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A prosecutor from the Erie County District Attorney’s Office in Buffalo, NY, was dressed down in a recent memorandum from the Appellate Division of the New York Supreme Court in a burglary case that has already gone to trial twice (The People v. Richard Morgan). The Court reversed the conviction of a Buffalo man, Richard Morgan, for a second time in November, 2013, citing prosecutorial misconduct during the state’s closing argument.

In 2011, Morgan was convicted on retrial of burglary in the second degree, grand larceny in the third degree, criminal possession of a forged instrument in the second degree, and criminal possession of a controlled substance in the seventh degree.

Morgan’s first conviction was overturned by the Appellate Division in 2010 when the Court concluded that the state had committed a Batson violation during jury selection. A Batson violation refers to a prosecutor’s discriminatory exclusion of racial minorities from a jury.

In its most recent judgement, the Court grew tired of the state’s misconduct, having warned prosecutors from the same office about the same issue in its original reversal:

“Despite our prior admonition on defendant’s 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…

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 A.D.2d 932, 933).”

The Court found that Assistant District Attorney Mara McCabe committed the following misconduct during summation at Morgan’s second trial:

“The prosecutor improperly denigrated the defense and defense counsel, repeatedly characterizing the defense as “noise,” “nonsense” and a “distraction[ ],” and arguing that defense counsel was fabricating facts and attempting to mislead the jury…

In one of the more troubling passages in her summation, the prosecutor stated, “You are here for the People of the State of New York versus [defendant] ․ It is not about who isn’t sitting at the defense table, it is about who is.   Are you buying it?   Because that’s what they’re selling.   Theories disguised as arguments and posturing as evidence.   And I’m not suggesting the defendant has the burden of proving anything because the burden rests with the People, but by the same token, it doesn’t give counsel license to make stuff up and pretend that it’s evidence.   They all have something in common.   These theories, they’re noise, they’re nonsense.   They want you to be distracted.   Do not be distracted.”

The Court goes on to find that McCabe misstated the evidence and the law, made an inappropriate “guilt by association” argument, and improperly characterized the case as “about finding the truth and it is as simple as that”. The opinion continues:

Perhaps the prosecutor’s most egregious misconduct occurred when she made herself an unsworn witness and injected the integrity of the District Attorney’s office into the case [citations omitted].   With respect to a chief prosecution witness, who did not testify at the first trial and who turned herself in on a warrant the day prior to her testimony, the prosecutor stated:  “When she arrived at our offices, she was escorted over to Buffalo City Court because she had a warrant, because that’s what you have to do, and she was released on her own recognizance by the judge.   And let me be very clear here when we talk about promises to witnesses or benefits that they received.   Let me be very clear.   Neither myself, nor [the other prosecuting attorney], nor anyone from our office, ever promised her anything in exchange for her testimony ” (emphasis added).   The Court of Appeals condemned similar comments by the prosecutor in People v. Carter (40 N.Y.2d 933, 934–935).

The Court sums up its finding:

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 [citations omitted].

District Attorney Frank A. Sedita III of Erie County told The Buffalo News that he puts a lot of stock in the Court’s judgement and will work to ensure this sort of misconduct does not occur again.

In addition to reversing Morgan’s conviction, the Appellate Division also dismissed two counts from Morgan’s indictment, ordering a new trial on the burglary and forged-check counts only.


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