Anne Gutmann

PROSECUTOR

Anne Gutmann – NY State Bar # 2137933

BOROUGH

Brooklyn

Who: Law professors filed a grievance regarding seasoned Brooklyn prosecutor Anne Gutmann’s serious misconduct committed while prosecuting three men in two separate cases, Everton Wagstaffe and Reginald Connor, and separately Derrick Hamilton, on behalf of the Kings County District Attorney’s Office (KCDAO). Despite this misconduct, at the time of the complaint, Gutmann had no record of public discipline in the New York Attorney Detail Report. To the contrary, Gutmann remained a prosecutor following the misconduct, including in a role as Chief of the Intake Bureau.

What they did: In People v. Wagstaffe and Connor, the two men were convicted of kidnapping and spent nearly 23 and 15 years in prison, respectively. The Appellate Division reversed the convictions due to Gutmann’s “burying” of important documents. The court found that Gutmann withheld exculpatory police reports until the start of trial, then “delivered the [exculpatory] documents interspersed throughout a voluminous amount of other documentation, without specifically identifying the documents at issue…” The court found that Gutmann’s conduct “deprived [Wagstaffe and Connor] of a meaningful opportunity to employ that evidence” during the cross-examination of the prosecution’s witnesses. A 2008 New York Times story, written while Wagstaffe was still incarcerated, noted, “Even though he finished his minimum sentence more than four years ago, Mr. Wagstaffe remains imprisoned because he has refused to appear before the parole board and express remorse for a crime he says he had nothing to do with.”

In People v. Hamilton, Gutmann prosecuted Derrick Hamilton and obtained a conviction for murder, resulting in Hamilton’s incarceration for over 20 years, 10 years of which he reportedly spent in solitary confinement. Gutmann’s star witness, Jewel Smith, testified at trial that she witnessed Hamilton commit the killing, but had originally told police that she had not witnessed the shooting at all. The police notes of Smith’s original statement reflected the name “Karen Smith,” but also contained the moniker “Jewel.” According to the KCDAO’s report, Gutmann did not consider the notes an official report and had only provided the notes to the defense before jury selection. When Hamilton’s attorney asked Gutmann whether the statement was made by the same person as the testifying witness, according to the KCDAO Conviction Review Unit’s later report, Gutmann replied “no” and told Hamilton’s attorney that she did not know who the person was.  Kings County prosecutors again addressed the case under a pseudonym in its 426 Years report, finding that Gutmann’s investigation of the evidence fell “far short of the expected standards” and Gutmann’s “erroneous representation to defense counsel that they were different people” resulted in the violation of Hamilton’s right to due process. According to the report, Gutmann also made misleading claims about the physical evidence in her closing argument. The report did not, however, use Gutmann’s name or mention her continued employment at the KCDAO.

According to media reports, the three men served a total of 56 years in prison before their convictions were reversed and the city and state of New York paid at least $25.5 million to settle the subsequent civil rights lawsuits.

Why it’s wrong: One of the most damaging forms of prosecutorial misconduct is the Brady violation—when law enforcement suppresses exculpatory or impeachment evidence. When provided in a timely and transparent fashion, Brady disclosures can permit the defense to investigate and litigate different leads, present evidence that the prosecution’s case is inaccurate, present evidence that the testimony of the prosecution’s witnesses is inaccurate or false, present evidence of the accused’s innocence to the jury, and ultimately, to protect the accused from a wrongful conviction. It is unsurprising, then, that the National Registry of Exonerations found that suppression of Brady evidence played a role in over 44 percent of known wrongful convictions and 61 percent of known wrongful convictions for murder.

When a prosecutor fails to properly and thoroughly investigate a case, the consequences can be disastrous, potentially including an innocent person spending years in prison or being executed. Ethical rules require prosecutors, and all attorneys, to provide competent representation, including all reasonably necessary legal skill, thoroughness, and preparation. According to the American Bar Association’s 2017 Standards for the Prosecution Function, the prosecutor should act with diligence and promptness to investigate, litigate, and dispose of criminal charges, consistent with the interests of justice and with due regard for fairness, accuracy, and rights of the defendant, victims, and witnesses.

Prosecutors wield immense power, the power to seek punishment on behalf of the state, and should be held to the highest ethical standards.  The grievance identifies the following then-applicable rules that the Grievance Committee should investigate:

  • Rule 7-103(b) (from the Code of Professional Responsibility, later replaced by the Rules of Professional Conduct) required prosecutors to make timely disclosure of evidence known to them that tends to negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment. 
  • Rule 7-102(a)(3) prohibited attorneys from concealing or knowingly failing to disclose that which they are required to by law.
  • Rule 7-109(a) instructed that a lawyer should not suppress any evidence that they had a legal obligation to reveal or produce.
  • Rule 6-1 mandated a lawyer to act with competence and proper care in representing clients.
  • Rule 6-101 prohibited lawyers from handling a legal matter without adequate preparation under the circumstances.
  • Rules 1-102(a)(5) and DR 1-102(a)(7) prohibited lawyers from engaging in conduct that is prejudicial to the administration of justice or in any conduct that adversely reflects on the lawyer’s fitness to practice law.

What can be done about it: The grievance calls for the committee to investigate and issue public discipline, including the revocation (disbarment) of Gutmann’s law license. It also calls for a broader investigation into other cases prosecuted by the same prosecutor, and to determine whether KCDAO supervising and managing attorneys complied with their duties under Rule 5.1 of Professional Conduct.

Note: This is a summary based on the grievance, see the grievance for more detail and context. The grievance authors do not have personal knowledge of any of the facts or circumstances of the attorney or the cases mentioned; the grievance is based entirely on court opinions, briefs and/or other documents cited therein.