Lindsay Gerdes – NY State Bar # 4581690
Who: Law professors filed a grievance regarding Lindsay Gerdes’s serious misconduct while prosecuting People v. Rowley and People v. Soto on behalf of the Kings County District Attorney’s Office (KCDAO). Despite this misconduct, at the time of the complaint, Gerdes had no record of public discipline in the New York Attorney Detail Report. In fact, following this misconduct, Gerdes became “Of Counsel” at the KCDAO, then became an Assistant United States Attorney in the Eastern District of New York before entering private practice.
What they did: In two separate cases, courts found that Gerdes engaged in improper conduct.
In People v. Rowley, the Appellate Division reversed the conviction due to Gerdes’s misconduct in cross-examination and closing argument. The court identified five different instances of improper conduct, including Gerdes improperly suggesting facts not in evidence, improperly suggesting to the jury that Rowley possessed a gun with an intent to harm someone, improperly raising an inflammatory and unsupported inference that Rowley had shot someone before, and improperly arguing without evidentiary support that Rowley had learned certain information during the pretrial hearing.
In People v. Soto, the Kings County Supreme Court found that Gerdes improperly handled a grand jury, leading the court to take the unusual step of dismissing the indictment. The court found that after the grand jury deadlocked, the prosecutor had a “colloquy” with the grand jury resulting in extensive marshaling of the evidence to the point of deliberation in the process, impairing the proceeding and creating a potential for prejudice. Based on Gerdes’s impairment of the grand jury, the Kings County Supreme Court dismissed the indictment (with leave to present evidence another time) noting that this was an exceptional remedy.
Why it’s wrong: It is fundamental to a fair trial that the prosecutor not suggest facts not in evidence or otherwise act as an unsworn witness. The prosecutor may not, through cross-examination, suggest facts not in evidence, because such conduct “amounts to a subtle form of testimony against the defendant, as to which the defendant may have no effective means of cross-examination.” There is a very real danger that jurors will assume that prosecutors have secret information and find someone guilty based on a prosecutor’s suggestive comment or question rather than actual evidence.
Grand juries are closed proceedings where prosecutors have tremendous influence, typically questioning witnesses without a judge present. Defense attorneys are not normally allowed to be present to make objections or arguments (unless the accused is the one testifying). Consequently, the prosecutor has “the duty not only to secure indictments but also to see that justice is done.” Prosecutors are required to be fair as they are supposed to serve two functions–advocate and impartial public officer.
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 ethical rules that Gerdes’s conduct likely violated:
- Rules of Professional Conduct 8.4(d) and 8.4(h) prohibit a lawyer from engaging in conduct prejudicial to the administration of justice, or engaging in any other conduct that adversely reflects on their fitness as a lawyer.
What can be done about it: The grievance calls for the committee to investigate and issue public discipline, including suspension of Gerdes’s law license. It also calls for a broader investigation into other cases prosecuted by the same prosecutor, and to determine whether the KCDAO’s 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.