People v. Paul Thompson
AD2 order dated February 1, 2011, affirming judgment of conviction. Decision below: 81 A.D.3d 670, 916 N.Y.S.2d 151. Jones, J., granted leave April 24, 2012.
ISSUES PRESENTED: (1) Allowing the People to reopen their case, after the defense summation, to introduce suppressed evidence. (2) The improper elicitation at the grand grand jury of evidence of defendant’s post-arrest silence and of other-crimes participation. (3) Ineffective assistance of counsel. (Assigned counsel: Warren S. Landau & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
Issue before the Court: In a case charging the defendant with murdering a rival drug dealer, whether the prosecutor’s criticism of the defense’s request to have a witness called before the second grand jury impaired the integrity of that proceeding. The witness had testified at the first grand jury (which declined to indict) that she did not see the shooter’s face, and the prosecutor told the second grand jury, inter alia, that the testimony would not be relevant, and, at one point, that they had to take her advice not to have the witness called.
Held: In a 26-page opinion authored by Judge Abdus-Salaam and joined by Judges Graffeo, Pigott, and Read, the majority held that the prosecutor’s “forceful” exhortations to reject the defense’s request did not impair the integrity of the grand jury. The prosecutor permissibly exercised her role as legal advisor and her duty to uphold the public interest in prosecuting crimes. “The prosecutor surely had some leeway to argue her views on the admissibility of the proffered defense evidence.” That leeway included an initial denial by the prosecutor that she knew the witness’s identity, telling the grand jurors that the testimony would be irrelevant and that the sufficiency of the evidence made it irrelevant, and suggesting, at least at one point, that the grand jurors “ha[d]” to take her advice as their legal advisor. The majority found further support for its holding in the grand jurors’ "assertive" conduct in questioning the prosecution about this witness, which “belie[d] the notion that the prosecutors undermined” their independence.
CAL Observes: This decision is a prosecutor’s dream, Over an 18-page dissent (authored by Judge Lippman and joined by Judges Rivera and Smith), the majority (making it the law of the State) evidently sanctions seemingly untrammeled prosectorial discretion in the grand jury. Prosecutors can pretty much control the presentation on the theory that, in their duty to prosecute crimes, they must be granted “leeway.” Due process concerns of fairness to the defendant and the grand jury's independence take a back seat. After reading the dissent, it is difficult to disagree that this grand jury was misled by the prosecutor’s statements and that its independence and investigative function were compromised insofar as the prosecutor influenced it to drop any request to hear from the witness, a direction in which it appeared to be headed before the prosecutors made their various statements. Concerns of witness safety may have been motivating the majority to some degree (the witness had apparently softened her identification testimony in the first grand jury because of anonymous threats), but the dissent points out that there would have been a statutory remedy if that had been the concern.