Brooklyn

Who: A group of law professors filed an ethics complaint in March 2022 against attorney Kenneth Rigby, alleging that Rigby engaged in misconduct while prosecuting Sami Leka on behalf of the Kings County District Attorney’s Office (KCDAO). The law professors filed the complaint with the Grievance Committee for the 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 they did: The ethics complaint, also known as a grievance, is based on a United States Court of Appeals decision, Leka v. Portuondo. According to the complaint, in the Leka case, the Court of Appeals determined that Rigby committed a Brady violation and reversed Leka’s conviction for murder.

According to the complaint, the court found that a police officer named Garcia was a witness to the crime. Garcia’s testimony made it very unlikely that Leka had shot the victim and the testimony would have had a “seismic impact” on the trial. But Prosecutor Rigby told Leka’s attorney, two years before trial, that an officer witness would identify Leka as the shooter. Then, only three business days before trial and two years after first disclosing that he had an officer witness, Rigby finally disclosed the officer’s name. That same day, Rigby finally also disclosed that the officer would actually not identify Leka. Rigby asked the court for an order barring the defense from speaking to the officer, which the court granted. Rigby never called Garcia to testify.

The complaint notes that in finding this to be a Brady violation, the Court reasoned there was “no doubt that the prosecutor had that information from the beginning of the case: Garcia was a police officer who witnessed a murder. And it [was] clear that the information was favorable to the defense. So there is really no question but that the government suppressed information that it was required to turn over.” The court found that Rigby “actively suppressed” the information for years leading to trial. The Court of Appeals noted, “[I]t is ridiculous to think that the prosecution did not know what a police officer saw as a witness to a shooting; yet the last-minute disclosure consisted of nothing but Garcia’s name and perhaps his address.”

According to the complaint, the late disclosure left the defense in an investigative and tactical disadvantage too close to trial, rendering the late disclosure insufficient. As the Court of Appeals explained, “The opportunity for use under Brady is the opportunity for a responsible lawyer to use the information with some degree of calculation and forethought. A responsible lawyer could not put Garcia on the stand without essential groundwork. And a responsible lawyer in the midst of the pressures and paranoias of trial may well deploy scarce trial resources doing other things… the options left open to the defense were to expend and perhaps waste scarce trial resources on a possible dry hole, or to call a witness cold, which would be suicidal. These are not opportunities for use. It is not enough for the prosecution to avoid active suppression of favorable evidence; Brady and its progeny require disclosure.”

The court reversed the conviction and Leka was finally freed after 11.5 years in prison. 

What rules are involved: The ethics complaint notes that one of the most damaging forms of prosecutorial misconduct is the Brady violation—when law enforcement suppresses exculpatory or impeachment evidence. When provided in a timely and transparent fashion, Brady disclosures can permit the defense to investigate and litigate different leads, present evidence that the prosecution’s case is inaccurate or that the testimony of the prosecution’s witnesses is inaccurate or false, present evidence of the accused’s innocence to the jury, and ultimately, to protect the accused from a wrongful conviction. According to the complaint, the National Registry of Exonerations found that suppression of Brady evidence played a role in over 44 percent of known wrongful convictions and 61 percent of known wrongful convictions for murder.

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 requests that Rigby’s conduct be investigated with respect to the following then-applicable ethical rules:

• Rule DR 7-103(b) (from the Code of Professional Responsibility, later replaced by the Rules of Professional Conduct) required a prosecutor to make timely disclosure of the existence of evidence known to the prosecutor that tended to negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment.
• Rules DR 7-102(a)(3) and DR 7-109(a) required disclosure, and prohibited knowing concealment, of evidence.
• Rule DR 7-102 stated attorneys were not to knowingly make a false statement to the court or use evidence they knew to be false.
• Rule DR 1-102 prohibited attorneys from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
• Rule DR 1-102 prohibited attorneys from engaging in conduct that was prejudicial to the administration of justice or that adversely reflected on their fitness to practice law.

What can be done about it: The law professors’ complaint calls on the Grievance Committee to investigate and issue public discipline, including suspending or revoking Rigby’s law license (disbarment). It also calls for a broader investigation into other cases prosecuted by the same prosecutor, and to determine whether the 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 of the outcome of this ethics complaint or even whether the complaint is being investigated. 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.

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.