Michael Palkhiwala – NY State Bar #4136750
Who: Law professors filed a grievance regarding Michael Palkhiwala’s serious misconduct while prosecuting Tyrone Anderson on behalf of the Kings County District Attorney’s Office (KCDAO). Despite this misconduct, at the time of the complaint, Palkhiwala had no record of public discipline in the New York Attorney Detail Report. To the contrary, at the time of the complaint, Palkhiwala was in private practice and noted his prosecutorial experience to potential clients online.
What they did: In People v. Anderson, the Appellate Division found that Palkhiwala made inflammatory remarks, denigrated the defense, and improperly commented on the accused’s pre-arrest silence. Palkhiwala prosecuted Anderson for burglary and related charges, and a jury convicted after a trial in 2011. Though the Appellate Division reversed the conviction on a different ground, the court addressed Palkhiwala’s misconduct and noted its disapproval, finding that “it was improper for the prosecutor to persist in making purposefully inflammatory remarks designed to appeal to the jury’s sympathy, in disregard of the Supreme Court’s repeated admonitions.” The court noted that Palkhiwala improperly referenced Anderson’s pre-arrest silence, though New York state law does not permit prosecutors to use a defendant’s pretrial silence in their direct case, whether or not the silence occurred pre- or post-arrest.
Why it’s wrong: As far back as 1899, the New York Court of Appeals cautioned prosecutors against appealing to “prejudice” or seeking conviction “through the aid of passion, sympathy or resentment.” The Court of Appeals has explained that a prosecutor must not vouch for the strength of her own case because of the “possible danger that the jury, impressed by the prestige of the office of the District Attorney, will accord great weight to the beliefs and opinions of the prosecutor.”
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 Palkhiwala’s conduct likely violated:
- Rules 8.4(d) and 8.4(h) mandate that a lawyer shall not engage in conduct that is prejudicial to the administration of justice or engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.
What can be done about it: The grievance calls for the committee to investigate, sanction and possibly suspend Palkhiwala’s law license for these grave incidents of misconduct. It also calls for a broader investigation into other cases prosecuted by the same prosecutor, and to determine whether KCDAO 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.