Bernarda Villalona

PROSECUTOR

Bernarda Villalona – NY State Bar #4444451

BOROUGH

Brooklyn

Who: Law professors filed a grievance regarding Bernarda Villalona’s serious misconduct while prosecuting Errol Irving on behalf of the Kings County District Attorney’s Office (KCDAO). Despite this misconduct, at the time of the complaint, Villalona had no record of public discipline in the New York Attorney Detail Report. 

What they did: In People v. Irving, the Appellate Division found that prosecutor Villalona made improper remarks in her closing argument (summation). While reversing the conviction on different grounds, the court specifically identified Villalona’s improper arguments as ones that denigrated the defense, vouched for the strength of the state’s case, and asked the jury to make inferences not based on the evidence.  

Why it’s wrong: As far back as 1899, the New York Court of Appeals cautioned prosecutors against appealing to “prejudice” or seeking conviction “through the aid of passion, sympathy or resentment.” The Court of Appeals has explained that a prosecutor must not vouch for the strength of her own case because of the “possible danger that the jury, impressed by the prestige of the office of the District Attorney, will accord great weight to the beliefs and opinions of the prosecutor.” The Court of Appeals has similarly held that in summation, a prosecutor must not “call upon the jury to draw conclusions which are not fairly inferable from the evidence.” Finally, the Court of Appeals has condemned prosecutors for resorting to name-calling and directing disparaging remarks towards defendants.

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 ethical rule that Villalona’s conduct likely violated:

  • Rule of Professional Conduct 8.4, prohibiting attorneys from engaging in conduct prejudicial to the administration of justice or reflecting adversely on their fitness to practice law. 

What can be done about it: The grievance calls for the committee to investigate and issue public discipline. 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.