Grievance Against Michael R. Whitney

Who: A group of law professors filed a grievance in March 2023 against attorney Michael R. Whitney, alleging that Whitney engaged in misconduct while prosecuting Corey Johnson on behalf of the Queens District Attorney’s Office (QDAO). The complaint was filed with the Grievance Committee for Second, Eleventh and Thirteenth Judicial Districts, the body that handles ethics complaints against attorneys in Brooklyn, Queens, and Staten Island. The following summary is based on the complaint.

What: The ethics complaint, also known as a grievance, is based on a court decision in People v. Johnson

According to the complaint, the Appellate Division held that Whitney excluded a Black prospective juror on the basis of her race in the 2018 trial of Corey Johnson. This racial discrimination in jury selection violated Batson v. Kentucky, requiring reversal of the convictions for possessing drugs and drug paraphernalia. The Appellate Division reasoned, “We agree with the defendant’s contention that the Supreme Court erred in denying the defendant’s Batson challenge as to S.K. The defendant correctly contends that the court erred in finding that the prosecutor’s race-neutral reason for striking S.K. was not a pretext for discrimination. Here, the record demonstrates that the articulated race-neutral reasons for challenging S.K. were not applied equally to exclude a prospective juror, N.Z., who was not black and could have been challenged by the prosecutor for the same reasons.” The court ruled that, “The striking of even a single prospective juror for a discriminatory purpose is constitutionally forbidden, and, therefore, we need not determine whether the peremptory challenges exercised by the prosecutor with regard to the other prospective black jurors were race-based.”

What rules are involved: The complaint notes that for many years, the United States’ long-held tradition of jury trials mostly meant juries of property-owning white male citizens sitting in judgment of anyone asserting their right to a jury trial. Race, gender, religion, and property ownership were often accepted as reasonable means to decide who could, and who could not, decide the fates of Americans as a juror. Despite over a century of litigation declaring discriminatory jury strikes unconstitutional, the practice among prosecutors continues.

The complaint notes that 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 alleges that Whitney’s conduct violated the following ethical rules:

  • Rule of Professional Conduct 8.4(d) prohibits lawyers from engaging in conduct inherently prejudicial to the administration of justice; and
  • Rule of Professional Conduct 8.4(h) prohibits lawyers from engaging in conduct that adversely reflects on the attorney’s fitness.

The complaint calls for the Grievance Committee to investigate the conduct under Rule of Professional Conduct 8.4(g), barring “unlawful discrimination.”

The complaint further notes that Whitney’s pretextual reason for the strikes arguably constitutes dishonesty in violation of Rule 3.3(a)(1) (knowingly making a false statement of fact to a tribunal), Rule 4.1 (knowingly making a false statement of fact to a person other than a client—here, the trial judge), Rule 8.4(b) (engaging in illegal conduct that adversely reflects on the lawyer’s honesty or trustworthiness or fitness as a lawyer),  and Rule 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). 

What can be done about it: The law professors’ complaint calls on the Grievance Committee to investigate and issue serious public discipline. It also calls for a broader investigation into the trials conducted by the Queens District Attorney’s Office from 1990 to the present, including an examination of the prosecutor’s jury selection notes, in light of the racist and sexist notes revealed in another Queens case, People v. Morant and Valdez. Finally, the complaint calls for an investigation into other cases prosecuted by the same prosecutor and to determine whether QDAO supervising and managing attorneys complied with their duties under Rule 5.1 of Professional Conduct.

Update: As of January 1, 2024, the Grievance Committee has not informed the complainants whether there was (or will be) an investigation, what any investigation revealed, and whether discipline was (or will be) imposed as a result of this alleged misconduct. 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 make its proceedings and findings in this matter transparent to the public.

Any member of the public is able to see an attorney’s record of public discipline on the Attorney Detail Report.

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.