A group of law professors filed ethics complaints Monday alleging prosecutorial misconduct, including allegations involving four current Queens prosecutors who had been slapped by the appellate courts for racial or religious discrimination practiced under former District Attorney Richard Brown.
All four have since received raises from new DA Melinda Katz, according to city payroll records reviewed by THE CITY.
“We believe that serious public discipline is the proper result in this case,” the complaints read, referencing the appellate judges’ findings that the prosecutors had each removed Black jurors in a “discriminatory” manner.
Prosecutors have a great deal of discretion in using “peremptory challenges” to strike prospective jurors, which the defense can challenge and a judge can review. While outright racial discrimination is not allowed, cases “are often difficult to establish and thus rarely addressed,” the complaints note. “But …. This form of misconduct strikes at the heart of perhaps the most important fundamental right and promise of the legal system: a jury trial free of discrimination.”
In one 2005 case involving charges of robbery and criminal possession of a weapon, all six Black people were removed from the jury bench by a prosecutor, according to the complaints. In another case, where a Black man stood trial for criminal possession of a controlled substance, a different prosecutor attempted to strike each of the three Black people in the jury pool. Appeals judges later found both moves were racially motivated, and illegal, and ordered that the cases be retried.
‘An Abuse of the Process’?
Katz, the Queens DA, had vowed to reform aspects of the criminal justice system during her 2019 election campaign, and subsequently created a Conviction Integrity Unit on her first day in office in 2020 to “review past convictions where there are credible claims of actual innocence or wrongful conviction,” according to the unit’s website.
But for some, the fact that the four prosecutors remain in the Queens DA office, with three of them in senior positions, after appeals courts found misconduct has brought into question her commitment to reversing wrongful convictions.
“It’s appalling, and it speaks volumes,” said Steve Zeidman, a professor at the CUNY School of Law, and one of six professors who signed onto the complaints as part of a new push by outside attorneys to hold prosecutors to account for alleged misconduct. “It’s not only that there was not any kind of discipline that anyone can point to, but a lot of folks who engage in this behavior have advanced through the ranks…. What does that say to their colleagues? To the newer lawyers?”
Two of the four current prosecutors involved in the complaints — Rachel Buchter and John Kosinski — were also subjects of a batch of 21 complaints filed by many of the same professors in May of 2021 to the grievance committees, which are tasked with investigating attorney misconducts. There has been no public resolution to those cases as, the professors say, prosecutors are rarely probed, let alone punished, even after appeals courts have found wrongdoing on their parts.
Two former Queens prosecutors were also involved in the complaints filed Monday. One of them, Christopher McGrath, has reportedly served as the New York City Police Benevolent Association’s legal counsel for more than a decade since leaving the DA’s office in 1997, according to the Queens Daily Eagle.
John Nuthall, spokesperson for the PBA, did not respond to THE CITY’s inquiry.
The new complaints are a second attempt by these law professors to highlight jury selection bias. They say they hope to create accountability for prosecutorial misconduct by publicizing the grievances that would otherwise be hidden under confidentiality laws.
In 2021, when the professors filed, and publicized, an early set of ethics complaints, an attorney for New York City called the professors’ attempt to point a light at alleged abuses by assistant district attorneys — who are state, not city, officials — as, itself, “an abuse of the process” that was “politicizing the process.” The attorney even threatened legal action against the professors if they continued to file and share complaints, The New York Times reported at the time.
But last June, Southern District Judge Victor Marrero ruled that the professors and the Civil Rights Corps, a nonprofit that worked with them, have a free speech right under both the U.S. and state Constitutions to publicize the complaints they have filed.
“It’s rare for grievance committees to impose any sort of sanction whatsoever, even mild sanction,” Zeidman, the CUNY law professor, told THE CITY. “And then you think a little deeper about it, and you say, ‘Well, if an appellate court found that a prosecutor engaged in misconduct, what does that court do? Do they further the matter to the Grievance Committee? … They do not.”
A spokesperson for the Queens District Attorney’s Office said on Monday that “as there is litigation pending as to how this office is able to respond to complaints filed with the grievance committee, we are unable to comment at this time.”
The office did not respond to questions about the raises received by the four prosecutors involved in the complaints.
‘This Racist History Is Not History’
For more than a century, legal precedents have barred the practice of discriminatory jury strikes, known as Batson violations, according to Bina Ahmad, senior staff attorney at Civil Right Corps.
“And yet, we see that that hasn’t stopped prosecutors from still deliberately striking jurors of color,” Ahmad told THE CITY. “We really want people to understand that this racist history is not history — that it still continues to this day.”
Notably, four of the six complaints involved peremptory strikes against prospective Black jurors. The two other complaints involved the removal of prospective Muslim and Hispanic jurors.
The complaints call on a grievance committee to conduct an “immediate and thorough” independent investigation into the jury selection practice at the Queens District Attorney’s Office since 1990, citing “smoking gun documents” uncovered in 2020 in one of McGrath’s files, which “reflected a detailed, dehumanizing ranking system that typed jurors by race, sex, religion, ethnic background, class, and neighborhood.” That file, and McGrath’s admission that he used those notes during at least two cases in the 1990s, prompted Katz’s conviction review unit to support the reversal of three convictions.
In these notes, first published by the Queens Daily Eagle, historically Black areas in Queens like Cambria Heights, Hollis and St. Albans were categorized as “good B neighborhoods,” while neighborhoods like Steinway were noted with “Greeks drop everybody.” Other scribbles note “No Hispanics (unless citizens from other country, will hate bad reputation of Amer. Hisp.),” “No Italians,” and, crossed out, “No Jews.” The note also included a list of “Good B Neighborhoods.”
The new complaint calls on the committee “to use every investigative tool to identify each prosecutor who wrote and/or used the ‘McGrath notes’” — adding that “we still do not know who actually created this document. We do not know how many prosecutors used it or how many accused persons endured a jury selection that was influenced by bias.”
Katz previously pledged that her office would “review eight additional convictions prosecuted by McGrath, plus every other case he tried during his decade as an assistant district attorney,” according to the Daily Eagle.
Her office did not respond to inquiries about how it internally evaluates allegations or court findings of prosecutorial misconduct, or about how many cases the CIU has sought to reverse as a result of these kinds of wrongdoing.
Many conviction review units nationwide have focused on older cases, while shying away from those involving prosecutors still employed by that district attorney.
‘A Major Problem’
Despite the Appellate Division’s finding that the six current and former prosecutors had committed Batson violations, none of them have received any discipline, according to New York Attorney Detail Reports available on the state Unified Court System website.
Prosecutors typically have absolute immunity from civil liability related to their conduct, said Peter Santina, managing attorney of Civil Rights Corps’ Prosecutorial Accountability Project, adding that prosecutorial misconduct is “a major problem that really doesn’t have an effective accountability mechanism to address it.”
Zeidman, the CUNY law professor, said prosecutors wield “great” power “that should be subject to the most stringent examination to make sure that they are obeying the ethical rules, the constitutional rules.”
He added that the new round of complaints, about illegal discrimination in jury selection, were important because “this has been buried for so long, that the options are either to turn away and say the door’s forever closed, or to keep banging on the door and say, ‘Look, this is so important. We have to try and get our foot into the door.’”
Zeidman told THE CITY: “It’s the power of the prosecutor. And the power to destroy lives, you know — to prosecute people, saddle them with convictions, have them sent to state prison.”
The Commission on Prosecutorial Conduct, established in 2021 under a bill signed by then-Governor Andrew Cuomo, was supposed to also “serve as a factfinding entity designated to review complaints of prosecutorial misconduct,” to “improve disciplinary oversight … and to improve the exercise of the Governor’s authority to remove district attorneys.”
But Lucian Chalfen, spokesperson for the court system, said the commission is not yet a functioning body, despite appointments in December 2021 from former Chief Judge Janet DiFiore, who herself resigned the following year after allegedly interfering in the disciplinary hearing of a court officer. Other stakeholders, Chalfen added, have not made their appointments yet.
Chalfen told THE CITY he could not say how many complaints of prosecutorial misconduct have been filed to the grievance committees, noting that complaints about attorneys are private and confidential under New York law, “and the outcome[s] are not open to the public” unless they result in a formal disciplinary hearing in court.
Asked how many complaints against prosecutors have led to a court hearing and some form of discipline over the last 10 years, Chalfen said he has “no idea.”
Santina from the Civil Rights Corps noted that complaining to the grievance committees is one of the few ways to hold prosecutors to any public account. But even then, he said, research from his team found only three prosecutors in New York who have ever been disciplined for on-the-job misconduct. Those three had their licenses to practice law suspended, but were not disbarred.
“The fact is that to this day, there are plenty of instances of prosecutors removing jurors of color,” Santina said. “And that’s an abomination that creates an unfair trial that creates an unjust system.”