No one has getting indicted on their bucket list. No one sends word of their indictment to their alumni magazine.

That said, if you’re going to get indicted, it’s a whole lot better to be charged in state court in New York than in federal court anywhere else in the country, in at least one way.

The criminal case about the implosion of Dewey & LeBoeuf shows why. Last week, the folks charged in the Dewey meltdown filed a number of motions to dismiss the indictment. Everyone but Zachary Warren filed an omnibus motion to dismiss. Steve DiCarmine filed his own motion that was so, well, something that it contained Above the Law’s quote of the day. Zachary Warren filed a separate motion. There’s some great stuff in all of the pleadings about the government’s case.

What’s perhaps less obvious to those of us who do white-collar criminal defense but don’t normally practice in state court in New York is that, according to the law as set out in these papers, New York state is a magical Shangri-la of due process compared to federal court.

How?

Get this: in New York state court, the judge gets to look behind what the prosecutors did in the grand jury!

And the government is required to present exculpatory evidence to the grand jury. And a defendant gets to routinely have the judge do an in camera review of the grand jury transcript to make sure that the grand jury was instructed properly on the law. And the judge looks to see if all of the indictment was voted on by the grand jury. Then, a judge can dismiss the prosecution if the case is a “needless or unfounded prosecution.”

You don’t get any of this in federal court. New York is amazing!

Here’s how it’s framed in the omnibus motion filed by Steve Davis, Steve DiCarmine, and Joel Sanders:

The test for when a prosecutor must present legally exculpatory evidence to a grand jury turns on the potential of the exculpatory evidence to make out a complete defense or to eliminate a “‘needless or unfounded prosecution.’” People v. Valles, 62 N.Y.2d 36, 38 (1984); see also People v. Lancaster, 69 N.Y.2d 20, 26 (1986). Where the evidence makes out a complete defense or eliminates a needless or unfounded prosecution, the prosecution’s failure to present that evidence dictates the dismissal of the indictment. Valles, 62 N.Y.2d at 38.

Admittedly, a defense motion is maybe not always the most neutral place to find a description of the law. But still – that there are case cites from after the birth of the republic for some of these propositions is pretty freaking beautiful.

Or check this out:

While the prosecutor’s discretion in presenting his case to the grand jury is broad, it “is not unbounded, for it is settled that at a Grand Jury proceeding, the prosecutor performs the dual role of advocate and public officer, charged with the duty not only to secure indictments but also to see that justice is done; ‘as a public officer he owes a duty of fair dealing to the accused and candor to the courts[.]’” People v. Lancaster, 69 N.Y.2d at 26; People v. Pelchat, 62 N.Y.2d 97, 105 (1984) (the prosecutor “is charged with the duty not only to seek convictions but also to see that justice is done,” including in the grand jury).

Ok, fair enough – a federal court will also give lip service to the idea that a prosecutor is supposed to do something more than just obtain an indictment. A prosecutor is supposed to do substantial justice (though one worries that “do substantial justice” is really measured by securing substantial prison terms – time in prison being the main way justice is measured by those who go to the same credit union as Eric Holder).

In federal court, you can theoretically get a judge to look at what happened in the grand jury. The judge will look into it just as soon as you show that there’s a real and credible reason to think an experienced (my sense is that “about six months on the job” = “experienced” for purposes of a federal prosecutor getting the benefit of the doubt as experienced) prosecutor did something wrong in the grand jury. Though, of course, if you don’t have the grand jury transcript, and you don’t know who the grand jurors are, it’s not completely clear how you’d show there was mischief in the grand jury.

Not so in New York:

This duty “of fair dealing extends not only to the submission of evidence, but also to instructions on the law . . . . ” Lancaster, 69 N.Y.2d at 26. Thus, when the prosecutor “instruct[s] the jury with respect to the significance, legal effect or evaluation of evidence,” CPL § 190.30(7), he must be guided by his duty of fair dealing to the accused. When he fails in this duty and his instructions are so “deficient as to impair the integrity of the Grand Jury’s deliberations,” the resulting indictment must be dismissed. People v. Cannon, 210 A.D.2d 764, 766 (3d Dep’t 1994).

Compare all of this with the Supreme Court’s recent decision in Kaley v. United States (see my prior discussion of the case – and the Chief Justice’s big hug for the defense bar (sadly in dissent) – here):

[T]he whole history of the grand jury institution” demonstrates that “a challenge to the reliability or competence of the evidence” supporting a grand jury’s finding of probable cause “will not be heard.” United States v. Williams, 504 U. S. 36, 54 (1992) (quoting Costello, 350 U. S., at 364, and [*1098] Bank of Nova Scotia v. United States, 487 U. S. 250, 261 (1988)). The grand jury gets to say — without any review, oversight, or second-guessing — whether probable cause exists to think that a person committed a crime.

Apparently the “whole history” of the grand jury institution doesn’t include what happens in New York state court. Which totally makes sense when you think of how insignificant a state New York is. I mean, it only joined the Union recently, right?

Prosecutors have massive amounts of power. And, in federal court, they get to do almost whatever they want in front of a grand jury, with minimal judicial oversight. This is a problem, and it’s a bigger problem in white-collar cases where the law is complex and exculpatory evidence is more likely to be real.

I hope I never get indicted. But if I do, I hope it’s in New York.

Earlier: Dewey Defendant Suggests Prosecution’s Confusion As To ‘Very Basic Law School Stuff’


Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.


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