A Most Dangerous Prosecutor: A Sequel

10/01/2016 03:01 pm ET

As I’ve previously written, Mary E. Rain, the District Attorney of St. Lawrence County in upstate New York, is as unethical, incompetent, and outright dishonest a prosecutor as any prosecutor in America. And last week, to culminate her bottomless pit of malfeasance, she lost the highest-profile murder trial on which she staked her career.

Five years ago, Garrett Phillips, a 12-year-old sixth grader, was brutally strangled in his mother’s apartment in Potsdam, N.Y. five years ago. The case was a difficult one, and the investigation failed to yield results. In 2013, Rain ran for district attorney, accusing the incumbent of incompetence, even though she knew nothing about the investigation. In what appears to be a clear violation of ethics rules, Rain pledged to solve the case and bring the killer to justice. On a wave of anger, she won.

Last year, despite the lack of witnesses, physical evidence, or real motive, she quickly focused on Oral Hillary, a black Jamaican immigrant in a virtually all-white county. Mr. Hillary, a former soccer star and head soccer coach at Clarkson University in Potsdam, N.Y., was said to have killed the boy because the boy’s mother, Tandy Cyrus, broke up with him.

Rain secured an indictment from the grand jury, but the indictment was thrown out by a judge because of her unrelenting misconduct: Rain asked prejudicial questions 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 on the evidence and Hillary’s guilt; and bullied witnesses with improper questions, sometime asking the same question thirteen times.

Rain then got another indictment, baited the judge to disqualify himself from the trial, and brought in a new judge to try the case. But 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, entering the apartment with Phillips at the time the boy was killed. Jones is a deputy sheriff and had been one of the original investigators of the murder. Yet he was also a suspect in the case: he is also a former boyfriend of Cyrus, who made a formal complaint against him to the county attorney, saying that his actions “causes 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.”

Last week, Rain lost that trial outright.

Rain, of course, was within her discretion to prosecute Hillary, rather than Jones. But unbelievably, she concealed the witness’s ID of Jones for over a year and half, not telling the defense – as required by law. 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.

That is completely false. Rain’s failure to disclose this evidence to a flagrant constitutional and ethical violation, a pervasive form of prosecutorial misconduct recently characterized by a respected federal judge as having become an “epidemic.” Nor is it accurate to characterize Rain’s misconduct as simply a “lapse,” a “fumble,” or a “legal misstep,” as some media outlets have done. First, every prosecutor knows that a prosecutor must, under Brady v. Maryland, disclose exculpatory evidence to the defense.

Rain’s conduct after the acquittal was simply outrageous. She held a press conference in the Grand Jury hearing room of the St. Lawrence courthouse to inflame her supporters. She had her staff investigator stand outside the door of the Grand Jury room and prohibit members from a local media from attending the news conference. Then during the press conference she proceeded to defame Mr. Hillary, saying she was 100% certain of his guilt despite the acquittal and that there would be no further investigation into the death of the 12-year- old boy.

But Rain’s sordid conduct in the Hillary case isn’t Rain’s first instance of misconduct. Not by a long shot. Consider some of these past examples:

- About ten years ago, when Rain 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, we do know that one complaint involved her leak of confidential information to a newspaper reporter in a big murder case, and another involved her participation in Republican political activities.

- 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.

- After Rain indicted Hillary, Judge Richards threw out the indictment because of Rain’s flagrant misconduct, including asking questions without a proper basis, asking inflammatory questions that assumed Hillary’s guilt, bullied and threatened witnesses, and violated a witness’s attorney-client privilege. But Rain’s misuse of the Grand Jury in the Hilalry case process appears to be normal conduct for her. Her abuse of the grand jury subpoena process caused another case a judge throw out evidence obtained by the irregular use of the subpoena. Her leak of secret grand jury testimony has also been documented.

- 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. 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 argued that his arrest proved he committed the rape. The appeals court found that despite strong efforts from the judge, 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.

- The FBI two years ago reportedly launched an investigation of Rain based on allegations that she had improperly contacted St. Lawrence County jail inmates to try to get them to elicit confessions from fellow inmates. Those inmates, however, were represented by counsel and were not aware that the informant was working for the government. Such contact is a serious ethics violation as well as a violation of the individual’s Sixth Amendment right to counsel. The FBI investigation is still ongoing.

- 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.

More recently, 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. Fourteen assistants have resigned during Rain’s three-year tenure.

- One of Rain’s chief critics when she was public defender 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), costing the county nearly $50,000 to comply with. Yet after two and a half years, no charges have been filed and no grand jury action has been taken. Witnesses have since alleged that Rain used the process to retaliate against St. Hilaire.

Why, with this litany of misconduct, is Rain still in office? Because prosecutors are elected by voters who usually lack information about the candidates, and who reward candidates for being “tough on crime” at the expense of everything else. And because of the futility of New York’s disciplinary system in punishing and deterring errant prosecutors Indeed, Rain’s story shows how ineffectual New York’s existing processes are.

For example, 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.

And 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.” That request has not been acted upon.

Mary Rain’s 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. Rain’s abuse of power without any accountability for it makes a mockery of the system of justice and taints everybody in the system committed to serving law and justice responsibly and professionally.

Now that Hillary has been found not guilty, will Rain’s clearly egregious violation in a high-profile murder case lead to any sanctions for her serial misconduct? It appears that her willingness to flaunt legal and ethical rules with impunity indicates a confidence that she will be able to escape accountability. If that’s true, it that sends a terrible message to those who care about the fairness and integrity of the criminal system of justice and the honesty and competence of prosecutors who wield such tremendous power.

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