Brooklyn

Who: A group of law professors filed an ethics complaint in March 2022 against attorney Nicholas Fengos, alleging that Fengos engaged in misconduct while prosecuting Andre Hatchett on behalf of the Kings County District Attorney’s Office (KCDAO). The law professors filed the complaint with the Grievance Committee for 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: The ethics complaint, also known as a grievance, is based on a KCDAO report regarding People v. Hatchett. According to the complaint, In the Hatchett case, the KCDAO’s Conviction Review Unit in 2016 found that Fengos committed a Brady violation by failing to tell the defense that the only trial eyewitness previously identified another person as the perpetrator.

The complaint notes that Fengos prosecuted Andre Hatchett in a murder case, obtaining what was later determined to be a wrongful conviction. Hatchett survived 24 years and 350 days in prison and was freed only after the Innocence Project and other defense counsel successfully sought a reinvestigation of the case. In 2016, the court reversed Hatchett’s conviction, at the recommendation of the KCDAO’s Conviction Review Unit.

According to the complaint, during Hatchett’s prosecution, Fengos failed to disclose a crucial piece of evidence to the defense: the only trial eyewitness had previously identified a different person–not Hatchett–as the perpetrator of the crime. The KCDAO later expressed the view that this monumental Brady violation was not malicious but rather the result of “carelessness.” The KCDAO also found that Fengos likely failed to tell the defense that the eyewitness had admitted smoking crack on the day of the homicide, despite the witness’s false testimony that he had never smoked crack cocaine in his life.

According to the complaint, Kings County prosecutors addressed the case again in the KCDAO’s 426 Years Report, using the pseudonym “Harrison” for Hatchett and without including Fengos’s name. In addition to Fengos’s failure to provide exculpatory evidence as noted above, the report found that Fengos’s cross-examination of Hatchett was problematic in various respects. Additionally, in his questioning of a defense witness, the report noted that Fengos improperly implied that the witness had previously failed to step forward as an alibi witness for Hatchett, when in fact the individual had done so.   

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. The complaint points out that 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, present evidence that the testimony of the prosecution’s witnesses is inaccurate or false, present evidence of the accused’s innocence to the jury, and ultimately, protect the accused from a wrongful conviction. It is unsurprising, then, that the National Registry of Exonerations found that concealing exculpatory 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 calls for the Grievance Committee to investigate Fengos’s conduct in relation 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, unknown to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment.”
• Rule DR 7-102(a)(3) prohibited attorneys from concealing or knowingly failing to disclose that which the lawyer was required to. 
• Rule DR 7-109(a) prohibited lawyers from suppressing any evidence that the lawyer or client had a legal obligation to reveal or produce.
• Rule DR 7-102(a)(4) prohibited attorneys from knowingly using perjured testimony or false evidence.
• 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 prejudicial to the administration of justice, or engaging in any other conduct adversely reflecting on their fitness to practice law.
• Rules EC 6-1 and DR 6-101 mandated that an attorney act with proper care and with adequate preparation.

What can be done about it: The law professors’ complaint calls for the Grievance Committee to investigate and issue public discipline, including suspending or revoking Fengos’s law license. It also calls for a broader investigation into other cases handled by the same prosecutor and to determine whether 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 be transparent in its proceedings and findings in this matter.

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.