Munoz v. Keane
| Decision Date | 04 November 1991 |
| Docket Number | 91-CIV-3195 (LJF).,No. 91-CIV-0954 (LJF),91-CIV-0954 (LJF) |
| Citation | 777 F. Supp. 282 |
| Parties | David MUNOZ, Petitioner, v. KEANE, Respondent. Zoilo LINARES, Petitioner, v. SENKOWSKI, Respondent. |
| Court | U.S. District Court — Southern District of New York |
David Munoz, pro se.
Simpson Thacher & Bartlett by John J. Kenney, Andrew S. Amer, New York City, for petitioner Zoilo Linares.
Robert M. Morgenthau, Dist. Atty., New York County by Nikki Kowalski, Asst. Dist. Atty., New York City, for respondents.
In these related cases, Linares v. Senkowski (91-CIV-3195) and Munoz v. Keane (91-CIV-0954), petitioners Zoilo Linares ("Linares") and David Munoz ("Munoz") seek writs of habeas corpus, primarily on the grounds that their prosecution by an individual not admitted to the bar of New York or any other state violated the due process clause of the federal constitution.1 Linares and Munoz were codefendants, tried by the same prosecutor, in a single trial. For the reasons stated below, the petitions are denied.
On November 9, 1985, Linares and Munoz were arrested with four other individuals2 and charged with first degree criminal possession and criminal sale of a controlled substance (cocaine). In May 1986, Linares and Munoz were tried on those charges along with Rosero and Sanchez-Medina,3 and on June 19, 1986, they were convicted on both counts. Linares was sentenced to concurrent prison terms of seventeen years to life, and Munoz was sentenced to concurrent terms of twenty years to life.
The prosecutor that tried Linares and Munoz on behalf of the People of New York was Daniel J. Penofsky ("Penofsky"), a former assistant district attorney in the Special Narcotics Prosecutor's Office. An investigation conducted by the District Attorney's office in March 1989 disclosed that while Penofsky had graduated from law school, he had never been admitted to practice law in New York, that he had never sat for and thus never passed the New York bar examination, and that he had never submitted the documents necessary to obtain admission to the New York bar upon waiver of the examination requirement. People v. Munoz, 153 A.D.2d 281, 550 N.Y.S.2d 691, 692 (1st Dept.1990). Once this information became public, Penofsky resigned as an assistant district attorney. Id.
Both petitioners claim that because Penofsky was not an attorney admitted to practice law in New York, their trial was inherently unfair, in violation of the due process clause of the 14th amendment.4 Both petitioners have also raised these claims in state court.5
Linares and Munoz both claim that their prosecution by a "layman" deprived them of the safeguards necessary to ensure a fair trial. According to petitioners, the fact that Penofsky committed fraud in representing himself as an attorney indicates that he did not and could not comply with the constitutionally-imposed obligations of a prosecutor, such as the prosecutor's duty to (1) review evidence favorable to the accused, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963); (2) disclose to the defense all witness statements relating to a witness' testimony, Jencks v. United States, 353 U.S. 657, 672, 77 S.Ct. 1007, 1015, 1 L.Ed.2d 1103 (1957); and (3) when challenged, present a neutral explanation for any apparently discriminatory use of peremptory challenges during jury selection. Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986). (Linares Petition at 15-16).6
Petitioners are correct in asserting that prosecutors have numerous obligations of constitutional dimensions.7 The Supreme Court has repeatedly emphasized that Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).
Petitioners claim that their trial was not a "fair legal proceeding, as required by the Due Process Clause" because "each statement and representation uttered by Penofsky during the course of the trial and ... pre-trial discovery is tainted by his unlawful conduct." (Linares Petition at 15). In essence, petitioners have formulated a new constitutional right — the right to be prosecuted by a licensed attorney. Apparently, no federal court has ever recognized such a right under the due process clause of the fourteenth amendment.
Petitioners cite only one state case, People v. Munson, 319 Ill. 596, 150 N.E. 280 (1925), imposing a requirement that a prosecuting attorney be licensed. In Munson, the Illinois Supreme Court vacated a criminal conviction on the grounds that the prosecutor was not an admitted attorney. In reaching that result, the Court noted that neither the state constitution nor any state statute required a criminal defendant to be prosecuted by a licensed attorney. 150 N.E. at 281. Nevertheless, the Court imposed such a requirement as a matter of common law, stating:
The state's attorney is intrusted with broad official discretion. He is given power to file informations, sign indictments, and to sue out writs of subpoena and summons, thereby, in a measure, exercising the power of the court in representing the people in their cases. Both logic and the weight of authority require that one who discharges those duties have the qualifications of such an officer ... If he be an attorney for the people, he must be qualified to represent his client at law. Id. at 281-82.
Despite the broad language quoted above, Munson is not analogous to this case. The central issue in Munson was the validity, as a matter of state law, of an indictment obtained by an unlicensed attorney. 150 N.E. at 280. The New York courts have already addressed that question in Carter. Moreover, the Illinois court did not even discuss whether any federal constitutional rights were threatened by the prosecutor's unadmitted status.
Contrary to petitioners' claims, a prosecution conducted by an unlicensed attorney does not "violate a defendant's right to fair procedure or deprive him of constitutional safeguards guaranteed under the Due Process Clause." (Linares Petition at 13). The due process clause requires a fair trial, not a perfect one. Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). While it is obviously preferable that a prosecutor be licensed to practice law in the jurisdiction in which he or she practices, the fact that a prosecutor is not admitted does not necessarily undermine the fairness of the trial process.8
Of course, the Second Circuit has found that the opposite does not hold true, and requires that a criminal defendant be represented by an admitted attorney. See United States v. Novak, 903 F.2d 883 (2d Cir.1990) (); Solina v. United States, 709 F.2d 160 (2d Cir.1983) (). However, defense counsel's distinct role in a criminal proceeding justifies treating the two situations differently.
A criminal defendant's right to counsel is a fundamental constitutional right, basic to a fair trial. See U.S. Const. amend. VI; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). "Assistance of counsel is mandated by the Sixth Amendment because lawyers `are the means through which the other rights of the person on trial are secured,' and through which the prosecution's case is subjected to `meaningful adversarial testing.'" Novak, 903 F.2d at 886 (quoting United States v. Cronic, 466 U.S. 648, 653, 656, 104 S.Ct. 2039, 2043, 2045, 80 L.Ed.2d 657(1984)). Defense counsel's sole responsibility in a criminal trial is to protect the defendant's interests.
By contrast, a prosecutor acts as a criminal defendant's adversary. While a prosecutor is obligated to seek justice, not only a conviction, a criminal defendant does not rely on a prosecutor to protect his rights. As a result, the fact that a prosecutor may be unlicensed to practice law has far fewer repercussions for the defendant than if his own counsel is not admitted. Where, as here, defense counsel and an impartial trial judge are capable of monitoring the prosecutor's conduct in order to ensure that no constitutional violations occur, it would be inappropriate to conclude that a due process violation automatically results from the prosecutor's unlicensed status.9
The rationale for the new constitutional right proposed by petitioners is, presumably, that a prosecutor who lies about his bar admission cannot be trusted and may lie about other matters. That rationale, while facially appealing, could be used to overturn convictions even where the prosecutor is an admitted attorney if a criminal defendant can obtain evidence of other "dishonest" behavior on the part of the prosecutor, such as a failure to pay parking tickets or failure to file timely income tax returns. While this type of dishonest conduct on the part of a prosecutor is undesirable and may in fact lead to a prosecutor's dismissal, it is not grounds for a presumption that whenever a prosecutor "lies" about any matter — whether related to the criminal prosecution or not — criminal proceedings conducted by that prosecutor during the time of the dishonest conduct were unfair. Such a rule would effectively put prosecutors on trial, a complete reversal of the normal procedure for criminal prosecutions.
We also cannot ignore the practical implications of accepting petitioners' due process claim — every defendant convicted by Penofsky during his fourteen-year tenure as a prosecutor would be entitled to a new trial. Petitioners have not demonstrated a sufficient basis for invalidating such a large number of cases and have not suggested any way to limit the...
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