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Caught Between a Rock and a Hard Place
Friday, October 25th, 2013
Robert Wechsler
What can a local official do when he is required to withdraw from a
matter that involves a close personal friend who's in hot
water due to that official's feud with another official? What do you do when you're caught between a rock and a hard place? The
district attorney of Putnam County, NY is faced with this odd and
difficult mix of personal and public obligations, at least if what
he is saying is true.
According to an article in today's New York Times, the D.A.'s personal trainer and close friend was accused of the rape of a 13-year-old in the area under the D.A.'s jurisdiction. The D.A. publicly withdrew from the matter and had it handled by the district attorney in an adjoining county, which was the right thing to do. But secretly he gave money to his friend for his legal expenses and gave his friend legal advice through his friend's girlfriend, who had also been the D.A.'s nanny. In addition, after his friend's first lawyer removed himself from the case, saying that the D.A. was providing contradictory advice, the D.A.'s brother-in-law became his friend's lawyer.
Another problem was that the D.A. had an ongoing political feud with the sheriff whose office arrested the D.A.'s friend (both are elected officials). This case became a political football between them, leading to the D.A. filing a defamation suit against the sheriff in August and accusing the sheriff of having arrested the friend "for no other reason than his relationship with me," which would be the most defamatory statement of all, if it weren't true.
This week, based on the sheriff's allegations, the neighboring district attorney asked a judge to look into the Putnam County D.A.'s conflicts of interest. The D.A. admits to having provided money for legal expenses and answered his friend's girlfriend's legal questions. But he insists this was the right thing to do.
His spokesperson is quoted as saying, “At all times, the D.A. took every appropriate action to ensure all ethical standards were met. ... Mr. Levy could have abandoned his friend of over ten years and allowed political forces to rip him apart like wild dogs fighting over a steak. Instead, Mr. Levy stood by his friend and helped contribute to his legal expenses to ensure he had an adequate defense.”
Bennett L. Gershman, an expert on prosecutorial ethics, told the Times that, even though the D.A. withdrew from the matter as a D.A., he is still the chief prosecutor and had no business aiding a suspect accused by his county’s sheriff. He also pointed out that Mr. Levy may have received confidential information from the sheriff’s office before he withdrew from the matter.
There's no doubt that, as an official, the D.A. should have had nothing to do with the case. But as a friend, what should he have done? The D.A. is just the friend someone would want in such a situation, and yet he is the one person who is not allowed to help. Most people have other friends who can help them get a good lawyer and help them pull money together to pay for the lawyer. But what if the friend didn't have anyone else to turn to?
This is where a public waiver process can be important. If the D.A. could convince an independent body that the arrest of his friend was due to his feud with the sheriff, that the friend had no one else to turn to for money and advice, and that the D.A. had no confidential information that he could share with his friend, such a body could conceivably allow the D.A. to help, at least in limited ways. For more on waiver processes, see the relevant section of my book Local Government Ethics Programs.
There is another consideration here, which the independent body would have to consider. The friend's original attorney says that the D.A.'s involvement in the matter could lead to the dismissal of the state's case against the friend. In other words, by intervening, the D.A. could get his friend off, although possibly at the cost of his losing his position as D.A. or even being disbarred. It's unlikely that the D.A. intended to succeed in this way, but he likely knew that this was a possible outcome, especially since he knew that his friend's original attorney knew about his involvement.
Whatever an official does in a conflict situation, it should be done publicly. If it cannot be done publicly, it should most likely not be done at all.
Robert Wechsler
Director of Research-Retired, City Ethics
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According to an article in today's New York Times, the D.A.'s personal trainer and close friend was accused of the rape of a 13-year-old in the area under the D.A.'s jurisdiction. The D.A. publicly withdrew from the matter and had it handled by the district attorney in an adjoining county, which was the right thing to do. But secretly he gave money to his friend for his legal expenses and gave his friend legal advice through his friend's girlfriend, who had also been the D.A.'s nanny. In addition, after his friend's first lawyer removed himself from the case, saying that the D.A. was providing contradictory advice, the D.A.'s brother-in-law became his friend's lawyer.
Another problem was that the D.A. had an ongoing political feud with the sheriff whose office arrested the D.A.'s friend (both are elected officials). This case became a political football between them, leading to the D.A. filing a defamation suit against the sheriff in August and accusing the sheriff of having arrested the friend "for no other reason than his relationship with me," which would be the most defamatory statement of all, if it weren't true.
This week, based on the sheriff's allegations, the neighboring district attorney asked a judge to look into the Putnam County D.A.'s conflicts of interest. The D.A. admits to having provided money for legal expenses and answered his friend's girlfriend's legal questions. But he insists this was the right thing to do.
His spokesperson is quoted as saying, “At all times, the D.A. took every appropriate action to ensure all ethical standards were met. ... Mr. Levy could have abandoned his friend of over ten years and allowed political forces to rip him apart like wild dogs fighting over a steak. Instead, Mr. Levy stood by his friend and helped contribute to his legal expenses to ensure he had an adequate defense.”
Bennett L. Gershman, an expert on prosecutorial ethics, told the Times that, even though the D.A. withdrew from the matter as a D.A., he is still the chief prosecutor and had no business aiding a suspect accused by his county’s sheriff. He also pointed out that Mr. Levy may have received confidential information from the sheriff’s office before he withdrew from the matter.
There's no doubt that, as an official, the D.A. should have had nothing to do with the case. But as a friend, what should he have done? The D.A. is just the friend someone would want in such a situation, and yet he is the one person who is not allowed to help. Most people have other friends who can help them get a good lawyer and help them pull money together to pay for the lawyer. But what if the friend didn't have anyone else to turn to?
This is where a public waiver process can be important. If the D.A. could convince an independent body that the arrest of his friend was due to his feud with the sheriff, that the friend had no one else to turn to for money and advice, and that the D.A. had no confidential information that he could share with his friend, such a body could conceivably allow the D.A. to help, at least in limited ways. For more on waiver processes, see the relevant section of my book Local Government Ethics Programs.
There is another consideration here, which the independent body would have to consider. The friend's original attorney says that the D.A.'s involvement in the matter could lead to the dismissal of the state's case against the friend. In other words, by intervening, the D.A. could get his friend off, although possibly at the cost of his losing his position as D.A. or even being disbarred. It's unlikely that the D.A. intended to succeed in this way, but he likely knew that this was a possible outcome, especially since he knew that his friend's original attorney knew about his involvement.
Whatever an official does in a conflict situation, it should be done publicly. If it cannot be done publicly, it should most likely not be done at all.
Robert Wechsler
Director of Research-Retired, City Ethics
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