Judge lifts veil on group investigating complaints against Queens prosecutors
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A judge this week ruled in favor of a group of law professors who in 2021 began publishing ethics complaints they had filed with the state’s grievance committee against current and former Queens prosecutors. The Queens district attorney’s office claimed the group had violated the law by making the complaints public. Eagle file photo by Jacob Kaye
By Jacob Kaye
A federal judge this week said that the public has the right to know more about state investigations into allegations of prosecutorial misconduct, a process that is currently shrouded in secrecy.
On Monday, federal Judge Victor Marrero ruled in favor of a group of law professors who in 2021 began publishing ethics complaints they had filed with the state’s grievance committee against current and former Queens prosecutors.
Marrero said that attempts made by the Queens district attorney’s office, the city and the state to suppress the publishing of those complaints, nearly all of which detailed allegations made in already-public judicial rulings, were unlawful.
“If the proceedings and records related to the grievance complaints may embarrass state prosecutors, the Supreme Court long ago acknowledged that public officials’ reputations are not a higher value that supersedes the First Amendment,” Marrero’s decision read.
Marrero’s decision applied specifically to the 21 complaints made by the law professors against Queens prosecutors, none of which have resulted in public disciplinary action from the grievance committees despite findings of wrongdoing by judges.
Marrero said that the Appellate Division, Second Department – which is led by Presiding Justice Hector LaSalle – and the court’s grievance committee can longer conceal the decisions they have made or will make regarding the complaints against Queens assistant district attorneys.
“The public cannot have faith in a process that it cannot see,” Morrero’s decision read.
The judge also denied an attempt by the state to have LaSalle removed from the lawsuit.
“This monumental decision pulls back the curtain on a very secretive discipline system, letting the public finally see what the Grievance Committees are doing with complaints of prosecutorial misconduct,” said Peter Santina, the managing attorney of the prosecutorial accountability project at Civil Rights Corps, the group that represented the law professors. “Let's find out why there has not been a single instance of public discipline from these complaints in the face of numerous allegations of serious misconduct by powerful government lawyers."
The ruling comes several months after New York City and the Queens district attorney’s office settled in the case, agreeing to cover around $200,000 in the professors’ legal fees. They also agreed in the settlement to allow the professors to publish the grievance complaints they filed or will file without threat of legal action.
The settlement, which was reached in April, has not been previously reported.
The Queens district attorney’s office did not respond to requests for comment on the settlement on Wednesday.
Al Baker, a spokesperson for the Office of Court Administration, said that “Presiding Justice LaSalle, named only in his official capacity, is reviewing the decision with the attorney general’s office, which has been representing him in this litigation.”
The law professors first began publishing prosecutorial misconduct complaints in 2021 on a website called Accountability NY.
Two of their earliest complaints regarded former Queens ADAs Brad Leventhal and Charles Testagrossa, who had been found by then-Queens Criminal Court Administrative Judge Joseph Zayas to have “deliberately withheld” information about potential suspects in a 1996 murder case that led to the wrongful conviction of three men, Gary Johnson, George Bell and Rohan Bolt.
The law professors filed complaints against Leventhal and Testagrossa citing the decision to vacate Johnson, Bell and Bolt’s convictions made by Zayas, who now serves as the second-most powerful judge in the state.
Four days after Zayas’ ruling, Testagrossa resigned from his post as chief of investigation in the Nassau County district attorney’s office. Leventhal, who was working at the time as the Queens Homicide Bureau chief, resigned several weeks later, citing “mutual concern that his continued employment had become a distraction from the critical, on-going work of the office.”
Neither Leventhal nor Testagrossa have faced public disciplinary action from the state’s grievance committee, nor did they face any internal disciplinary action in their respective district attorney offices.
Brad Leventhal (left), a former bureau chief in the Queens district attorney’s office, was found to have committed prosecutorial misconduct by a judge. He has yet to be disciplined publicly by the state’s grievance committee. Eagle file photo by Paul Frangipane
Not long after the complaints against Leventhal, Testagrossa and others were published on Accountability NY in 2021, the Queens district attorney’s office and attorneys for the City of New York attempted to force the professors to remove the complaints from the public’s eye and prevent them from publishing further complaints online.
They claimed that because of the grievance committee’s privacy rules, 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.
In June of 2022, a judge ruled that the professors’ First Amendment rights had been violated by the attempt to cover up the complaints by the city.
Since then, the professors have continued to publish grievances against prosecutors, none of which have resulted in disciplinary action.
Last year, they published a batch of nearly a dozen complaints against current and former prosecutors in the Queens DA’s office accused of attempting to strike potential jurors based on their race, otherwise known as a Batson violation.
The complaints detailed 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 were based on rulings by Appellate Division judges in which prosecutorial misconduct was found.
One of the complaints was filed against Christopher J. McGrath, a former prosecutor with the Queens DA’s office who is believed to have most recently been working as an attorney for the Police Benevolent Association.
In a 2020 ruling from 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 advised against selecting Hispanic or Jewish jurors.
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.”
McGrath has not been disciplined publicly by the grievance committee.
However, under the ruling issued by Marrero this week, the public will now have the right to view any disciplinary hearing held in McGrath’s case, the documents needed to understand those hearings including court orders, mortions, documentary evidence and docket sheets, and grievance committee dispositions.
