Legal Wrangling Over Defendant Interviews in Queens - NYTimes.

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http://cityroom.blogs.nytimes.com/2010/10/15/legal-wrangling-over-defe...

Richard A. Brown, the Queens district attorney, is attempting to prevent a justice in State Supreme Court from issuing a ruling that may accuse his office of an ethics violation and possibly open the door to appeals and motions in many criminal cases. Lawyers for Mr. Brown filed a petition (see also below) this month asking a state appellate court to prevent the judge, Justice Joel L. Blumenfeld, from issuing an opinion on whether the office violated a disciplinary rule by making a misrepresentation to get a defendant to talk. Prosecutors fear that Justice Blumenfelds decision could not only smear the district attorney, but also provide an uncontested judicial opinion that defense lawyers will use against them in other cases. Judge Blumenfeld, Donna Aldea, an assistant district attorney, wrote in her petition to the appellate court, has already repeatedly exceeded his authority and jurisdiction, and is about to do so twice more, potentially causing irreparable harm to the reputation of the district attorneys office and individual prosecutors involved in this case. The case is a remarkable example of legal finger-pointing, with Justice Blumenfeld and the prosecutors alternately taking stabs at each others ethics, and a former judge taking a critical shot at an academic. It also presents perhaps the most fierce challenge to the Queens district attorneys Central Booking Interview Program, which has come under scrutiny from defense lawyers and judges in the past. The program, which was created three years ago, has processed more than 5,000 cases, prosecutors said. The issue in the current case rose after the lawyer for a defendant named Elisaul Perez filed a motion seeking to throw out a statement his client gave to prosecutors before he was arraigned on charges of robbery and possession of stolen property. Before interviewing Mr. Perez, prosecutors read to him from a standard script it reads to all defendants. After the prosecution completed the script, it read Mr. Perez his Miranda warnings, which he waived and proceeded to give a statement. But the script includes a line informing the defendant that if there is something he would like the office to investigate he must tell us now so that we can look into it. And Justice Blumenfeld questioned whether that statement constituted a false representation to induce the defendant to talk, which could be a violation of the rules of professional conduct for lawyers. Justice Blumenfeld called on Ellen C. Yaroshefsky, a professor at Cardozo Law School, to produce a report on the prosecutions conduct. Professor Yaroshefsky issued a report saying that prosecutors had committed four ethics violations. Mark F. Pomerantz, Justice Blumenfelds lawyer, declined to comment. Prosecutors have denied any misconduct. They countered Professor Yaroshefskys findings by asking Joseph W. Bellacosa, a former judge on the Court of Appeals, the states highest court, to issue his own report. Mr. Bellacosa wrote that Professor Yaroshefskys report was laden with factual and legal errors, and that it was ironically bordering on irresponsibly unprofessional conduct in and of itself. Prosecutors asked Justice Blumenfeld to strike Professor Yaroshefskys report and to decline to issue an opinion on whether their office violated any rules of professional conduct. The law does not allow Justice Blumenfeld to address potential rules violations in a decision about whether to suppress a statement, prosecutors said. The question of rules violations should be litigated in appellate division hearings, prosecutors said, where they would have an opportunity to present evidence to challenge allegations against them. And if Justice Blumenfeld rules that there were violations in his decision on the suppression hearing, prosecutors argued that they would have no way to appeal it. Justice Blumenfeld could, for instance, rule that Mr. Perezs statement to prosecutors was admissible, but still elaborate in the decision that their interview process violated ethics rules. Stephen Gillers, a professor at New York University Law School, said that the district attorneys office might just have to

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Legal Wrangling Over Defendant Interviews in Queens - NYTimes.com

http://cityroom.blogs.nytimes.com/2010/10/15/legal-wrangling-over-defe...

live with such a ruling. It is entirely appropriate for a judge to identify an ethical lapse, even if hes not prepared to rely on it for the relief he grants, Professor Gillers said. That happens. But he added that he did not believe there was anything wrong with the district attorneys pre-interview script. Others, however, have found fault with it. After a hearing last year, Thomas A. Demakos, a judicial hearing officer and former chief assistant in the Queens district attorneys office, recommended that a statement given to a Queens prosecutor in the interview program be suppressed. Reciting the script before giving Miranda warnings, Mr. Demakos wrote, primed the defendants to relinquish their rights before they were even made aware of them. Justice Barry Kron eventually allowed the statement to stand, but not without raising his own concerns regarding the interview program. Miranda warnings should be issued right away, Justice Kron wrote, since defendants are clearly in custody and the initial script is the functional equivalent of questioning because it is reasonably likely to elicit a response.
District Attorney Richard A. Browns Petition

John Eligon and other court reporters for The New York Times take you inside the citys halls of law every Friday. Have a tip? Send an e-mail message to CourthouseConfidential@nytimes.com.

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