Michael Bushwack – NY State Bar # 4551420
Who: Law professors filed a grievance regarding Michael Bushwack’s serious misconduct while prosecuting Ryan Draper on behalf of the Nassau County District Attorney’s Office. Despite this misconduct, at the time of the grievance, Bushwack had no record of public discipline in the New York Attorney Detail Report.
What they did: In People v. Draper, the Nassau County Court found that prosecutor Bushwack “usurped the power” of, and improperly influenced, the grand jury, prejudicing Mr. Draper and justifying the dismissal of the three serious charges. Specifically, after the grand jury made an initial decision to dismiss certain charges in Draper’s case, prosecutor Bushwack provided an unsolicited re-charge of the grand jury on these three dismissed charges, resulting in a vote to indict on the previously-dismissed charges. The court ruled that on the basis of the record before it, Bushwack’s actions constituted “prosecutorial misconduct” that “undermined the integrity” of the grand jury. The court dismissed the charges.
Why it’s wrong: 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 rule that Bushwack’s conduct likely violated:
- Rule of Professional Conduct 8.4, prohibiting attorneys from engaging in conduct prejudicial to the administration of justice or reflecting adversely on their fitness to practice law.
What can be done about it: The grievance calls for the committee to investigate and issue public discipline, including suspension of Bushwack’s law license. It also calls for a broader investigation into other cases prosecuted by the same prosecutor, and to determine whether the Nassau County DAO 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.