Queens

Who: Law professors filed grievances against attorney Rachel E. Buchter in 2021 and 2023 alleging she committed prosecutorial misconduct in separate matters. The law professors filed both complaints 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 2021 grievance noted that Buchter had been recently identified as the Bureau Chief of the Felony Trials III Bureau at the Queens District Attorney’s Office. According to the 2023 grievance, another, more recent press release also identified Buchter as the Bureau Chief.

Unfortunately, the Grievance Committee has not informed the professors or the public of the outcome of the 2021 ethics complaint or even whether the complaint was, or is, being investigated. We call on the Grievance Committee to be transparent in its proceedings and findings in this matter.

To our knowledge, the Queens District Attorney’s Office has also not commented on the alleged misconduct underlying the 2021 complaint, or publicly explained why Buchter remains in a supervisory position.

The following summary is based on the complaints.

March 2023 Complaint: The ethics complaint, also known as a grievance, is based on a court decision, People v. Hall.

According to the complaint, in the case of People v. Hall, the Appellate Division held that Buchter “exercised her peremptory challenges in a discriminatory manner” by removing a Black potential juror. The complaint notes that the court further concluded that Buchter’s nonracial explanations for striking the Black juror were pretextual and that her improper removal of the juror violated Batson v. Kentucky, requiring reversal of the convictions for robbery and criminal possession of a weapon.

May 2021 Complaint: The complaint is based on a court decision in People v. Thompson.

According to the complaint, Buchter committed misconduct in closing argument in People v. Thompson, when she improperly argued that Thompson had an obligation or an option to prove his innocence by submitting to DNA testing. The complaint notes that the Appellate Division found that Buchter’s argument improperly shifted the burden of proof from the state to the defendant.

Why It’s Wrong:

The 2023 complaint notes that for many years, the United States’ long-held tradition of jury trials mostly meant juries of property-owning white male citizens sitting in judgment of anyone asserting their right to a jury trial. Race, gender, religion, and property ownership were often accepted as reasonable means to decide who could, and who could not, decide the fates of Americans as a juror. Despite over a century of litigation declaring discriminatory jury strikes unconstitutional, the practice among prosecutors continues.

The 2021 complaint notes that the Constitution requires that a prosecutor shoulder the burden of proving beyond a reasonable doubt every element of a charged crime. Accordingly, any remark by a prosecutor that attempts to shift the burden of proof to the defense is improper and impermissible. In particular, it is error for a prosecutor to argue that the defense bears the burden of producing trial evidence to prove innocence.

Prosecutors wield immense power, the power to seek punishment on behalf of the state, and should be held to the highest ethical standards.

The 2023 grievance alleges that Buchter’s conduct violated the following ethical rules:

• Rules 1-102(a)(5) and DR 1-102(a)(7) (from the Code of Professional Responsibility, later replaced by the Rules of Professional Conduct) prohibited lawyers from engaging in conduct that was prejudicial to the administration of justice or in any conduct that adversely reflected on the lawyer’s fitness to practice law.

The complaint further notes that the Grievance Commitee should investigate Buchter’s pretextual reason for striking the juror, as it arguably constitutes dishonesty in violation Rule DR 7-102, which prohibited attorneys from knowingly making a false statement of law or fact and Rule DR 1-102, which prohibited attorneys from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.”

The 2021 grievance alleges that Buchter’s conduct violated the following rules:

• Rules 8.4(d) and 8.4(h), which prohibit a lawyer from engaging in conduct that is prejudicial to the administration of justice or that adversely reflects on the lawyer’s fitness as a lawyer.

What can be done about it: Both complaints call on the Grievance Committee to investigate and issue serious public discipline. The 2023 complaint also calls for a broader investigation into the trials conducted by the Queens District Attorney’s Office from 1990 to the present, including an examination of the prosecutor’s jury selection notes, in light of the racist and sexist notes revealed in another Queens case, People v. Morant and Valdez. Finally, both complaints call for an investigation into other cases prosecuted by the same prosecutor and to determine whether QDAO supervising and managing attorneys complied with their duties under Rule 5.1 of Professional Conduct.

Note: This is a summary based on the grievances, click on the grievances 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 on court opinions, briefs and/or other documents cited therein.