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In a highly unusual move, a New York appellate court has suspended a former prosecutor for three years for lying to a judge about the whereabouts of a witness in a murder trial he was conducting three years ago. The Appellate Division, 2nd Department, in Matter of Stuart, 2003-09401, said that the conduct of Claude Stuart struck “at the heart of his credibility as a prosecutor and an officer of the court.” Stuart’s suspension, stemmed from the 2002 trial of Tyrone Johnson for the murder of a Jamaica, Queens, nightclub owner during a failed robbery. Stuart told Queens Supreme Court Justice Jaime A. Rios that he did not know the whereabouts of a woman whose testimony might have contradicted the account of a key witness to the alleged murder. Four days earlier, however, Stuart and two detectives interviewed the woman at her job. “The respondent falsely indicated on the record that he still had no knowledge of her whereabouts,” the 2nd Department wrote in its unanimous disciplinary ruling last week, confirming a three-year suspension recommended by a special referee. The court said that Stuart’s claim that he did not act out of venality and his other attempts at mitigation did not excuse his conduct. Two ethics experts said they could not recall the last time an attorney had been either suspended or disbarred in New York State for misconduct while working as a prosecutor. “I don’t know the last time this has happened,” said Bennett Gershman, a professor at Pace Law School and the author of “Prosecutorial Misconduct,” a treatise. “It’s startling to hear about that.” Barry Kamins, a partner at Flamhaft Levy Kamins & Hirsch and the former chair of the disciplinary committee for the 2nd and 11th Judicial Districts, said he did not know of a suspension or disbarment of a prosecutor in the last 20 years. “On occasion there may have been a letter of caution issued to a prosecutor, but I cannot recall an assistant district attorney ever being suspended or disbarred in this state for misconduct,” said Kamins, who chaired the committee from 1994 to 1998. A PREVIOUS ‘CAUTION’ Letters of caution are private, but in its ruling last week, the Appellate Division revealed that Stuart, 44, had received one in 1999 from the 9th Judicial District for another incident of prosecutorial misconduct that led to a new trial in a 1995 attempted murder case. The 2nd Department ordered the new trial because Stuart made inflammatory remarks to the jury during his summation, gave his opinion regarding the truth of a witness’ testimony and insinuated that a gun recovered from the defendant might have been used in the shooting in question, despite knowing that ballistics tests conclusively established that the gun was not used in the crime. “The prosecutor’s conduct in advocating a position which he knew to be false was an abrogation of his responsibility as a prosecutor,” the court wrote in People v. Walters, 251 AD2d 433 (1998). Stuart, who now works at the firm of Brand Glick & Brand in Garden City, N.Y., did not return a call seeking comment. His attorney, Jerome Karp, also did not return a call. District Attorney Richard A. Brown informed Justice Rios of the misconduct in November 2002 and agreed not to oppose a motion for a retrial. Stuart was demoted and resigned from the office a month later. Johnson was retried, convicted and sentenced to 20 years in prison. In his disciplinary proceeding, Stuart asked the 2nd Department to disaffirm the referee’s report largely based on his 12-year record in the district attorney’s office and his character. He said he had handled more than 70 felony trials and cited his service in the U.S. Army JAG Corps Reserve, as well as his devotion to the Dix Hills United Methodist Church. Stuart also presented character letters from two unidentified justices of the Supreme Court in Queens (the court’s disciplinary records were yet to be made public at press time). In addition, the court heard testimony from Stuart’s wife, his military chaplain, his church pastor, and professional and social acquaintances. Prosecutors have long been less likely to receive serious punishment from disciplinary committees, something that defense attorneys have complained has as much to do with politics as ethics. Gershman noted that investigating prosecutorial misconduct is often difficult. He added that defense attorneys are often reluctant to report prosecutors to disciplinary committees, as they work with them on a regular basis and need to maintain a good reputation for the purpose of plea bargains. “Defense attorneys and long-term prosecutors engage in mutually beneficial conduct,” Gershman said. “I think you see a reluctance by judges for the same reason. You don’t want to get a reputation as someone who is a whistleblower.” Gershman said that in Stuart’s circumstances, disbarment would not have been uncalled for. However, he added, “A three-year suspension from law practice is pretty stiff.” The 2nd Department said Stuart could apply for reinstatement six months prior to the completion of his suspension. Presiding Justice A. Gail Prudenti and Justices Anita R. Florio, Howard Miller, Robert W. Schmidt and Thomas A. Adams concurred on the ruling.

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