Yesterday, in People v. Dunbar (decision here), New York's Appellate Division, Second Department, held that the Queens County DA's script for questioning defendants immediately before arraignment -- and before appointment of counsel -- violated the defendant's state and federal constitutional rights. The court ordered a new trial in which the defendant's videotaped confession would be suppressed. The DA's script, which was read by a police detective in the presence of an Assistant District Attorney, stated as follows:
In a few minutes I'm going to read you your rights. After that, you'll be given an opportunity to explain what happened at that date, time and place. If you have an alibi, give us as much information as you can, including the names of any people you were with. If your version of the events of that day is different from what we have heard, this is your opportunity to tell us your story. If there is something you would like us to investigate concerning this incident, you must tell us now so we can look into it. Even if you have already spoken to someone else, you do not have to talk to me. This will be the only opportunity you will have to talk to me prior to your arraignment on these charges. This entire interview is being recorded with both video and sound. [Emphasis added.]
The Second Department expressly did not decide whether the script constituted conduct "consisting of violations of attorney-ethics rules," but the decision was a resounding vindication for Professor Ellen Yaroshefsky of Cardozo, who had given an expert opinion in a related case stating as follows:
The context of the interview misleads and deliberately induces the defendant to believe that there is an urgency to speak now when there is no advantage to him doing so prior to appointment of counsel. The conduct implies that there is a present advantage that will be unavailable at a later date. The detective and prosecutor know, but the defendant does not, that he will immediately secure counsel to provide independent advice as to whether and when he should provide information to the detective or the prosecutors. The prosecution knows that indigent defendants will not obtain counsel prior to the time of entry into the court's holding cell and that the interview process delays and circumvents the defendant's contact with counsel. …
That made the script a violation of New York Rule 8.4(c), which prohibits conduct involving "deceit or misrepresentation." In my view, for two intertwined reasons, the conduct at issue also violated New York Rule 8.4(d), which (like the ABA Model Rule) prohibits conduct “prejudicial to the administration of justice.” First, when the court analyzed “the ‘critical’ prejudice component of the constitutional harmless error test,” the Second Department expressly found that the DA's misconduct was not harmless error. To me, that means that the error was harmful, which has the same meaning to me as “prejudicial.” Second, this was not an isolated instance of the conduct in question or the result of an over-zealous ADA “going rogue,” but rather was part of a systematic practice that the D.A.’s office adopted, scripted, and implemented in thousands of cases. The conduct was not just prejudicial to the rights of the particular defendant in the case at bar – it was prejudicial to the administration of justice with respect to every criminal case that came through the Queens D.A.’s office using these methods of interrogation.
I am not asserting that every violation of a suspect’s constitutional rights equals conduct prejudicial to the administration of justice within the reach of Rule 8.4(d). But when the conduct in question is systematic, widespread, and prejudicial to many suspects, I believe it does amount to conduct prejudicial to the administration of justice. This does not mean that the Queens D.A. or the ADAs who developed the policy or engaged in this conduct should now be charged with a violation of Rule 8.4(d). The question was hard fought in multiple cases and produced mixed results from various courts. The Dunbar decision may yet be reviewed by the New York Court of Appeals (too soon to know). But unless and until the Dunbar opinion is reversed by the Court of Appeals, prosecutors who read from the same unconstitional script in the future are, IMHO, engaged in conduct prejudicial to the administration of justice.