Law Office BruceAYoung has obtained 1983 liability personally against District Attorneys misconduct. 212-965-0050 Manhattan DA found not immune to Suit for Damages 42 USC 1983 Hill v City of New York, 45 F3d 653 deny prosecutorial immunity to Manhattan DA Civil Rights Claim against individual DA and DA’s office for failure to train under 42 USC 1983 cited more than 150 times in federal courts as the dividing line for when a prosecutor’s role no longer has absolute immunity and is subject to damages for Constutitional Tort. Conviction Toppled; Panel Criticizes Erie County ADAs John Caher New York Law Journal 2013-11-13 00:00:00.0 Three years after reversing a conviction and sharply rebuking an assistant Erie County district attorney for prosecutorial misconduct, an appellate panel has toppled the same defendants conviction at retrial and criticized a different prosecutor in the same office for similar transgressions. Assistant District Attorney Mara McCabes misconduct at Richard Morgans second trial on burglary and related charges mirrored that of former prosecutor Jaime Cirulli Gallagher in the first trial, according to a panel of the Appellate Division, Fourth Department. Despite our prior admonition on defendants first appeal, the prosecutor on retrial repeated some of the improper comments from the first summation and made additional comments that we conclude are improper, the court said Friday in People v. Morgan, 11-01834. The court said McCabe denigrated the defense and defense counsel Edward Earl Key. It said she fabricated facts, misstated the evidence and the law, made an inappropriate guilty by association argument and, perhaps most egregious[ly]… made herself an unsworn witness and injected the integrity of the District Attorneys office into the case. According to the unsigned memorandum, McCabe told the jury in summation that her chief witness did not receive any benefit for her testimony, conduct that the Court of Appeals explicitly condemned in People v. Carter, 40 NY2d 933 (1976). In light of the foregoing, we conclude that reversal is warranted based on the pervasive and at times egregious misconduct on summation, particularly in light of our previous admonition to the People in this matter, the court said in a decision by justices Nancy Smith (See Profile), Erin Peradotto (See Profile), Edward Carni (See Profile) and Stephen Lindley (See Profile). Morgan was charged with second-degree burglary, third-degree grand larceny, second-degree criminal possession of a forged instrument and seventh-degree criminal possession of a controlled substance. His 2006 conviction before Erie County Supreme Court Justice Penny Wolfgang (See Profile) was reversed on Batson grounds (see Batson v. Kentucky, 476 U.S. 79, 1986). In 2010, the Fourth Department said Wolfgang did not properly ascertain that there was a racially neutral explanation for the prosecutions exclusion of a black juror. Morgan was represented in the initial appeal by Timothy Murphy and Amanda Townsend, both of whom were then with the Legal Aid Bureau of Buffalo. The first Morgan court said that since it was reversing under Batson, there was no need to address the defendants claim of prosecutorial misconduct by Cirulli Gallagher. Yet, it also noted its strong disapproval of the misconduct of the prosecutor on summation in improperly shifting the burden of proof onto defendant and in improperly vouching for his credibility (People v. Morgan, 75 AD3d 1050, 2010). In its decision Friday, the Fourth Department criticized McCabes conduct at Morgans second trial. In short, as we said more than 15 years ago, [i]t would seem, by now, unnecessary to emphasize again that the duty of the prosecutor is to honor established legal principles, not to secure a conviction by any and all means (People v. Paul, 229 AD2d 932, 1996), the panel said. The court dismissed the grand larceny and drug possession charges and ordered a new trial on the burglary and forged instrument counts. Key, who said he expects to represent Morgan at a third trial, said such conduct is systemic in the Erie County district attorneys office. It is the culture over there, said Key, a former Niagara County prosecutor. They think they wear the white hat and they can say or do anything they want. Some of the ADAs think it is a personal fight. Its not. Its about seeking justice. I am glad the Appellate Division is slapping them down a little bit. Neither Erie County District Attorney Frank Sedita III nor McCabe returned calls for comment. Alan Williams of the Legal Aid Bureau of Buffalo represented Morgan on the second appeal. Assistant District Attorney Matthew Powers appeared for the prosecution. I am grateful the Appellate Division ruled in favor of my client, Williams said. I raised the issues I believe the record permitted me to raise. I worked hard on the case, as Tim Murphy and Amanda Townsend worked hard on the previous appeal. Certainly, the result in this case is in significant part the result of their pointing out what happened at the first trial. Powers said he was not authorized to comment. The Fourth Department also took issue with the conduct of Erie County prosecutors in two other appeals decided Friday, People v. Koonce, 11-02471, and People v. Robinson, 11-02183. In Koonce, a murder case tried before Erie County Judge Michael Pietruszka (See Profile) in 2011, the court said Assistant District Attorney James Bargnesi improperly denigrated the defense. But Presiding Justice Henry Scudder (See Profile) and Justices Lindley, Carni, John Centra (See Profile) and Rose Sconiers (See Profile) said the misconduct was not so egregious as to deprive [Norman Koonce] of a fair trial. Koonce was represented at trial by Kevin Spitler of Buffalo. Vincent Gugino of the Legal Aid Bureau of Buffalo, who argued the Koonce appeal, said he will seek leave to appeal. He said there have been numerous instances in recent years in which Seditas office has been taken to the woodshed. I think the problem is that Sedita has the ADAs so scared of losing their job that they go overboard, Gugino said. Assistant District Attorney David Heraty argued the Koonce appeal. In Robinson, a grand larceny case, the court agreed with Kristin Preve of the Legal Aid Bureau of Buffalo that Assistant District Attorney Sarah Ryan made a remark in summation that impermissibly shifted the burden of proof. But the court said the ill-advised comment was not so serious as to require reversal of Rickie Robinsons 2011 conviction. The court also said the trial judge, Acting Erie County Judge James McLeod clearly and unequivocally instructed the jury that the burden of proof on all issues remained with the prosecution. On the Robinson panel were Scudder, Lindley, Peradotto, Eugene Fahey (See Profile) and Joseph Valentino (See Profile). Assistant District Attorney Ashley Small appeared for the prosecution. @|John Caher can be reached at jcaher@alm.
Posted on: Wed, 13 Nov 2013 15:26:18 +0000
Trending Topics
Recently Viewed Topics
© 2015