Brooklyn

Who: A group of law professors filed an ethics complaint in March 2022 against attorney Jennifer Nocella, alleging that Nocella engaged in misconduct while prosecuting Alex Vielman on behalf of the Kings County District Attorney’s Office (KCDAO).The law professors filed the complaint with the Grievance Committee for 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. Vielman. In the Vielman case, the Appellate Division reversed the conviction due to Nocella’s misconduct in closing argument.

According to the complaint, when Vielman was first arrested, he made an exculpatory statement to the police and Vielman’s later statements at a hearing and trial were generally consistent with that initial statement. But the court found that Nocella implied to the jury that Vielman had tailored his trial testimony after listening to the other witnesses, noting to the jury that no other witness had that opportunity to sit and listen to other testimony and then testify. As the court held, “The prosecutor knew that her argument here rested on a false premise. Her argument was a blatant attempt to mislead the jury, and thus violated her responsibilities and the trust placed in her as a prosecutor.”

What rules are involved:  The ethics complaint notes that prosecutors may not mislead the court or jury and that multiple prohibitions on prosecutorial misconduct relate to dishonesty. Because they are representatives of the state, not lawyers for an individual, prosecutors possess a “special duty” not to mislead a judge, jury, or defense counsel. The Court of Appeals has made clear that prosecutors, in their role as public officers, must “deal fairly with the accused and be candid with the courts.” 

The complaint also notes that 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.” 

Prosecutors wield immense power, the power to seek punishment on behalf of the state, and should be held to the highest ethical standards. The ethics complaint alleges that Nocella’s conduct violated the following then-applicable rules:

• Rule 1-102(a)(4) (from the Code of Professional Responsibility, later replaced by the Rules of Professional Conduct) prohibited attorneys from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
• Rule DR 7-102(a)(5) prohibited attorneys from knowingly making a false statement of law or fact.
• Rules DR 1-102(a)(5) and (7) prohibited attorneys from engaging in conduct prejudicial to the administration of justice. 

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 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 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 open to the public.

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 entirely on court opinions, briefs and/or other documents cited therein.