Forgotten Lawyers' Ethics in The News, Issue in Court

Propriety of Barring Blumenfeld Ruling in D.A. Case Questioned
The New York Law Journal by Daniel Wise - March 14, 2011

Queens Assistant District Attorney Donna Aldea fought hard on Friday to persuade an appellate panel to block a judge from ruling on the ethics of her office's practice of interviewing suspects shortly before they are arraigned. A flurry of questions from the bench, suggesting that it would be premature to bar a ruling from Queens Acting Supreme Court Justice Joel L. Blumenfeld, stretched her scheduled 15-minute argument to nearly one hour. Mark F. Pomerantz, who represents Justice Blumenfeld, also faced some tough questions, particularly from one judge who asked whether the court had the power to remand a suppression hearing to a different judge. At issue is whether Justice Blumenfeld has the jurisdiction to examine whether the pre-arraignment interview program the Queens District Attorney's Office has operated since 2007 comports with the state's ethical rules governing attorney conduct. In its Article 78 proceeding for a writ of prohibition, the Queens office is also seeking to bar the judge from considering the opinion of an ethics expert. Assistant district attorneys in Queens have regularly conducted videotaped interviews of suspects as they pass through the central booking unit. Prosecutors read from a two-page script in which suspects are encouraged "to tell us your story" and if "you tell us about" something that needs to be investigated "we will look into it." As of last September, when the office filed its Article 78, more than 3,500 defendants had given either confessions or statements during pre-arraignment interviews (NYLJ, Oct. 15, 2010). In the course of conducting a suppression hearing in 2009 about statements made during a courthouse interview, Justice Blumenfeld sua sponte requested an ethics opinion about the program and rebuffed prosecutors' demand that he not rule on the ethics issue.

At the Appellate Division, Second Department, Justice Robert J. Miller on Friday challenged Ms. Aldea's use of "kitchen sink" to belittle the potential disciplinary violations that Justice Blumenfeld said he would examine in the context of a suppression hearing. Justice Miller also seized on a comment Ms. Aldea made that he interpreted as conceding that she did not have a problem with Justice Blumenfeld obtaining an ethics report to aid his decision making. Ms. Aldea was also repeatedly questioned by Justice Ruth C. Balkin about whether it was appropriate for the court to block a judge from issuing a ruling and telling him what he could consider. Regardless of how the judge rules, she asked, "Aren't we on the precipice of some area that we should not be?" Ms. Aldea proved to be a tenacious advocate and was not thrown by the questions. She repeatedly returned to her central theme that Justice Blumenfeld had "hijacked" a routine suppression hearing, where the sole issue under Criminal Procedure Law §60.45 is whether the statement was voluntary, by insisting on judging whether the interview program is ethical. Justice Blumenfeld, in seeking "to satisfy his intellectual curiosity," raised a "wholly collateral issue that, far from being a simple error of law, was egregious, unheard of," she told the panel. Though Ms. Aldea acknowledged that the court's questions had delayed her from getting to the "crux" of her argument, the pace of the questions slowed once she presented it. She quoted Justice Blumenfeld saying the sole issue that concerned him was whether the office was making a false promise when it offered to investigate a suspect's claims. That would require a post-statement investigation, she said, and "there has never been a situation" where facts occurring after a statement is taken "have been considered in a suppression hearing."

Judge's Position

Mr. Pomerantz, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, argued that in requesting an outside expert's opinion and considering an ethics issue that "had been percolating in the courthouse," Justice Blumenfeld's actions, "far from being excessive," were within "the mainstream of what judges do and he should be commended for it, not lambasted." Mr. Pomerantz, a former federal prosecutor, argued about five minutes longer than the 15 minutes he requested. Justice Mark C. Dillon asked Mr. Pomerantz whether Justice Blumenfeld had "crossed a line by stepping into the shoes of defense counsel." Mr. Pomerantz rejected that notion, saying it is "flatly wrong" to say that a judge has no role to look at a lawyer's ethics in the context of a suppression hearing. Justice Dillon followed up by asking whether, if the court denied the writ, it nonetheless had the power to assign the case to a different judge on remand. Mr. Pomerantz responded that the court had the power but Justice Blumenfeld had done nothing to warrant the court's exercising it.

Based on 2009 Case

The case that prompted the ethics question involved Elisaul Perez, who is accused of robbing a man of $300 and his iPod. Mr. Perez first moved to suppress statements he made during a courthouse interview in July 2009. Justice Blumenfeld conducted a hearing over five days in the last two months of 2009. The following April, while still keeping the hearing open, Justice Blumenfeld received a report from Professor Ellen Yaroshefsky of the Benjamin N. Cardozo School of Law, who concluded that the prosecutors' questioning was misleading in violation of the disciplinary rules because it insinuated that they where offering to help Mr. Perez when that was not the case. The Queens office countered with an affidavit from former Court of Appeals Judge Joseph W. Bellacosa, stating that Ms. Yaroshefsky's report contained "egregious" errors of law and fact (NYLJ, Dec. 20, 2010). Mr. Perez is not a party in the Article 78 proceeding. Justice Blumenfeld, however, upon the consent of both prosecution and defense, has stayed the criminal case until the Second Department rules on the writ. In the meantime, Mr. Perez is free on bail. The five groups that filed amicus briefs in support of Justice Blumenfeld's jurisdiction to rule on the ethical issues are the Legal Aid Society, the New York Civil Liberties Union, the New York State Association of Criminal Defense Lawyers, the New York County Lawyers' Association's Ethics Institute and a coalition of law professors. The District Attorneys Association of the State of New York submitted an amicus urging adoption of the Queens District Attorney Office's position. Justice William F. Mastro also sat on the panel. Daniel Wise can be contacted at dwise@alm.com.