Brooklyn

Who: A group of law professors filed an ethics complaint in March 2022 against attorney Anne Gutmann, alleging that Gutmann engaged in misconduct 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). The law professors filed the complaint with the Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts. The following summary is based on the complaint.

What: The ethics complaint, also known as a grievance, is based on a New York court decision, People v. Wagstaffe and Connor, and KCDAO post-conviction documents, including a KCDAO report. 

According to the complaint, in the Wagstaffe and Connor case, 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. The complaint quotes a 2008 New York Times story, written while Wagstaffe was still incarcerated, that 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 the Hamilton case, the complaint alleges that Gutmann prosecuted Derrick Hamilton and obtained a murder conviction, resulting in Hamilton’s incarceration for over 20 years, 10 years of which he reportedly spent in solitary confinement. The complaint is largely based on documents from the KCDAO and alleges that the KCDAO’s 426 Years Report analyzes the Derrick Hamilton case under the pseudonym “Robert Hicks.”

The complaint, citing KCDAO documents, alleges that Gutmann’s star witness, Jewel Smith, testified at trial that she witnessed Hamilton commit the killing, but she 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 documents cited in the complaint, 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.

According to the complaint, Kings County prosecutors addressed the case 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 complaint also notes that the 426 Years report did not use Gutmann’s name or mention the fact that even after Hamilton was freed, Gutmann continued working at the KCDAO.

Citing media reports, the complaint notes that 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.

What rules are involved: The ethics complaint notes that 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 or 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 not surprising that the National Registry of Exonerations found that concealment of exculpatory evidence played a role in over 44 percent of known wrongful convictions and 61 percent of known wrongful convictions for murder.

The complaint notes that 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. According to the complaint, ethical rules require prosecutors, and all attorneys, to provide competent representation, including all reasonably necessary legal skill, thoroughness, and preparation. 

Prosecutors wield immense power, the power to seek punishment on behalf of the state, and should be held to the highest ethical standards. The complaint asks the Grievance Committee to investigate Gutmann’s conduct with respect to the following then-applicable rules:

• 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 EC 6-1 mandated a lawyer to act with competence and proper care in representing clients.
• Rule DR 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 was prejudicial to the administration of justice or in any conduct that adversely reflected on the lawyer’s fitness to practice law.

What can be done about it: The law professors’ complaint calls on the Grievance Committee to investigate and issue public discipline, including revoking (disbarring) 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.

Unfortunately, the Grievance Committee has not informed the professors or the public of the outcome of this ethics complaint or even whether the complaint is being investigated. Deprived of such information, the public has no way to evaluate whether this government body is doing its job. We call on the Grievance Committee to be transparent in its proceedings and findings in this matter.

Note: This is a summary based on the grievance, click on the grievance below for more detail. The grievance authors do not have personal knowledge of any of the facts or circumstances of the attorney or case(s) mentioned; the grievance is based on court opinions, briefs and/or other documents cited therein.