy itself that no conflict exists or at least provide notice to the affected party if one does. First, a court is under a continuing obligation to supervise the members of its Bar.(district court obligated to take measures against unethical conduct occurring in proceedings before it). Second, trial courts have a duty "to exercise that degree of control required by the facts and circumstances of each case to assure the litigants of a fair trial."

• Occupying a position of public trust, the Attorney General, as any public prosecutor is 'possessed ... of important governmental powers that are pledged to the accomplishment of one objective only, that of impartial justice.' The duty of a government attorney has been characterized as 'a sober inquiry into values, designed to strike a just balance between the economic interests of the public and those of the landowner,' is of high order."

• Central to the issue of preventing prejudicial influence of government attorneys on court proceedings, it is common for states to adopt statutes or regulations that prohibit those holding the office of Attorney General, as well as their deputies and staff attorneys, from participating as attorneys in private litigation matters. The reason for adopting these restrictions is most obvious. For the Attorney General or any member of the staff to participate in a civil trial involving a private litigant will create the prejudicial inference that the state has reviewed and approved the position advocated by the government attorney. Such an inference can and likely will influence the outcome of the matter to the detriment of the opposing party. It is for the stated reasons that no Attorney General or staff member should be permitted to represent a private litigant in any adversarial proceeding. Only such an outright prohibition will properly preserve the standards of fairness and impartiality guaranteed to all litigants under federal and state constitutions. The present lack of statutory and/or ethical policy guidelines barring the participation of state law officers from representing private litigants in civil proceedings which must be addressed by courts and policy makers.

• Irregularity of Proceedings: Confusing, Misleading and Prejudicial Instructions to the Jury.
• The Court issued detailed Verdict Sheets to the jury addressing the plaintiff's allegation of retaliation and the related issues of deprivation of a federal right and plaintiff's acts of speech. During the jury's deliberation, the foreman submitted a question to the court for review. The question (SEE EXHIBITS) sought the Court's guidance with respect to instruction number 1b which was described as “ambiguous.” The Court provided an answer (SEE EXHIBITS) to the question which addressed the fact that the plaintiff had made certain statements rather than the way in which the “DDC responded (investigated) properly to the statements [plaintiff] made.”

• In answering the jury, the court addressed only the initial question, which dealt with the critical issue of the lawsuit, i.e., whitewashing. This key issue was specifically removed from consideration by the jury, when the Court circled the question as to whether the plaintiff had made statements to her superiors and not whether those statements averred that the DDC was not diligently prosecuting allegations of misconduct by respondent attorneys.

 Having circled that question for consideration, the succeeding questions were dealing only with plaintiff's statements [not defined] and NOT with issue of whitewashing. Thus, the succeeding questions were asked in a vacuum and expected to be answered in a vacuum.

 Also, by structuring the questions as the court did, the jury never reached other issues of retaliation or damages, even after it found in plaintiff’s favor in Question 1. The jury was confused by the unclear, very puzzling and convoluted nature of the instructions.

• This confusion on the part of the jury resulted in a verdict which is in a word repugnant.
• By eliminating whitewashing from Question 1, the court effectively excised the key gravamen of the complaint , i.e., retaliatory discharge, as a result of plaintiff's complaints of whitewashing and corruption. This constitutes judicial error of the highest order.

• Juries only get to see and use the instructions for a short time, thus it is crucial that they be clear and understandable to the laymen and laywomen. The court and counsel have the luxury of days to craft and understand the instructions as professionals. The instructions presented in this case are unclear, quite confusing and simply impossible to apply to the facts adduced at trial.
• There is also no record that the role of the Attorney General as defense counsel was properly and adequately explained to the jury. This also constitutes another reversible error by the Court which could have been rectified.
• Newly Discovered Evidence

• The court gave the jury above-referenced instructions and its members adjourned to the jury room to deliberate at approximately 1:25 pm on Thursday, October 29. After the jury left the courtroom, Judge Scheindlin first announced that she had denied the defendants’ pending motion for a directed verdict. She next stated words to the effect that she found that , "....Cahill was aware of the whitewashing allegations..." The judge read this statement related to defendant Cahill’s conduct into the record as part of her order denying defendant's directed verdict. This fact alone requires a new trial.
• In addition, Courts have an obligation to report and order investigation into official and at times criminal misconduct. This is a duty of the Court. There is no record to date as to any action having been undertaken by the Court regarding this central question. The Court’s finding of culpability on the part of Defendant Cahill constitutes newly discovered evidence, which directly supports the fundamental allegations of Plaintiff.

• Clearly the newly discovered fact that defendant Cahill, as the head of the DDC and supervisor of the other named defendants, had full knowledge of whitewashing activities would in all likelihood have changed the outcome of the case. This central fact establishing the liability of all named defendants could not have been discovered earlier and is not merely cumulative or impeaching.

• The new evidence establishes that in the view of the Court, Defendant Cahill, the head officer of the DDC and the supervisor of Cohen, had full knowledge of the practice of whitewashing as alleged by Plaintiff, leading to the parallel conclusion that whitewashing was accepted as a common practice by the defendants, and presumably other staff members of the DDC. Had such facts been confirmed during the trial stage, the jury would have come to know and understand the illegal activities that were accepted as everyday practice by the DDC staff, a finding totally consistent with a main element of Plaintiff’s case.

• The Court’s statement after the close of trial accepting the establishing the whitewashing activities by Defendant Cahill must be found to constitute grounds for granting the instant motion.
• Witness Tampering – Threat on Witness in a Federal Proceeding

• Based on information submitted in the proceeding, the court is aware that one of Plaintiff’s witnesses, DDC staff attorney Nicole Corrado, was confronted by her DDC supervisor on the street just prior to her deposition in this proceeding.

• As the court was also aware, plaintiff’s former counsel, John Beranbaum, advised the court of this incident in a letter to the court dated October 24, 2008. (SEE EXHIBITS) In the Beranbaum submission, it was made clear to the court that Ms. Corrado was given a ‘“warning’ about the testimony she was to gave at the deposition[,]” and further advised that “Ms. Corrado is very upset about the entire experience.”

• Mr. Beranbaum again raised the issue on the record four days later on October 30, 2008. (SEE EXHIBITS– Transcript of October 30, 2009 hearing, Page 26 (lines 17-25), and page 27 (lines 1-8)). The court, in responding to the letter advising of the threat on plaintiff’s witness, commented, “You [Mr. Beranbaum] seem to want to tell me something or report it to me. Okay. You reported it to me.”

• It is plaintiff’s belief that the court had an obligation to report the matter to federal agents and, further, to interview Ms. Corrado concerning the incident. Plaintiff believes she has been severely prejudiced by the threat upon witness Corrado, and, as the court is aware, Ms. Corrado did not appear at a witness in this proceeding.

• While plaintiff is aware that counsel within the Office of the New York Attorney General’s office offered to “fully” compensate Mr. Beranbaum for ALL of his legal fees, expenses, etc., if plaintiff settled her case, I am unaware of the exact timing of when the compensation offer, believed to be between $120,000.00 and $150,000.00, was actually made.
• Conclusion
• For the reasons set forth in detail herein, Movant respectfully requests that this Court in the interest of justice grant a new trial. As noted, the participation of the Attorney General in failing to investigate the charges submitted by plaintiff against the defendants, and subsequently representing these same persons in the instant court proceedings, denied plaintiff’s constitutionally protected right to a fair and impartial trial. This denial of basic rights was compounded by unclear, confusing and convoluted instructions to the jury, discovery of new evidence and serious allegations of intimidation of witnesses, which all support the instant motion for a new trial. For all of the reasons set forth herein, the plaintiff is entitled and warrants being accorded a new trial. Furthermore, Movant is Ready willing and able to go to trial immediately and no delay, harm, or prejudice will occur to the other parties as a result of Movant's motion. Inasmuch as the Attorney General should even be denied the opportunity to answer, and as justice demands, the court should sua sponte, grant the herein sought relief.

Christine C. Anderson

**CLICK HERE TO SEE THE FILED MOTION AND EXHIBITS**

(See: "ANDERSON LAWSUIT" -

"Motion for New Trial, November 16, 2009")