Queens

Who: Law professors filed grievances against attorney John Kosinski in 2021 and 2023 alleging that he committed prosecutorial misconduct in separate matters. The law professors filed both complaints 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 2021 Grievance noted that Kosinski had been recently identified as a Senior Deputy Bureau Chief at the Queens District Attorney’s Office. According to the 2023 grievance, another, more recent press release also identified Kosinski as the Senior Deputy Bureau Chief.

Unfortunately, the Grievance Committee has not informed the professors or the public of the outcome of the 2021 ethics complaint or even whether the complaint was, or is, being investigated. We call on the Grievance Committee to be transparent in its proceedings and findings in this matter.

To our knowledge, the Queens District Attorney’s Office has also not commented on the alleged misconduct underlying the 2021 complaint, or publicly explained why Kosinski remains in a supervisory position.

The following summary is based on the complaints.

March 2023 Complaint: The ethics complaint, also known as a grievance, is based on a court decision, People v. Langston.

According to the complaint, in the Langston case, the Supreme Court, Queens County, found that Kosinski improperly removed a prospective juror in violation of the State Constitution, making “a religious-based peremptory challenge… to exclude an Islamic juror,” which led the court to reinstate the prospective juror and to rebuke Kosinski’s “impairment of the integrity of the judicial system.” The complaint notes that the court found that Kosinski failed to provide a sufficient neutral explanation for his challenge of the juror; rather, he had “purposefully” used a peremptory challenge to exclude a prospective juror “because of his religion,” Islam.

May 2021 Complaint: This ethics complaint is primarily based on a court decision, People v. Anderson.

According to the complaint, in Anderson, the Appellate Division reversed the conviction because Kosinski had disobeyed the trial judge’s pretrial ruling, made prejudicial remarks that “were clearly intended” to suggest the defendant’s propensity for criminal conduct, denigrated the defense, and vouched for his two key witnesses. The court concluded that “the cumulative effect of the prosecutor’s misconduct during cross-examination and on summation deprived the defendant of a fair trial.”

Why It’s Wrong:

The 2023 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 2021 complaint notes that in closing arguments (“summation”), the prosecutor’s task is to explain how evidence introduced at trial applies to the legal elements of the charged offenses. Thus, prosecutors “must stay within the four corners of the evidence” and are not permitted to make arguments that rely on facts that are not in evidence. Prosecutors are not permitted to engage in prejudicial, inflammatory or misleading arguments, express their “personal belief or opinion as to the truth or falsity of any testimony or evidence,” also known as vouching, appeal to the jurors’ sympathies or fears, or denigrate the defense, defense counsel or the defendant.

Prosecutors wield immense power, the power to seek punishment on behalf of the state, and should be held to the highest ethical standards.

Both grievances alleges that Kosinski’s conduct violated the following ethical rules:

• Rules 1-102(a)(5) and 1-102(a)(7) (from the Code of Professional Responsibility, later replaced by the Rules of Professional Conduct) prohibiting lawyers from engaging in conduct that was prejudicial to the administration of justice or that adversely reflected on the lawyer’s fitness to practice law.

What can be done about it: Both complaints call on the Grievance Committee to investigate and issue serious public discipline. The 2023 complaint 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, both complaints call 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.

Note: This is a summary based on the grievances, click on the grievances 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.