The Binghamton Press & Sun-Bulletin has been accused of defamation by Derek Heyliger, whose arrest photo is inset left, for a series of articles in 2010 on gang violence. Inset right is attorney Thomas Jackson, who prosecuted Heyliger and has been disqualified from representing the paper. ()
A former county prosecutor now in private practice has been disqualified from defending a newspaper in Binghamton, N.Y., in a defamation action brought by a man the attorney once prosecuted.
Northern District Magistrate Judge David Peebles (See Profile) ruled that ethical canons and court precedent prohibit Thomas Jackson from defending the Binghamton Press & Sun-Bulletin and seven of its employees because of the knowledge he may have acquired about Derek Heyliger when Jackson prosecuted him as an assistant in the Broome County District Attorney’s office.
“Permitting Attorney Jackson to defend the Binghamton Press defendants against plaintiff’s accusations of defamation … would allow him the opportunity to appeal to, and quite possibly rely upon (even if unwittingly), his knowledge previously acquired through the criminal prosecution of plaintiff,” Peebles wrote from Syracuse in Heyliger v. Collins, 3:11-cv-1293.
The Binghamton Press defendants are among more than two dozen individuals or entities named in Heyliger’s suit. He contends that following his Sept. 12, 2010 arrest in Binghamton, he was libeled by articles in the Press & Sun-Bulletin that associated him with a rash of drug-related violence that District Attorney Gerald Mollen and other law enforcement officials traced to gangs migrating into the area from New York City.
One story linked Heyliger to the Bloods under the headline “Biggest Street Gang in Binghamton.”
Heyliger’s suit contends that Mollen and other law enforcement officials fed false information to the newspaper tying his arrest to a federal sweep of gang activities that Heyliger said he was not involved in. He also suggested that Jackson worked for Mollen during the period in question and by implication may have aided in those alleged efforts to tie him to the gang activities, Peebles said.
Heyliger, a state prison inmate appearing pro se, asked Peebles to disqualify Jackson and his firm, Jackson Bergman of Binghamton, from representing the newspaper and its employees, citing a violation of Rule 1.11 of the New York Rules of Professional Conduct.
That provision bars a lawyer “who has formerly served as a public official or employee of the government” from representing a client in connection with a matter “in which the lawyer participated personally and substantially as a public officer or employee.”
Heyliger argued that Jackson had prosecuted him for several crimes, including drug-related conspiracy, felony assault and tampering with evidence during Jackson’s tenure as an assistant district attorney from 2002 to 2011.
Peebles conceded that the extent of Jackson’s involvement, if any, in providing information to the Binghamton newspaper about Heyliger’s alleged gang ties is unclear from the complaint. The magistrate judge also noted that Jackson’s affidavit provided no dates or information about those previous prosecutions and said nothing about Heyliger’s claim that Jackson prosecuted Heyliger in 2010 on gang assault charges that Heyliger said law enforcement officials tried to tie to Bloods-related gang activities.
“There is no doubt, however, that Attorney Jackson was employed by the BCDA [Broome County District Attorney] during the times relevant to this lawsuit, and that Attorney Jackson, as a Broome County ADA, personally prosecuted plaintiff for several crimes, which involved investigations by several law enforcement agencies and the use of electronic surveillance,” Peebles wrote.
He said a number of federal court precedents in which former prosecutors were disqualified from civil cases because of the knowledge they acquired while working for the government support his findings, including Gen. Motors Corp. v. City of New York, 501 F.2d 639 (2nd Cir. 1974) and Woods v. Covington Cnty. Bank, 537 F.2d 804 (5th Cir. 1976).
Peebles noted that Rule 1.11 could allow Jackson to serve as the newspaper’s attorney if the district attorney’s office gave its informed, written consent.
But he said that would make little apparent difference in this case.
“It is difficult to see how the BCDA’s consent would eliminate risk of detriment to the public’s trust in the integrity of the legal bar,” Peebles wrote.
Heyliger, 34, is serving a 14-year sentence in state prison for first-degree assault and second-degree criminal possession of a weapon. He was convicted of the shooting of a man in Binghamton about a month before his arrest in September 2010 that Mollen linked to New York City-based gang violence.
Jackson, whose partner Benjamin Bergman also stepped down as an assistant Broome County district attorney in 2011 to form Jackson Bergman, said in an affirmation that neither he nor Bergman worked on the case in which Heyliger was linked to the Bloods.
“I vehemently deny being a part of any conspiracy to violate Mr. Heyliger’s civil and/or constitutional rights,” Jackson said in his answer to Heyliger’s motion to disqualify him. “I further deny being responsible for any of the ‘culpable conduct’ which the plaintiff has alleged in his motion and complaint. I also deny being the ‘confidential source’ by which the Binghamton Press became aware of Mr. Heyliger’s arrest.”
Jackson did not return a call for comment Tuesday.
Peebles ruling may be appealed to District Judge Norman Mordue, who is overseeing the Heyliger v. Collins litigation.