Professors’ free speech rights violated in case against Queens DA

A federal judge ruled this week that a group of law professors had their First Amendment rights violated when the city attempted to prevent them from publishing complaints of prosecutorial misconduct against Queens assistant district attorneys online last May. Photo by Walter Karling

By Jacob Kaye

A group of New York law professors had their right to free speech violated last year when the city’s top attorney attempted to prevent them from publicly publishing a number of misconduct claims against nearly two dozen current and former Queens prosecutors, a judge ruled this week.

Federal Judge Victor Morrero ruled earlier this week that the group of law professors with Accountability NY, a nonprofit that seeks to bring accountability to district attorneys offices throughout the state, had their First Amendment rights violated after then-New York City Corporation Counsel Georgia Pestana and her predecessor sought to prevent the group from publishing prosecutorial misconduct grievances they had filed themselves online.

Pestana’s predecessor, James Johnson, penned a letter to the state’s Grievance Committee shortly after Accountability NY published the grievances in May 2021. In the letter, Johnson told the committee, which opaquely rules on instances of prosecutorial and attorney misconduct, that he believed the professors had violated the committee’s rules dictated by a state law known as Section 90(10) by making the complaints public.

The letter also vaguely requested that the committee potentially ignore the content of the complaints because of the alleged violation of privacy.

“The very public campaign surrounding this and other similar complaints is contrary to both the law and the principles on which the grievance process is based,” Johnson wrote. “As your office reviews this complaint, I respectfully request that your Committee consider the manner in which it was filed.”

However, Morrero said this week that corporation counsel’s response to the publishing of the complaints was improper, adding that the professors didn’t violate the law by putting the claims of misconduct out in the open because they were grievances they filed themselves.

“The Court concludes that if Section 90(10) is being used to block Plaintiffs’ publication of their own grievance complaints, the statute is being applied in an unconstitutional manner,” Morrero wrote.

In a statement to the Eagle, Nicholas Paolucci, a spokesperson for the city’s Law Department, which is representing the Queens district attorney’s office in the case said: “We agree that prosecutors who engage in misconduct should be held accountable and we respect the First Amendment.”

“Here, the Corporation Counsel was simply trying, in good faith, to comment on the matter and provide context,” he added. “Corporation Counsel thought it was important for committee members to know that the professors were engaged in a broader and very public campaign involving multiple grievances sent en masse to various committees. We are reviewing the court’s decision and determining next steps.”

Cynthia Godsoe, a professor at Brooklyn Law School and one of the plaintiffs in the case, said she was relieved by the decision.

“It's just really nice to have a court affirm that their criticism, and even threats that we were doing something unethical, [were unfounded],” Godsoe said. “Obviously, that's something that has been hanging over our heads. No matter how confident we were, there is the possibility that they were going to take some action against us.”

The prosecutorial misconduct claims, all of which were written based off of prior judicial rulings, were the first of many the group hopes to file with the committee and make public online.

The group started with cases in Queens, they said, because of the Queens district attorney’s office’s recently launched Conviction Integrity Unit. The unit, which hears claims of wrongful convictions in Queens, has sought to reverse a number of convictions over the past two years and has put past potential prosecutorial misconduct on the record.

Accountability NY’s broader goal is to shed light on a process that’s currently hidden from the public’s view.

Claims against prosecutors are filed with a state Grievance Committee. The complaints themselves are private, as are the committee’s investigations – committees can’t even confirm or deny if an investigation has or is currently taking place.

The lack of transparency means that prosecutors can act with impunity, the law professors say.

“When you look at the complaints, what you see individually, and then, as well, collectively, is this sense that rules don't apply to the people who were prosecuting those cases,” said Steve Zeidman, a professor at the CUNY School of Law and one of the plaintiffs. “It's transparency both for people to understand about the power dynamic and the way it can be abused.”

“But also, I hope and fully expect that it will have an impact on individual prosecutors going forward,” he added. “This is being watched, there are rules and regulations, and that their job is not to secure a conviction at all costs – you should make very sure that what you're doing comports with the rules.”

Among the grievances filed by Accountability NY were complaints against Brad Leventhal and Charles Testagrossa. The pair of former Queens assistant district attorneys were at the center of the wrongful conviction of three Queens men who collectively spent three quarters of a century in prison for a double murder they did not commit.

Leventhal and Testagrossa withheld exonerating evidence and relied on dubious witnesses during the prosecution of the men, George Bell, Gary Johnson and Rohan Bolt.

Leventhal, who had risen the ranks of the Queens district attorney’s office to serve as the head of its homicide unit, and Testagrossa, who moved to the Nassau County district attorney’s office, both resigned from their respective posts last year when then-Queens Supreme Court, Criminal Term Administrative Judge Joseph Zayas said the two acted improperly during the prosecution.

Bell recently filed a $50 million lawsuit against the city for the wrongful conviction.

Whether or not an investigation was launched into their alleged misconduct is unclear. If a committee rules that misconduct took place, the complaint and the ruling would be made public. However, New York’s grievance committees rarely rule against prosecutors, according to the professors.

While their broader goal is to shed more light on prosecutorial misconduct, as well as the system by which it is rectified, the professors say that following the judicial ruling, they’ll begin to file and publish additional grievances, including against Queens prosecutors, but also against prosecutors throughout the city.

“The most important thing about the decision is that that chilling effect is lifted, that we now feel like we have judicial authority, supporting what we already believe to be the case based on our own research and ethics opinions, that what we're doing certainly comports with the law, let alone being a valuable public service,” Zeidman said.

“The goal is to follow the ethical rules, follow the constitutional rules where they take you,” he added. “Too many people have been harmed because [prosecutors] were breaking the rules. It’s kind of ironic when you think about that – they're prosecuting people for breaking rules.”