Jennifer Nocella – NY State Bar #3005519
Who: Law professors filed a grievance regarding Jennifer Nocella’s serious misconduct in prosecuting Alex Vielman on behalf of the Kings County District Attorney’s Office (KCDAO). Despite this misconduct, at the time of the complaint, Nocella had no record of public discipline in the New York Attorney Detail Report.
What they did: In People v. Vielman, the Appellate Division reversed the conviction due to Nocella’s misconduct in closing argument. When Vielman was first arrested, he made an exculpatory statement to the police and the court found that Vielman’s later statements at a hearing and trial were generally consistent with that initial statement. But the court found that in her summation, 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.”
Why it’s wrong: Prosecutors may not mislead the court or jury and multiple prohibitions on prosecutorial conduct 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.”
Moreover, 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 grievance identifies the following then-applicable rules that Nocella’s conduct likely violated:
- 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 that is prejudicial to the administration of justice.
What can be done about it: The grievance calls for the 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.
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.