Six Queens prosecutors named in new batch of misconduct complaints
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A group of law professors filed 10 complaints against prosecutors for alleged Batson violations, including six complaints against current and former Queens assistant district attorneys. File Eagle photo by Jacob Kaye
By Jacob Kaye
A group of law professors this week released a number of prosecutorial misconduct complaints, over half which were made against current and former prosecutors with the Queens district attorney's office.
The complaints published by the professors, who are part of the Civil Rights Corp’s Accountability NY project, highlight instances where prosecutors attempted to strike potential jurors based on their race, otherwise known as a Batson violation.
Of the 10 prosecutors named in the complaints, two worked for the Queens district attorney’s office at the time of the alleged offense and six currently work for the Queens district attorney’s office. Each case of alleged prosecutorial misconduct in Queens occurred under the watch of former Queens District Attorney Richard Brown, who died in 2019 after serving as the borough’s DA for nearly 30 years.
The complaints detail a case in which a prosecutor used a “jury guide” that detailed which races and which socioeconomic groups to keep on or fight to eliminate from a jury and multiple instances of prosecutors working to kick a Black Queens resident off a jury despite the fact that a plurality of criminal defendants in New York are Black, year after year.
Each of the complaints are based on rulings by judges in which prosecutorial misconduct was found. All 10 of the complaints were filed with the state’s opaque Grievance Committee on Monday and published online by Accountability NY.
The law professors behind the project say they believe none of the prosecutors named in the complaints were ever formally disciplined by either the Grievance Committee or the district attorney they served under despite the judicial rulings.
“If in your job, if someone found that you were engaged in purposeful discrimination, and that's what a Batson violation is, I think you would be subject to some serious discipline,” said Steve Zeidman, a professor at CUNY Law School and a member of Accountability NY. “Yet prosecutors who engaged in this, as found by appellate courts, apparently suffered no discipline of any kind.”
“And that's mind boggling,” he added.
Prosecutors are often granted considerable latitude when it comes to making “peremptory challenges” to prospective jurors in a jury pool. The Batson rule, however, is supposed to prevent them from striking a juror based on the juror’s race – the rule was established in the late 1980’s, when the U.S. Supreme Court ruled that a defendant’s 14th Amendment’s rights are violated by such juror strikes.
And while the rule has been established for well over 30 years, the professors behind Accountability NY say Batson rule violations persist.
“Most people know the racist history of this country, of all white juries being used to deliberately, legally lynch Black men – and people think that’s history and it's a very shameful history, but we want to emphasize is that is not history,” said Bina Ahmad, a senior attorney at Civil Rights Corps.
“It’s still happening to this day, and despite over a century of Supreme Court precedent barring discriminatory strikes, in one form or another, prosecutors are still doing it,” Ahmad added.
Among the complaints is one against Christopher J. McGrath, a former prosecutor with the Queens DA’s office who is believed to currently be working as an attorney for the Police Benevolent Association.
In a 2020 ruling from former Queens Supreme Court, Criminal Term Administrative Judge Joseph Zayas, McGrath was found to have admitted to using a “jury selection guide” that Zayas called “abhorrent.”
The guide listed “good” Black neighborhoods for prosecutors to select jury members from and advises against selecting Hispanic or Jewish jurors.
A jury guide used by former Queens prosecutor Christopher McGrath. The document, which was revealed during a review of a case McGrath prosecuted in the 1990s, was used as evidence to support a claim that McGrath committed several Batson violations. Image via Accountability NY
It is believed McGrath used the cheat sheet during at least three separate trials, including a 1993, 1995 and 1996 trial, which respectively resulted in a 40 years-to-life in prison sentence, a 25 years-to-life sentence and a 10 year prison sentence for the various defendants.
A review of the cases found that McGrath used peremptory strikes against five Black prospective jurors, seven female prospective jurors and two Jewish jurors in one of the cases. In another case, nine of his 10 peremptory challenges were against potential jurors whose ethnic or religious group was detailed as a no-go on the jury guide McGrath used, the complaint said. In a third case, McGrath worked to strike six Black prospective jurors and one Hispanic juror.
The jury guide McGrath used – it’s unclear whether or not the prosecutor made the list himself, was given it by someone else, or if other prosecutors used it – was not discovered until the cases were reviewed and the convictions overturned nearly three decades later.
Zayas called the discovery of the jury guide “a smoking gun evincing pernicious and invidious discrimination clearly designed to eviscerate the constitutional right to be tried by a jury of one’s peers.”
In their complaint, the professors called for a full review of all of the cases McGrath prosecuted. Though similar large-scale reviews have been conducted for cases in which police officers with a pattern of offering unreliable testimony have testified, Zeidman said he was unaware of any DA’s office in New York City reviewing all past cases of a single prosecutor.
Accountability NY also filed a complaint against Rachel Buchter, who currently works in the Queens district attorney’s office as the bureau chief of the DA’s Felony Trials III Bureau.
This week’s complaint is the second filed by the group against Buchter. In 2021, the group filed a complaint stemming from a ruling from the Appellate Division that found that Buchter had improperly shifted the burden of proof to the defense during a 2010 trial.
The latest complaint against Butcher stems from an Appellate Division ruling that found that the prosecutor had “exercised her peremptory challenges in a discriminatory manner” during a 2005 trial.
Similar complaints were also filed against John Kosinski, Jonathan Selkowe and Michael Whitney, all of whom are currently employed by Queens District Attorney Melinda Katz, and Nicholas Cooper, a former prosecutor who previously worked under former DA Brown.
The complaints made against Queens prosecutors all stem from case reviews prompted by the DA’s Conviction Integrity Unit, which Katz created shortly after taking office in 2020.
Though the unit has reviewed dozens of cases and supported motions for the overturning of a number of convictions, the DA’s office has been relatively reluctant to cast blame on prosecutors – none of the overturned cases were originally prosecuted under Katz.
The sudden increase in reviewed cases is only one of the reasons Accountability NY has chosen to focus on Queens cases – a vast majority of their earlier complaints also regarded Queens prosecutors.
But Zeidman said the professors’ complaints against Queens prosecutors are not a result of the Conviction Integrity Unit’s work alone.
“It's not as if the effort and the research into uncovering cases where there were Batson violations deliberately focused on any one borough,” he said. “It's just a factual reality that the majority of the cases that you can find are coming from Queens County.”
“And we can all surmise, guess and think about the culture of that office – that's really for that office to explain,” Zeidman added.
The CUNY Law professor said that he appreciates the work Katz and the Conviction Integrity Unit has undertaken, noting that “by all accounts [the office is taking the case reviews] very, very seriously.
“But it also exposes what she inherited,” he added. “And the challenge for her is obviously how to respond to things that did not happen on her watch, but she's inherited them.”
In 2021, the Queens district attorney’s office and the City of New York attempted to prevent Accountability NY from publishing the prosecutorial misconduct complaints they had filed with the Grievance Committee.
The committee is prevented from publicly sharing complaints made against prosecutors, as are any investigations launched by a filed complaint. Because of the committee’s privacy rules, attorneys for the city and for Katz attempted to argue that the law professors had violated state law by posting the complaints publicly, regardless of whether or not the complaints were already public record as a result of judicial rulings.
The professors sued, and in June of last year, a judge ruled that the professors’ First Amendment rights had been violated by the attempt to cover up the complaints by the city. The case, which is being heard in federal court, is ongoing.
Citing the litigation, a spokesperson for the Queens DA’s office declined to comment on the specifics of the complaints filed against Queens prosecutors this week.
“As there is litigation pending as to how this office is able to respond to complaints filed with the grievance committee, we are unable to comment at this time,” the spokesperson said.
Correction: An earlier version of this story said that 11 complaints had been filed. There were 10 complaints filed.
