The Manhattan District Attorney’s subpoena compelling a criminal defense attorney to testify about his communication with a witness in his client’s case “was in all respects legal, ethical and proper,” a judge said.
“The People may summon before that grand jury any witness whom they believe has relevant information concerning the crime under investigation,” Manhattan Supreme Court Justice Charles Solomon (See Profile) ruled in People v. Hovan, Indictment 2557-13.
Meanwhile, another judge, responding to the attorney’s concerns about the chilling effect that such subpoenas could have on defense investigations, said the matter presented “serious policy considerations” but the practice is not commonplace.
Defense attorney Vinoo Varghese, of Varghese & Associates, was subpoenaed by the D.A.’s office in October 2013. Varghese’s client, Richard Hovan, was a teacher at Riverdale Country School charged with rape and engaging in sexual conduct with a teenage student.
He was indicted despite the favorable testimony of his ex-fiancee, Marina Bontkowski, in April 2012. After her testimony, the D.A.’s office started investigating if Bontkowski had committed perjury.
Prosecutors said they discovered communications between Hovan and Bontkowski showing that Hovan wanted her to speak with his lawyer, Varghese, about her prospective testimony to the grand jury. Prosecutors said they subpoenaed Varghese when “faced with clear evidence” that Bontkowski had perjured herself after being pursued by Hovan and Varghese.
After receiving the subpoena, Varghese moved to dismiss the indictment, citing the subpoena as “outrageous government conduct.” He argued that any conversation with a witness is protected under the attorney work-product doctrine.
He called the subpoena unconstitutional, unethical, and “a brazen attempt to deprive Mr. Hovan of his choice of counsel and deny him due process of law.” Varghese would have to withdraw from the case if forced to testify, he said.
Ultimately, Bontkowski pleaded guilty to a perjury misdemeanor in November 2013, admitting under oath she lied about an important detail during her initial testimony.
After she pleaded guilty, prosecutors withdrew the subpoena to Varghese.
In a Tuesday ruling, the judge said that Bontkowski’s guilty plea undercut Varghese’s claim that the D.A.’s office was only trying to deprive Hovan of his choice of counsel.
“It cannot seriously be argued that the People’s investigation into Bontkowski was, as defendant refers to it ‘spurious’ or ‘bogus,’ in light of Bontkowski’s admission of guilt,” Solomon said. “What defendant has labeled ‘outrageous government conduct’ was quite the opposite.”
Moreover, he said, the district attorney has “the statutory authority to submit to a grand jury any available evidence concerning the commission of a crime over which they have jurisdiction.”
“Here, based upon the evidence available to them, the People had a sound basis for issuing a subpoena to defendant’s attorney to appear before the grand jury investigating whether Bontkowski committed perjury,” Solomon wrote.
Since the subpoena was withdrawn after her guilty plea, Solomon said the issue was moot, and “no serious argument can be made that the mere issuance of a subpoena, by itself, in any way affected defendant’s right to counsel of his choice.”
“The issuance of the grand jury subpoena to defendant’s attorney was in all respects legal, ethical and proper,” Solomon concluded.
Varghese this week moved to recuse Solomon from hearing Hovan’s case, to disqualify the D.A.’s Office or at least recuse the prosecutors handling Hovan’s case and again to dismiss the indictment, citing further misconduct by prosecutors.
Meanwhile, Manhattan Supreme Court Justice Larry Stephen (See Profile), who handles grand jury subpoena matters, weighed in when Varghese moved to quash the subpoena.
Varghese argued the fear that the D.A. would subpoena an attorney’s work product would have a chilling effect on defense investigations. Attorneys from the National Association of Criminal Defense Lawyers had represented Varghese pro bono to quash the D.A.’s subpoena, while the Legal Aid Society filed supporting papers.
In a short letter last month to the parties, Stephen said the matter involved serious policy issues, but “the court does not believe that this practice is pervasive or even commonplace.”
“It is extremely rare that a defense counsel is subpoenaed before a grand jury or court to testify,” Stephen said. “As such an advisory opinion by the Court would be meaningless because each case would rest on its own particular set of facts.”
Stephen called the issue moot.
A spokesman for the Manhattan District Attorney declined to comment on the judges’ rulings.
In a statement to the Law Journal, Varghese said: “Judge Solomon’s decision demonstrates a remarkable insensitivity and outright disdain for the constitutional role of defense counsel. He reaches his conclusion that the D.A. acted properly without citing to any case law. His decision runs counter to the only courts to have addressed this issue, the Eighth Circuit Court of Appeals and the Southern District of New York, which have held that the such actions are constitutionally impermissible.”