THIS IS THE PROFESSIONAL MISCONDUCT THAT THE SUPREME COURT BURIED. IT IS THE RECORD OF NEW YORK DA ALVIN BRAGG. PART TWO

The Review

The two Supreme Court newsletters established the Supreme Court burial of the professional misconduct of New York DA Alvin Bragg. Then Part One of Alvin Bragg established his professional background and blue-ribbon credentials in education, training and specialization in his knowledge and skill in the field of protecting defendant rights in the prosecution of criminal cases.

The Professional Conduct Assessment: The Rules

As noted, the controlling rules that governed Bragg’s professional conduct were 3.6(a), 3.8(f) and 8.4(d). 3.6(a) says that a prosecutor and his assistants and investigators are prohibited from making negative extrajudicial comments that could materially prejudice the outcome of the case against the to be accused defendant. 3.8(f) in conjunction with 3.6(a) says that he is prohibited from making negative extrajudicial comments that could heighten the condemnation against this to be accused defendant. Further, that he is “to exercise reasonable care to prevent …persons associated with the prosecutor in a criminal case from making such negative extrajudicial statements against the to be accused suspect.  8.4(d) says that they are prohibited from taking actions which prejudice the administration of justice.

To be clear, these rules carry severe penalties for their violation, including the removal of the prosecutor, his assistants and investigators from the practice of law under 8.4(a).

All of these rules of professional conduct are here: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/

The Professional Conduct Assessment: The Facts

The facts are these: On February 23, 2022, Carey Dunne and Mark Pomerantz, the lead prosecutors, under DA Bragg, in the investigation of Mr. Trump, announced that they were resigning. In his letter of resignation, Pomerantz wrote that the “team that has been investigating Trump harbors no doubts about whether he committed crimes, including falsifying business records and that it was a grave failure of justice” not to pursue criminal charges. (See the New York Times publishing of the Pomerantz letter of resignation on March 23, 2022, from its article entitled, “Trump Is Guilty of Numerous Felonies, Prosecutor Who Resigned Says”).

From the rules of conduct perspective, here is what happened. As a lead prosecutor, “who… has participated in the investigation …of” former President Donald Trump, Lead Prosecutor Mark Pomerantz was absolutely prohibited from allowing his letter of resignation to be published in which he said, “the team that has been investigating Trump harbors no doubts about whether he (Mr. Trump) committed crimes, including falsifying business records and that it was a grave failure of justice not to pursue criminal charges.” Nothing could be more substantial in “materially prejudicing” Mr. Trump’s fair trial rights than affirming that there were no doubts about Mr. Trump’s guilt under the rule 3.6(a) standard.

From that Pomerantz prejudicial impact, there was no way that Mr. Trump could be presumed innocent if it turned out that DA Bragg would end up indicting him on the business fraud charges, which turned out to be the case a year later under the heightening of condemnation standard of rule 3.8(f).

As noted above, the prosecutor is to “exercise reasonable care to prevent …persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under …this Rule.” (See above Rule 3.6(a) together with Rule 3.6(f)). Under this standard, a prosecutor, such as DA Bragg, would have been in position to know and to take “reasonable care to prevent” his lead prosecutor from extrajudicially publicizing against a criminal suspect from what the lead prosecutor has investigated. This would of necessity include a letter of resignation that tags the investigated person with guilt, as Pomerantz did with Trump.

What DA Bragg Knew and Why it is Important

But Bragg was not any DA when it came to his duty to use reasonable care to prevent lead prosecutors in his office from publicizing about a suspect’s guilt. All the reader has to do his look at Bragg’s background on the extrajudicial publicity prohibition against suspects and accused defendants. As noted earlier, he graduated from what is believed to be the best law school in the country, Harvard. He was editor of the Civil Rights- Civil Liberties Law Review at Harvard, in which the protection of defendant’s fair trial fair trial rights is at the center.

He clerked for a Judge at the Southern District of New York, in which such prejudicial publicity has to be guarded against at all points. And before becoming the New York DA, he was an Assistant United States Attorney for the Southern District of New York, again, where this publicity prohibition has to be front and center. Again, from this perspective, no one knew better than DA Bragg how much “reasonable care” he needed to “exercise” to ensure that no lead prosecutor would publicly condemn a suspect or accused defendant.

Yet, Pomerantz prejudiced Mr. Trump’s rights against the publicity without the slightest bit of concern that DA Bragg would condemn him for doing it, publicly or otherwise. Indeed, there is no available record that Bragg ever did anything of the kind, notwithstanding his duty of care responsibility (under Rule 3.6(a) and Rule 3.8(f) in the oversight of Pomerantz under his authority while Pomerantz worked under him.

DA Bragg was Required to Set and Enforce the Standard for his Office

To be clear, if DA Bragg was committed to the rules of conduct, as he was required to be, here is a sample illustration of what DA Bragg would have been expected to say to his lead prosecutors, including Pomerantz: “If any of you publicize anything against Mr. Trump from what was allegedly learned during our investigation of him, I will see to it that you are publicly condemned for doing it and publicly recommended to the grievance committee of the Appellate Division of the New York Supreme Court that you be disbarred.” Tragically, there is no such evidence that such a warning against the violation of Trump’s rights was ever given. Moreover, once Pomerantz actually spilled the beans, so to speak, DA Bragg still had nothing to say about the destruction of Trump’s rights even though the beans were publicly spilled.

What difference does any of this make? The publicity prohibitions are designed to preserve inviolate the administration of justice under rule 8.4(d). Substantially violating 3.6(a) and 3.8(f) destroys the administration of justice in contaminating any jury verdict that would be rendered after the indictment of this suspect. Indeed, there is no justice to be administered if the jury’s independent decision-making under 8.4(d) has been overturned from negative extrajudicial publicity coming from those associated with the prosecutor’s office before trial.

There is much more to this assessment in Part Three.