Nicholas Fengos

PROSECUTOR

Nicholas Fengos – NY State Bar #2200087

BOROUGH

Brooklyn

Who: Law professors filed a grievance regarding Nicholas Fengos’s serious misconduct while prosecuting the case People v. Hatchett on behalf of the Kings County District Attorney’s Office (KCDAO). Despite this misconduct, at the time of the complaint, Fengos had no record of public discipline in the New York Attorney Detail Report.

What they did: 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. The court reversed Hatchett’s conviction, at the recommendation of the KCDAO’s Conviction Review Unit, in 2016.

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 a 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.

Using a pseudonym for Hatchett, and without including Fengos’s name, Kings County prosecutors addressed the case again in the KCDAO’s 426 Years Report. 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.   

Why it’s wrong: One of the most damaging forms of prosecutorial misconduct is the Brady violation—when law enforcement suppresses exculpatory or impeachment evidence. 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 suppression of Brady 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 identifies the following then-applicable ethical rules that the Grievance Committee should investigate:

  • 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 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 grievance calls for the committee to investigate and issue public discipline, including the suspension or revocation (disbarment) of 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.

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.