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Sunday, March 13, 2011

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


insider said...

Most people forget that prosecutors are lawyers who are supposed to be held to a higher level of ethics- and that notion hasn't been around in New York for a long, long time. In fact, the so-called ethics bodies in New York go out of their way to protect the corrupt prosecutors or other insiders.

Victim said...

To the above writer @ 6:44 a.m. Oh, I know that Prosecutors protect the Politically Connected Attorneys..they did it in my case..just ask the Chief of the Sex Crime's Unit at the Manhattan DA's Office..Isn't that right, ADA Lisa Friel!!!

Anonymous said...

Let the Queens DA provide only one case where they investigated crime reported to them under this program? The program is a fraud meant to deprive arrested people of their constitutional rights. Applicable code of Prosecutor/lawyer conduct is:

DR 7-103 [1200.34] Performing the Duty of Public Prosecutor or Other Government Lawyer.
B. A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to a defendant who has no counsel, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment.

DR 7-104 [1200.35] Communicating With Represented and Unrepresented Parties.
A. During the course of the representation of a client a lawyer shall not:
2. Give advice to a party who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such party are or have a reasonable possibility of being in conflict with the interests of the lawyer's client.

How about some decency and honor at the DA's office and resignations?

Anonymous said...

Do they accept complaints on lawyers?

"Despite objections from the manufacturing industry, government launches consumer products website"

Anonymous said...

To Insider said:

At this point, I would settle if they were held to the same standard (or any standard.)

Right now, it's what ever standard they feel like at the moment.

Anonymous said...

Interesting article in the NYTs yesterday on the arrest of NYS Senator Kruger on corruption.

Apparently, Kruger is ez pickin's.

"Mr. Kruger, who is known as a loner; and another lawmaker so profoundly unimpactful that the charge that he had benefited from a “no-show job” could easily be taken a couple of ways."

Is this the standard for what the FBI and DOJ go after? Low lying fruit and almost dead people?

No wonder nothing changes.

Anonymous said...

This is so true they protect each other is like Andy Kass ADA for the Orange County DA's office, who claims child porn is not illegal in Orange County as long as the minor child is a willful participant. This in order to help cover up the kidnapping of children from a rigged child custody and divorce case for the purpose of child sexual trafficking and corruption of course. Hey Andy I am out is time to play, how about playing the recording of you stating that child porn is not illegal in the county as long as the child is a willful participant?

Anonymous said...

Kruger might have been easy pickings but Little Boy Blue, Andrew Cuomo, didn't even blow his horn as AG. He was fast asleep in an Albany Haystack for four years.

Anonymous said...

some people know how to use the DA Office .......
they get groups of liars who make fake calls and complaints to the Sheriff's Departments where they have friends who work and spew digusting lies all over that department which transfer over to the DA behind people's back's this now becomes a mountain in the DA's office, where the Judges and Lawyers hand out, if the DA finds out they have mud on their face, they cover it up!

that is the problem, the County is afraid of being sued the lawyers are always a looking for their next case instead of just asking the target what is going on!
there are no more handshakes to stop the problem!

Anonymous said...

Why wasn't I offered a permanent restraining order against Hollash in years or fake calls and complaints/instruments for 20ars? oh that's right, so you can falsely & selectively prosecute me!

Anonymous said...

Hollash do you know what Racketeering is, how about Obtruction of Justice and Insurance Fraud.........

retired nypd said...

any cop will tell you that the Queens DA office is dirty and Manhattan is a close second - they don't care who they set up - all they are looking at are the numbers and folks who can't bite back - that's justice these days

Anonymous said...

"If the Union was formed by accession of States then
the Union may be dissolved by the secession of States."
-- Daniel Webster (1782-1852), US Senator

(Memo to the Feds: many people in many states are upset that their federal government is doing nothing about the criminal takeover of state governments and courts by the corrupted slobs of society.)

Anonymous said...

E - T - H - I - C- S

DA Brown, I spelled the word out for you just in case you forgot how to spell the word to look it up in the dictionary.

Anonymous said...

Prosecutors Foiled Deportation Of Man Now Held in L.I. Killing
Published: March 7, 2005
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. .A jailhouse informer, charged with impersonating a police officer and killing a Long Island man in January, was able to avoid deportation at the end of a prison term last year because of a series of extraordinary interventions by the Queens district attorney's office, according to newly disclosed state and federal records.

The informer, Reginald Gousse, 31, is a Haitian citizen with a long history of kidnapping, police impersonation and armed robbery, but he had testified for the prosecution at one of the city's first trials brought under the 1995 death penalty statute and was given a major break in his own pending cases. Mr. Gousse also received another, far more unusual benefit: using legal means, prosecutors manipulated his criminal record so he was able to avoid deportation to Haiti. Richard A. Brown, the Queens district attorney, said he wanted Mr. Gousse to remain in the country so he would be available to testify again.


Anonymous said...

THE 'ETHICAL' DISTRICT ATTORNEY Brown has the blood of James Gottlieb on his hands.

When confronted with the extraordinary measures his office took to keep Gousse in this country, Mr.Brown LIED!

Brown said he had no idea that Gousse was to be deported for a crime his OWN office convicted Gousse of in 1992. It was that arrest and the conviction that set the wheels of deportation in motion. How could Brown not know?

Mr.Brown excuses himself by saying the office needed Gousse for any future appeals, and wanted him close for that purpose.

DA Brown? Why didn't you consider having John Mark Bigweh remain in this country - his false testimony was far more damaging to the defense that Gousse could ever be. Bigweh came to this country when he was only 11months old. You had him sent back to Liberia.

Anonymous said...

of course they accept complaints against lawyers send them to your local Attorney Grievance........

Anonymous said...

Does Lippman realize that Sampson spent a lot of taxpayer dollars holding "hearings" around NYS about these problems?

Where is the report?

Oh yeah. That wasn't the purpose of those hearing.

Anonymous said...

The attorney grievance committees in New YorK State have not removed or requested sanctions against anyone for ethical problems. The grievance committees barely remove attorneys who steal and commit fraud. I write "barely" because the committees are ineffectual and can't seem to spot fraud and theft very quickly. In Erie County, a recent attorney was finally caught after what seemed like 45 cases of theft/misuse of client funds. The DA 's office bragged that they had investigating this attorney for 6 months. Why did not the DA move faster and prevent 6 months of fraud and theft.? ? Ineffectual

termite inspector said...

Senator Sampson ran those hearings as a shakedown. Note how he got a new law partnership paying cash, a new office and lots of cash from other lawyers. Sampson sees cash and comes running, like in AEG, where the investigation has gone nowhere, or when he demanded $50,000 or $25,000 from multiple unions for access.

Anonymous said...

Maybe New York should change it's slogan to "Cash is King."

Although, "Empire State" clearly can have multiple meanings.

Blog Archive

See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:

               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
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