If any person exemplifies the futility of trying to discipline a New York State prosecutor, it is Mary E. Rain, District Attorney of St. Lawrence County in upstate New York. Rain is a former police officer; assistant district attorney; public defender, until she was fired; and District Attorney, a position she won in 2013 after a vicious and unethical campaign. In her brief tenure as D.A. she has made a mockery of the justice system. Indeed, her professional career has been littered with lawless conduct, contempt for the justice system, and an almost pathological ability to sow discord and controversy everywhere she goes. The trail of innocent victims of her abuse of power is long.
Consider her current prosecution of a high-profile murder case in Canton, N.Y. She ran for D.A. on a pledge to solve the brutal murder of Garrett Phillips, a 12-year-old sixth grader who was strangled in his mother's apartment in Potsdam, N.Y. five years ago. Rain quickly convened a grand jury that indicted Oral Hillary, a black Jamaican immigrant in a virtually all-white community. Rain accused Hillary, a soccer star and head soccer coach at Clarkson University in Potsdam, N.Y., of killing the boy because the boy's mother, Tandy Cyrus, broke up with him. The indictment was thrown out by a judge because of Rain's unrelenting misconduct before the grand jury. Rain then re-indicted Hillary, baited the judge to disqualify himself from the trial, and brought in a new judge to try the case. The evidence against Hillary is paper thin. There are no witnesses, no scientific or physical evidence, and no motive. The proof rests on allegedly inconsistent statements by Hillary.
But last week, after the first day of the trial, the judge abruptly suspended proceedings after the defense learned for the first time that a witness had identified another man, John Jones, of entering the apartment with Garrett at the time the boy was killed. Jones is a deputy sheriff, a former boyfriend of Garrett's mother, and was one of the investigators of the boy's killing. Jones was originally a suspect in the case. He had a tumultuous relationship with Ms. Cyrus, and she made a formal complaint against him to the county attorney, saying that his actions "cause[d] me to fear for the safety of myself and my sons." She said that Jones was acting "threatening and jealous," and she "feared his actions would continue or even escalate." But Jones gave an alibi that Rain accepted. Rain knew about the witness's identification of Jones for 18 months but never told the defense about it. She justified her suppression by claiming that the witness's statement "did not go with the [prosecution's] theory of the case" and therefore she had no duty to disclose it to the defense.
Some news reports characterized Rain's hiding this witness as a "lapse," a "fumble," and a "legal misstep." That is nonsense. Her failure to disclose this evidence to the defense is one of the most flagrant constitutional and ethical violations a prosecutor can commit, a pervasive type of prosecutorial misconduct characterized by a respected federal judge as having become an epidemic. Every prosecutor knows the bedrock principle of criminal procedure that a prosecutor has a constitutional and ethical obligation under Brady v. Maryland to disclose exculpatory evidence to the defense. Rain's failure to disclose the witness's information, and then her cynical excuse that she didn't have to disclose it because she didn't believe him, is astonishing. No prosecutor is allowed to decide unilaterally whether evidence that is favorable to the defense is believable or not. But after a hearing the trial judge (the case is being tried by a judge without a jury) decided not to declare a mistrial.
Rain's nondisclosure, although egregious, might appear as run-of-the mill misconduct by a prosecutor desperate to win the biggest trial of her career. But as shown below, Rain's misconduct was not an isolated event. Anybody familiar with Rain's professional record could easily have predicted her misconduct in the Hillary trial and her brazen effort to excuse it. The fact that she remains in office, and the failure of disciplinary authorities to remove her or formally sanction her is astonishing. Rain is the most dangerous prosecutor in New York State. Consider the following:
- Rain's misconduct provoked several judges to remove themselves form cases in which she appeared. About ten years ago, when she was an Assistant District Attorney in Oswego, Walter Hafner, the county court judge, made over twenty ethics complaints against Rain with the region's Attorney Grievance Committee. Although such complaints are secret, one complaint involved her leak of confidential information to a newspaper reporter in a big murder case, and another complaint involved her participation in Republican Committee activities. Her repeated acts of misconduct apparently were done to bait the judge into removing himself from all of her cases, which he did. In fact, in an effort to keep him away from several cases, Rain would appear in court in cases in which she was not actually involved.
- After she became District Attorney, Rain was cited for numerous acts of misconduct by the primary St. Lawrence county court judge, Jerome Richards. He accused her in a complaint to the Committee on Professional; Standards of allowing a young lawyer on her staff who was not licensed to practice law to go into court and prosecute a felony assault case. She acknowledged she did it because she was short-staffed. Richards also filed a complaint accusing her of failing to file required documents in numerous criminal appeals. The appellate court dismissed the appeals and Rain was cited for criminal contempt for her derelictions. She again blamed her conduct on short-staffing. The appellate court dismissed the charges.
- Rain's misconduct in a rape trial last year caused the appellate division to reverse the conviction of a man accused of raping a 15-year-old girl. The appeals court unanimously found that Rain's repeated acts of misconduct in her closing argument to the jury denied the defendant Patrick R. Wright a fair trial. Rain, according to the appeals court, made numerous inflammatory remarks, argued that the defendant's failure to deny the allegations proved he was guilty, assured the jury that the defendant lied repeatedly, and that his arrest proved he committed the rape. She fabricated a statement she claimed the defendant made to the victim - "How do you feel now that you've been taken by a real man" - as a word-play to incite the jury to say to the defendant: "How does it feel to have a guilty verdict from a real jury." The appeals court found that despite strong efforts by Judge Richards, who admonished Rain repeatedly to desist from her misconduct and instructed the jury to disregard her comments, the severe prejudice from her conduct could not be cured.
- As noted above, Judge Richards dismissed the first indictment against Hillary, finding that Rain's conduct before the Grand Jury tainted the proceedings. He described a litany of violations. Rain asked prejudicial questions without a proper foundation to inflame the jury; asked Hillary's 17-year-old daughter, in violation of the attorney-client privilege, to disclose what her lawyer told her; expressed her personal opinion about the evidence and Hillary's guilt; bullied witnesses with improper questions, sometime asking the same question thirteen times; asserted to witnesses that they could not possibly disbelieve the prosecution's "proof" that the defendant was guilty.
- After Judge Richards dismissed several cases for Rain's failure to timely perfect several appeals, Rains attacked Judge Richards in a press release for dismissing a sexual assault indictment, saying that the judge's decision "made no sense" and that the judge "failed to follow New York law." Rain said that her office would "relentlessly fight to protect the rights of crime victims by appealing [Judge Richards's] decision." Rain's public attack on a judge is a serious violation of professional ethics. However, despite her criticism of Judge Richards, Rain did not follow through on her attack; she did not file the required documents to appeal Judge Richards's decision. And despite her claim that his ruling was improper, she did not re-present the case to a new grand jury.
- The FBI two years ago reportedly launched an investigation of Rain based on allegations that she had covertly contacted St. Lawrence County jail inmates who were represented by lawyers to get them to elicit confessions from fellow inmates who were represented by counsel and were not aware that the informant was working for the prosecution. Every prosecutor knows that secretly contacting a represented party is a serious ethical violation as well as a violation of the individual's Sixth Amendment right to counsel. The FBI investigation is still ongoing.
-Rain has been accused of leaking secret grand jury testimony, a felony in New York. Rain, in emails to attorneys in the public defender's office and other defense attorneys, described the grand jury testimony of witnesses. Rain claimed that it is "standard practice" to share such grand jury information with defense attorneys when negotiating pleas. To my knowledge, Rain's understanding is not shared by any other prosecutor in New York State or anywhere else in the country.
-Rain was elected in 2013 after a vicious campaign in which she accused the incumbent District Attorney Nicole Duve of incompetence, mismanagement, and the failure to investigate the Garrett Phillips killing even though Rain knew nothing about the investigation and had never seen the file in the case. In what appears to be a clear violation of ethical rules, Rain pledged to solve the case and bring the killer to justice. Indeed, Rain in many of her campaign events had Garrett's mother at her side.
-Rain was the county's public defender before she ran for District Attorney, but she was fired by the county legislature because of mismanagement and allegations of sexual harassment and abuse of staff. One of Rain's chief critics was Karen St. Hilaire, the county administrator. Shortly after she was elected, Rain convened a grand jury to investigate "misconduct, nonfeasance, and neglect by county officials " based on their alleged failure to re-apply for victims' rights grants and for using that money to purchase equipment for the legislative boardroom. Rain issued hundreds of grand jury subpoenas to county officials for ten years of emails, financial records, bank statements, and other documents, most of which are public records anyway, and cost the county nearly $50,000 dollars to comply with. Witnesses have alleged that Rain used the grand jury not to investigate a crime but for the illegitimate purpose of intimidating her critics and retaliating against them for her being fired as public defender. After two and one-half years no charges have been filed and no grand jury action has been taken.
- A former assistant district attorney in Rain's office has accused Rain of sexual harassment, retaliation, and creating a hostile work environment. The former assistant claims that Rain "frequently used foul language," "made sexually explicit comments," and gave preferential treatment to male employees. The former assistant also accused Rain of misusing the grand jury to retaliate against St. Hilaire for terminating Rain's job as public defender. Fourteen assistants have resigned during Rain's three-year tenure.
- Last April the county's Board of Legislatures took the extraordinary step of passing a resolution of "no confidence" against Rain. The 10 to 3 vote received bipartisan support. The Board asked Governor Cuomo to open an inquiry into Rain's conduct, claiming that it was "detrimental to the criminal justice system and the public welfare." The lawmakers asserted they were "fed up" with Rain's misconduct and that "enough is enough." To date there has been no response form the governor's office.
-Coincidentally with the Board's no confidence vote, the state's District Attorneys Association wrote a letter to the Committee on Professional Standards, the agency responsible for investigating and disciplining lawyers, asking it to investigate Rain's conduct because a "crisis of confidence has overtaken St. Lawrence County's criminal justice system." Although not taking a position on whether Rain had done anything improper, the D.A.'s letter states that Rain's conduct "affects all of us."
The above are only some references to Rain's prosecutorial conduct and complaints against her. The fact that she has never been professionally disciplined shows the futility of New York's disciplinary system in punishing and deterring errant prosecutors. Indeed, that Rain in the current high-profile Hillary trial would commit such a clearly egregious violation by hiding exculpatory evidence suggests that she is willing to flaunt legal and ethical standards with impunity, confident that she will be able to escape accountability. It is not entirely clear whether her confidence in the dysfunctional New York disciplinary system is misplaced. Her intimidation of judges, misuse of the grand jury, retaliatory prosecution, serial violations of legal and ethical rules, mismanagement of her office, and harassment and abuse of her staff is unparalleled among New York District Attorneys.
In the end, Rain's abuse of power without any accountability makes a mockery of the system of justice and taints everybody in the system committed to serving law and justice responsibly and professionally.