Manhattan

Who:  A group of law professors filed an ethics complaint in March 2022 against attorney Margaret Finerty, alleging that Finerty engaged in misconduct while prosecuting Danny Colon and Anthony Ortiz on behalf of the District Attorney’s Office of New York County (DANY). The law professors filed the complaint with the Grievance Committee for the First Department Appellate Division, the body that handles ethics complaints against attorneys in Manhattan and the Bronx. 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. Colon and Ortiz. In the Colon case, the Court of Appeals overturned the two murder convictions on account of Finerty’s serious misconduct.

According to the complaint, the Court found that Finerty elicited false testimony from a key witness, who downplayed the benefits the prosecution had provided him in exchange for his testimony, by testifying that he only received a benefit in one criminal case. According to the court decision, the “District Attorney’s office had engaged in further activity on [the witness’] behalf that neither [the witness] nor the prosecutor revealed during the trial.” The witness had another criminal case in which Finerty had personally appeared in court to offer a plea deal and later contacted the prosecutor regarding the witness’s cooperation. Finerty had also contacted the Housing Authority on behalf of the witness’s grandparents and was aware that the witness was not arrested or charged when a gun was found in his hotel room.

The court found that Finerty not only failed to correct the witness’s false testimony, but “exacerbated” the impact of the false testimony by “repeating and emphasizing the misinformation” during her closing argument. The Court also found that Finerty should have turned over notes from interviews of two witnesses who offered exculpatory information.

Colon and Ortiz spent nearly 17 years in prison before their cases were finally dismissed in 2011.

What rules are involved: The ethics complaint notes that the Court of Appeals made clear that prosecutors, in their role as public officers, must “deal fairly with the accused and be candid with the courts.” The complaint notes that this duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness. 

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 alleges that Finerty’s conduct violated 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 that prosecutors make timely disclosures 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 punishment.
• Rules DR 7-102(a)(4) and 7-109(a) stated that lawyers may not conceal or knowingly fail to disclose any evidence that they had the legal obligation to reveal or produce.
• Rule 7-102(a)(4) prohibited attorneys from using perjured testimony or false testimony.
• Rule 1-102 generally prohibited attorneys from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. 
• Rule 1-102 prohibited attorneys from prejudicing the administration of justice or engaging in conduct that reflected adversely on their fitness as a lawyer.

What can be done about it: The law professors’ complaint calls on the Grievance Committee to investigate and issue public and severe discipline, including a lengthy suspension of Finerty’s law license or disbarment. It also calls for a broader investigation into other cases prosecuted by the same prosecutor, and to determine whether DANY’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, 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.