Dustin Chao – NY State Bar # 2806669
Who: Law professors filed a grievance regarding Dustin Chao’s serious misconduct while prosecuting Ronald Moye on behalf of the District Attorney’s Office of New York County (DANYC). Despite this misconduct, as of the time of the complaint, Chao had no record of any public discipline in the New York Attorney Detail Report.
What they did: In People v. Moye, the Appellate Division found that Chao committed “an egregious violation of the unsworn witness rule,” which was “highly prejudicial” and required the reversal of the conviction.
Moye was accused of selling drugs, and a police officer claimed to have witnessed the hand-to-hand transaction. However, the District Attorney’s Office’s own employee provided exculpatory testimony, testifying that when the transaction was reenacted prior to trial (to show the exchange was indeed visible from the officer’s viewpoint), the transaction was not visible from that location. This testimony contradicted the police officer witness’s account. The court found that Chao’s response to this testimony in closing argument was improper—Chao acted as an unsworn witness by telling the jury that Chao himself was present at the reenactment as well, and that he, as the prosecutor, should be fired if he allowed a police officer witness to lie in court. The Appellate Division found that Chao’s summation “injected himself, his pretrial conduct and his credibility” into the trial. The Appellate Division reversed Moye’s conviction.
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.” It is improper for the prosecutor to act as an unsworn witness, immune from cross-examination, or vouch for the credibility of a witness.
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 ethical rules that Chao’s conduct likely violated:
- Rule DR 1-102 of the Code of Professional Responsibility (later replaced by the Rules of Professional Conduct) prohibited attorneys from engaging in conduct prejudicial to the administration of justice, or to engage in any other conduct that adversely reflects on their fitness to practice law.
The grievance calls for further investigation by the Grievance Committee to determine whether Chao made false statements, presented false evidence, and/or withheld exculpatory evidence, conduct that, if proved, could implicate the following then-applicable rules:
- Rules DR 7-102 and 1-102 prohibited attorneys from knowingly making false statements to the court, using evidence they know to be false, or engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
- Rules DR 7-103(b), 7-102(a)(3) and 7-109(a) required prosecutors to turn over evidence they know about.
What can be done about it: The grievance calls for the committee to investigate and issue public discipline, including suspension of Chao’s law license. It also calls for a broader investigation into other cases prosecuted by the same prosecutor, and to determine whether the DANYC’s 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.