The People, Appellant,v.Jermaine Dunbar, Respondent.BriefN.Y.September 18, 2014Court of appeaf5 of tbe 'late of ,met Pork THE PEOPLE OF PIE STATE OF NEW YORK Appellant, -against- JERMAINE DUNBAR Respondent. (Docket No. APL-2013-00119) THE PEOPLE OF THE STATE OF NEW YORK Appellant, -against- EUGENE POLHILL Respondent. (Docket No. APL-2013-00121) *** PEOPLE OF THE STATE OF NEW YORK Appellant, -agains COLLIN LLOYD-DOUGLAS Respondent. (Docket No. APL-2013-00120) BRIEF OF AMICUS CURIAE NEW YORK UNIVERSITY SCHOOL OF LAW Barbara S. Gillers. Esq. Adjunct Professor of Law New York University School of Law 245 Sullivan Street, Room 511 New York, New York 10012-1301 Tel: 212-992-7364 Email: barbara.gillers@nyu.edu Eugene M. Gelernter, Esq. Amy N. Vegari, Esq. Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 Tel: 212-336-2000 E-mail: emgelernter@pbwt.com Attorneys for Amicus Curiae Dated: February 7, 2014 New York, New York DISCLOSURE STATEMENT PURSUANT TO RULE 500.1(1) The Legal Ethics Bureau is an unincorporated subentity within Washington Square Legal Services, Inc. (WSLS), which is a not-for-profit educational corporation organized under New York law to facilitate the teaching of law by means of actual representation of clients and through amicus briefs, subject to the laws of the State of New York and a Student Practice Order of the New York Supreme Court, Appellate Division, First Department. WSLS has no subsidiaries. WSLS was created to further the educational mission of NYU School of Law, is supported by NYU School of Law, and is directed by the Dean and specific faculty of NYU School of Law. NYU School of Law is a not-for-profit educational organization that is part of New York University, which is organized under the laws of the State of New York. TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 SUMMARY OF ARGUMENT 2 ARGUMENT 4 POINT ONE PROSECUTORS RISK VIOLATING THE RULES OF PROFESSIONAL CONDUCT WHEN INTERROGATING INDIGENT INDIVIDUALS IMMEDIATELY BEFORE ARRAIGNMENT AND THE APPOINTMENT OF COUNSEL 4 A. Prosecutors are bound by the rules of professional conduct. 4 B. NYRPC 4.3, 4.1 and 8.4(c) protect unrepresented persons from misrepresentation, deceit, and overreaching by prosecutors during custodial interrogations as elsewhere. 7 C. Under NYRPC 5.3(b) and 8.4(a) and People v. Hobson, prosecutors are responsible for the conduct of the detectives assisting them and acting on their behalf. 11 D. Dunbar, Polhill and Lloyd-Douglas demonstrate the types of violations that are likely to occur during custodial pre- arraignment interrogations 13 Other courts have expressed concerns about the Queens pre- arraignment program and similar- pre-arraignment interrogation programs. 16 F. In some circumstances, a pre-arraignment interview may violate rules protecting the administration of justice and prohibiting contacts with represented parties 20 POINT TWO SUPPRESSION IS THE APPROPRIATE REMEDY WHERE PREJUDICIAL EVIDENCE HAS BEEN OBTAINED BY THE TYPES OF ETHICS VIOLATIONS DESCRIBED ABOVE 23 TABLE OF AUTHORITIES CASES In re Hallmark, 831 A.2d 366 (D.C. 2003) In re Hopkins, 677 A.2d 55 (D.C.1996) In re Smith, 848 P.2d 612 (Or. 1993) Matter of Brown v. Blumenfeld, 103 A.D.3d 45 (N.Y. App. Div. 2d Dep't 2012) Matter of Curry v. Hosley, 86 IV.Y.2d 470 Miranda v. Arizona, 384 U.S. 436 (1966) Niesig v. Team I, 76 N.Y.2d 363 (1990) 26, Page(s) 21 21 21 27, 28, 29 4, 7 6 8 People v. Dunbar, 103 A.D.3d 198 (2013) People v. Dunbar, 104 A.D.3d 198 (N.Y. App. Div. 2d Dep't 2013) People v. Gillespie, No 769/10 People v. Goldfinget , 149 Misc.2d 765 (N.Y. Sup. Ct. 1991) (Andrias, J.) People v. Hobson, 39 N.Y.2d 479 (1976) 14, 15, 18 25 13 6 4 ii People v. Jones, 2 N.Y.3d 235 (2004) People v. Leyra, 1 N.Y.2d 199 (1956) People v. Moses, 63 N.Y.3d 299 (1984) 30 10 10 People v. Perez, 2012 WL 1322887 (N.Y.Sup.) at 14-15 17, 19 People v. Perez, 27 Misc.3d 272 14 People v. Perez, 37 Misc.3d 272 (2012) 16, 27 People v. Skinner, 52 N.Y.2d 24 (1980) 6, 28 People v. Wise, 46 N.Y.2d 321 (1978) 10 Siebert v. Intuit, 8 N.Y.3d 506 (2007) 8 United States v. Foley, 735 F.2d 45 (1984) 17 United States v. Hammad, 858 F.2d 834 (2d Cir. 1988) 29 United States v. Leon, 468 U.S. 897 (1984) 30 STATUTES CPL § 60.45 26, 29 CPL § 60.45(2)(b)(ii) 28 CPL § 60.45(b)(i) 25 iii Judiciary Law § 90 28 New York Criminal Procedure Law 60.45 24, 28 OTHER AUTHORITIES ABA Formal Opinion 09-454 11 ABA Formal Opinion 09-454 (July 8, 2009) at 8 11 Douglas Richmond, Deceptive Lawyering 22 Interview, The New Yorker, December 9, 2013 10 New York . . . routinely has an A USA interview uncounseled defendants just before they are taken before a magistrate where . . . they will be informed of the charges against them, advised of their constitutional rights, and have counsel assigned to them if needed 18 NY City Bar Formal Opinion 2009-2, Ethical Duties Concerning Self- Represented Persons, http://vvww.nycbar.org/ethics/ethics-opinions- 8 loca1/2009-opinions/788-ethical-duties-concerning:self-represented- persons Roy D. Simon, Simon's New York Rules of Professional Conduct Annotated (West, 15th ed. 2013) at 1065 9 Rule 4.1 26 Rules 4.1, 4.3 26 Rules 4.1, 4.3, and 8.4(c) 26 Rules 4.1 and 8.4(c) 7, 24 Rules 4.1, 8.4(c) and 4.3 7 Rule 4.2 23 Rule 4.3 7, 9, 24, 26 Rules 4.3, 8.4(c) and 4.1 8 Rule 4.3(a) 8 iv Rule 5.1 11 Rule 5.3(b) 11 Rule 7-104(a)(1) 8 Rule 8.4(c) 26, 27 Rule 8.4(d) 20, 21 Rule 60.45 24 Rule 8.4(c) of the Rules of Professional Conduct 16 Stephen Gillers, Regulation of Lawyer: Problems of Law and Ethics (9th ed. 2012) at 100 10 STATEMENT OF INTEREST The Legal Ethics Bureau at New York University School of Law respectfully submits this brief as amicus curiae. The Bureau is a student clinic, taught by Adjunct Professor Barbara S. Gillers, a member of the New York bar with long experience in advising lawyers and law firms on questions of legal ethics, teaching legal ethics in law schools in New York, and as a member of, or liaison to, ethics committees of the New York State, New York City, and American Bar Associations. The Bureau's interest is in fostering the adoption of the highest professional standards for lawyers while also offering law students an opportunity for advanced study of legal ethics, particularly through practical training. Students may work on amicus briefs, advise lawyers in non-profit organizations on legal ethics issues, and assist state and national bar associations in crafting ethics opinions on current issues of concern to the profession. In the cases for which this brief is submitted, the Bureau addresses issues that are unlikely to be addressed, or addressed in the same way or as fully, in the arguments of the parties. The Bureau's brief focuses exclusively on the professional responsibility issues that arise when prosecutors interrogate indigent unrepresented persons in a custodial setting immediately before arraignment and appointment of counsel.' The Legal Ethics Bureau is part of the NYU School of Law Clinical Law Program which trains 1 6627701v.1 SUMMARY OF ARGUMENT Like all New York lawyers, prosecutors are bound by the New York Rules of Professional Conduct. These obligations are separate from, and independent of, any obligations imposed by the New York State and U.S. Constitutions. When interrogating unrepresented individuals in custody immediately before arraignment and the appointment of counsel, as occurred in the cases before this Court, prosecutors confront a heightened risk of violating the professional conduct rules addressed here. These rules, inter alia, prohibit overreaching and engaging in deceit and misrepresentation, make a prosecutor responsible for conduct that would be improper by a lawyer if performed by a non-lawyer — like a detective or other law enforcement officer — who assist the prosecutor. The rules also prohibit conduct that is prejudicial to the administration of justice. And, finally, if the prosecutor intentionally delays or attempts to circumvent the imminent appointment of counsel in order to gain an advantage that the prosecutor would lose when the accused has counsel, the prosecutor violates the rule against contact with represented parties. law students in the practice of law. As is true with all briefs, publications and reports from clinics and centers at NYU School of Law, this attorney work product does not purport to present the school's institutional views, if any. 6627701v.1 2 The defendants in the three cases now before this Court were interrogated during a pre-arraignment interview program set up by the Queens District Attorney's office. Videos of these interrogations, which are part of the record on appeal, offer specific examples of how prosecutors may violate the rules of professional conduct when conducting custodial interrogations of unrepresented indigent individuals immediately before arraignment and the appointment of counsel,-whether or not the particular scripts involved in these cases are used. This Court should join other courts by announcing that a prosecutor's legitimate interest in securing information from a defendant can, and should, be accomplished without violating the rules of professional responsibility. Lower courts in other cases involving interrogations conducted as part of the Queens District Attorney's pre-arraignment interview program have expressed concerns. In the 1980s, the Second Circuit Court of Appeals expressed concern about a similar program conducted by the U.S. Attorney's Office for the Southern District of New York. The Bureau, as amicus curiae, asks this Court to: (1) make clear that the Rules of Professional Conduct apply when prosecutors conduct custodial interrogations of unrepresented individuals immediately before arraignment and the appointment of counsel; (2) specify the obligations imposed on prosecutors by the Rules discussed here, in the context of custodial interrogations; and (3) declare 6627701v. 3 that courts have the power under Criminal Procedure Law ("CPL") § 65.45(b)(i), in appropriate cases, to suppress prejudicial involuntary statements procured through interrogations that violate the Rules of Professional Conduct.' ARGUMENT POINT ONE PROSECUTORS RISK VIOLATING THE RULES OF PROFESSIONAL CONDUCT WHEN INTERROGATING INDIGENT INDIVIDUALS IMMEDIATELY BEFORE ARRAIGNMENT AND THE APPOINTMENT OF COUNSEL A. Prosecutors are bound by the rules of professional conduct. Prosecutors, like all New York lawyers, must conform to the New York Rules of Professional Conduct ("NYRPC"). In re Curry v. Hosley, 86 N.Y.2d 470, 472-74 (a district attorney is "an attorney-at-law and an officer of the court" and is "bound by rules and principles of professional ethics"). People v. Hobson, 39 N.Y.2d 479, 484-85 (1976) (holding the prosecutor responsible for an investigator's conduct, saying "an attempt to secure a waiver of the right of counsel in a criminal proceeding in the absence of a lawyer, already retained or 2 Amicus argues for the remedy of suppression on these direct appeals. But it believes that the Court's decision should have only prospective application for purposes of lawyer discipline. See In re Anonymous, 32 A.D.2d 37, 40 (1st Dep't 1969) ("[T]he petition is in a sense a case of first impression. Under the circumstances, we will make the disposition that we have employed in comparable situations and dismiss the proceedings with a caveat to the Bar that instances of like will render the offender liable to appropriate disciplinary action.") (citations omitted). 6627701v.1 4 assigned, would constitute a breach of professional ethics as it would be in the least-consequential civil matter . . Since the Code of Professional Responsibility is applicable, it would be grossly incongruous for the courts to blink its violation in a criminal matter.") (citations omitted). Prosecutors, like all NY lawyers, are also responsible for the conduct of non-lawyers who assist them and act on their behalf, including detectives and other law enforcement personnel. NYRPC 5.3 imposes these supervisory responsibilities.3 NYRPC 8.4(a) prohibits violating the rules of professional conduct through the acts of another.4 And, as noted, this Court has ruled that a prosecutor is responsible for the conduct of law enforcement personnel acting on 3 NYRPC 5.3(b) provides in relevant part: "A lawyer shall be responsible for the conduct of a non-lawyer . . . associated with the lawyer that would be a violation of these Rules if engaged in by a lawyer, if (1) the lawyer . . . directs the specific conduct or, with knowledge of the specific conduct, ratifies it" or if the lawyer has supervisory authority over the non-lawyer and "knows of such conduct at a time when it could be prevented or its consequences avoided or mitigated but fails to take reasonable remedial action . . ." The predecessor rule, NYDR 1-104(d)(1) and (2), provided: "A lawyer shall be responsible for . . . conduct of a non-lawyer . . . associated with the lawyer that would be a violation of the Disciplinary Rules if engaged in by a lawyer if . [t]he lawyer . . . with knowledge of the specific conduct, ratifies it; or . . . [t]he lawyer . . . has supervisory authority over the . . . non-lawyer, and knows of such conduct . .. when its consequences could be or could have been avoided or mitigated." Throughout this brief, the Bureau cites to the New York Rules of Professional Conduct, which became effective April 1, 2009. Where relevant we identify predecessor rules, which are important for two reasons: First, these rules apply to any interrogation that took place before April 1, 2009, e.g., that of Lloyd- Douglas, which occurred on June 13, 2008. (The interrogations of Polhill and Dunbar occurred after April 1, 2009.) Second, and more importantly, the predecessor rules underscore how the interrogation practices we discuss transgress core values of long-standing significance to the legal profession and the courts in New York. 4 NYRPC 8.4(a) provides: "a lawyer or law firm shall not violate or attempt to violate the Rules of Professional Conduct . . . through the acts of another." Its predecessor, NYDR 1- 102(a)(2), provided that a lawyer shall not "[c]ircumvent a Disciplinary Rule through actions of another." 6627701 v.1 5 his behalf. See Hobson, 39 N.Y.2d at 485 (addressing an investigator's improper attempt to secure a waiver of the right to counsel, this Court said, "[I]t would not be rational, logical, moral or realistic to make any distinction between a lawyer acting for the State who violates the ethic directly and one who indirectly uses the admissions improperly obtained by a police officer, who is the badged and uniformed representative of the State. To do so would be, in the most offensive way, to permit that to be done indirectly what is not permitted directly."). These obligations are separate from, and independent of, constitutional limits imposed on prosecutors by landmark cases such as Miranda v. Arizona, 384 U.S. 436 (1966), and the state and federal constitutions. For example, in People v. Skinner, 52 N.Y.2d 24, 29-30 (1980), this Court addressed whether an interrogation in the absence of counsel violated the state constitution, remarking, "This court's vigilance in protecting the right to counsel finds additional support even in the ethical responsibility of attorneys in civil matters not to communicate on the subject of the representation with an individual known to be represented by an attorney on the matter [citing the New York and American Bar Association ("ABA") ethics rules]." The Court continued, "We would be hard pressed logically to proscribe such conduct in the civil context yet blithely overlook it in the criminal sphere." Id. at 30. See also Hobson, 39 N.Y.2d at 484- 85 (securing a waiver in the absence of counsel violates the state constitution and 6627701v.1 6 the ethics rules); People v. Goldfinger, 149 Misc. 2d 765, 771-772 (Sup. Ct. New York County 1991) (Andrias, J.) (noting that the state constitution and the rules of professional conduct impose separate and independent obligations on prosecutors by saying "While my conclusion [in this case] rests on the New York State right to counsel, there is also ample support for the result reached herein under the proscriptions of [the] Code of Professional Responsibility . . . ."). B. NYRPC 4.3, 4.1 and 8.4(c) protect unrepresented persons from misrepresentation, deceit, and overreaching by prosecutors during custodial interrogations as elsewhere. Rules 4.1, 8.4(c) and 4.3 protect unrepresented persons from overreaching by adverse counsel. Rule 4.3 limits how a lawyer may behave when communicating with unrepresented persons.' Rules 4.1 and 8.4(c) prohibit deceit and misrepresentation.6 5 NYRPC 4.3 reads: "In communicating on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person other than the advice to secure counsel if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client." The predecessor rule, NYDR 7-104(a)(1), reads a little differently but the obligations of a lawyer not to overreach, not to engage in misrepresentation, and to clarify the lawyer's role in the matter when an unrepresented person shows confusion did not change. The District Attorney's client, of course, is the state of New York. Matter of Curry v. Hosley, 86 N.Y.2d 470, 473 (1995). 6 NYRPC 4.1, formerly DR 7-102(a), provides that in representing a client "[a] lawyer shall not knowingly make a false statement of fact or law." NYRPC 8.4(c), formerly DR 1-102(a) (4), provides: "A lawyer . . . shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation." 6627701v.1 7 The rules do not prohibit prosecutors from participating in custodial interrogations altogether, but they do impose limitations. As this Court has made clear, even where communications with unrepresented persons are permitted, lawyers must conform to all applicable rules of professional conduct. Muriel Siebert & Co. v. Intuit Inc., 8 N.Y.3d 506, 511-12 (2007) (holding that Disciplinary Rule 7-104(a)(1), predecessor to NYRPC 4.2, did not forbid an interview of a former employee of an adverse party, but "[c]ounsel must still conform to all applicable ethical standards when conducting such interviews." (citations omitted). See also Niesig v. Team I, 76 N.Y.2d 363, 376 (1990) ("[I]t is of course assumed that attorneys [conducting interviews with unrepresented persons] would make their identity and interest known to interviewees and comport themselves ethically."). Rules 4.3, 8.4(c) and 4.1 establish both affirmative obligations and proscriptions. The lawyer must "not state or imply that the lawyer is disinterested." Rule 4.3(a). When the person questioned by the lawyer evinces any misunderstanding about the lawyer's role, the lawyer must clarify her interest sometimes repeatedly. See, e.g., NY City Bar Formal Opinion 2009-2, Ethical Duties Concerning Self-Represented Persons, http://www.nycbar.org/ethics/ethics- opinions-loca1/2009-opinions/788-ethical-duties-concerning-self-represented- persons (last visited 1/16/2014) (a lawyer "must [clarify her client's interest in the 6627701v.1 8 matter] whenever she knows or has reason to know that the self-represented person misapprehends the lawyer's role in the matter. This may require the lawyer to repeat the clarification more than once.") (emphasis in the original); Roy D. Simon, Simon 's New York Rules of Professional Conduct Annotated, 1065 (West, 2013) (Rule 4.3 "prohibits a lawyer from telling an unrepresented person (or giving the person the impression) that the lawyer is a neutral, objective disinterested actor."). Furthermore, a lawyer may not give advice to an unrepresented person other than to suggest that the person secure counsel "if the lawyer knows or reasonably should know that the interests of [the unrepresented] person are or have a reasonable possibility of being in conflict with the interests of the [lawyer's] client." Legal advice is prohibited because "[a]n unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer .represents a client." NYRPC 4.3 cmt.l. Unrepresented persons "may not realize the implications of giving information to a lawyer." Simon, supra at 1066. As this Court observed in Hobson, constitutional obligations and professional conduct rules "protect the individual, often ignorant and uneducated, and always in fear, when faced with the coercive police power of the State." 39 N.Y.2d at 485. See also Miranda, 384 U.S. at 467, 468 ("the process of in-custody 6627701v.1 9 interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely"). The risks to unrepresented persons are high. Improper questioning by a prosecutor may secure an ill-advised disclosure or an unwarranted concession. See generally, Douglas Starr, The Interview, The New Yorker, December 9, 2013, at 42-49 (discussing how common interrogation techniques often produce false confessions). Overreaching may obtain a damaging admission, a false exculpatory statement that could later be used to impeach the defendant, or simply a statement that is inconsistent with later testimony that a counseled defendant would not make. See, e.g., People v. Moses, 63 N.Y.2d 299 (1984) (false alibi may be used to show consciousness of guilt); People v. Leyra, 1 N.Y.2d 199, 208-10 (1956) (a false explanation or a false alibi may be used, as one element of proof, to show consciousness of guilt); People v. Wise, 46 N.Y.2d 321, 326-29 (1978) (even after a Miranda violation has been found a defendant's prior inconsistent statement obtained during the interrogation may be used by the prosecutor for impeachment purposes). See also Stephen Gillers, Regulation of Lawyer: Problems of Law and Ethics, 100 (9th ed. 2012) (discussing interests protected by the rule forbidding contact with represented persons in the absence of their lawyer or their lawyer's consent including "getting a damaging admission," "learning a fact or getting a 6627701 v.1 10 document [the lawyer] would not learn or get if counsel were present," "winning a concession" or "weakening the [individual's] resolve by casting doubt on the strength of his position"). C. Under NYRPC 5.3(b) and 8.4(a) and People v. Hobson, prosecutors are responsible for the conduct of the detectives assisting them and acting on their behalf. NYRPC 5.3(b) makes a prosecutor responsible for the conduct of a detective associated with her that would be a violation of the rules if engaged in by the prosecutor if the prosecutor directs the conduct, ratifies it or knows of the conduct at a time when its consequences could be avoided or mitigated but fails to take action.' Compare ABA Formal Opinion 09-454 (July 8, 2009) at 8 (discussing the obligations of prosecutors to supervise lawyers under Rule 5.1).8 NYRPC 8.4(a) says "a lawyer or law firm shall not violate or attempt to violate the Rules of Professional Conduct . . . through the acts of another."' Thus when a detective overreaches or engages in deceit or misrepresentation during an interrogation conducted with or on behalf of a prosecutor, the prosecutor is responsible for the detective's conduct and may have 7 The relevant text of NYRPC 5.3(b) is set forth in footnote 1 supra. 8 NYRPC 5.1 addresses the obligations of prosecutors to supervise lawyers whereas Rule 5.3(b) addresses the obligations of prosecutors to supervise non-lawyers. Even though ABA Formal Opinion 09-454 addresses NYRPC 5.1, it supports by inference the application of NYRPC 5.3(b) to prosecutors who have supervisory obligations over nonlawyers as well. 9 The text of NYRPC 8.4(a) is set forth in footnote 2 supra. 6627701 v.1 11 an obligation to stop it and correct its consequences. So, for example, when a detective continues an interrogation after it has become clear that the defendant does not understand the role of the prosecutor and the detective in the matter, the prosecutor must act as he or she would in situations governed by NYRPC 4.3 — that is, "the lawyer shall make reasonable efforts to correct the misunderstanding." If the defendant appears to think the prosecutor and the detective are on his side, this is a misunderstanding the prosecutor must correct by, for example, explaining to the defendant that the prosecutor represents the interests of the state, not the defendant's interest, and that momentarily — at arraignment — a lawyer who will protect the defendant's interests will be appointed. That the ethics rules impose these supervisory obligations on prosecutors is underscored by this Court's declaration in Hobson that "it would not be rational, logical, moral or realistic" not to hold prosecutors responsible for the conduct of detectives acting on their behalf. 39 N.Y.2d at 485. This is especially true in situations like those presented to the Court in Dunbar, Polhill, and Lloyd- Douglas, where the detectives act in the prosecutor's presence and at a time when the prosecutor can stop the conduct or mitigate its consequences. 6627701v.1 12 D. Dunbar, Polhill, and Lloyd-Douglas demonstrate the types of violations that are likely to occur during custodial pre-arraignment interrogations. Video recordings in these cases show prosecutors and detectives engaged in persistent and demanding questioning that involves overreaching and deceit. For example, adhering to the Queens District Attorney's script, the prosecutor says "this will be your only opportunity to speak with us before you go to court on these charges." People v. Dunbar, 104 A.D. 2d 198, 202 (2d Dep't 2013). This statement "creates the impression that the CBQ interview exists to assist the defendant, an impression that was false." People v. Gillespie, No. 769/10, N.Y.L.J. 1202568442772, at *10 (Sup. Ct. Queens County July 31, 2013) (citing People v. Perez, 37 Misc. 3d 272, 276 (Sup. Ct. Queens County 2012))." In addition, the questioning of these defendants even after the Miranda warnings suggests that the interview exists for the purpose of assisting the arrestee in his defense. For example, the prosecutor and the detective continuously prodded the defendants — throughout the interviews for information, often with a promise that they would investigate. This too was misleading, in contravention of NYRPC 10 It is also misleading. As the court found in Gillespie, "[T]he phrase 'This will be your only opportunity to speak with us before you go to court on these charges' is a misrepresentation to defendant that the CBQ interview is the defendant's last opportunity to speak and provide an alibi. It is unfair to expect a defendant to discern the difference between one's 'only opportunity to speak' before going to court and the last opportunity before arraignment, particularly when they do not have the benefit of counsel." Id. at *10-11. "CBQ" refers to the Central Booking Queens interview, which is part of the Queens District Attorney's pre-arraignment interview program. 6627701 v.1 13 4.1 and 8.4(c). As the Gillespie court found in reviewing the Queens D.A.'s pre- arraignment interview program, "the promise to investigate the defendant's statement coupled with the urgency implied, created a misrepresentation of the circumstances then facing the unrepresented defendant." Id. See also, People v. Perez, 37 Misc. 3d at 281-82 ("There was no evidence presented by the People as to any investigation by anyone in the District Attorney's Office — either prior to or since arraignment — based on what the defendant stated.") In addition to showing misrepresentations giving rise to NYRPC 4.1 and 8.4(c) violations, the videos also show violations of NYRPC 4.3. The interviews betray numerous instances of confusion on the part of the defendants as to the prosecutors' role, especially vis-à-vis the defendants' interests. As the Appellate Division noted in Dunbar, "Twice [Dunbar] interrupted the questioning to express his confusion or concern as to how the interview was helping him." 104 A.D.3d at 202-203. See also, e.g., Dunbar Video ("DV") at 12:09:30 ("How can you help me? ");" Id. at 9:27 to 9:37 ("Well, hold on, so, there's no way you could help me then . . . no way . . . I mean . . . 'cause I'm not tryin' . . . I don't want to go to jail"). At one point Dunbar showed confusion about who, exactly, was interrogating him. He "asked if he would be talking to 'the D.A.' after he was I I Citations in this section refer to DVDs of the interrogations of Dunbar, Polhill and Lloyd- Douglas that are part of the record before the Court. Citations refer to the running time-stamp, e.g., "12:40:15" refers to the hour (12), minute (40), and seconds (15) where the cited material appears. 6627701v.1 14 finished talking to [his interrogators, who were, in fact, a prosecutor and a detective]." 104 A.D.3d at 203. Pursuant to NYRPC 4.3, when such confusion is evident, the prosecutor has an obligation to make clear her role in the matter. In the cases of Dunbar, Polhill, and Lloyd-Douglas, the prosecutors failed to satisfy that obligation. There are other indices of the defendants' confusion. For example, the videos show the prosecutor and detective securing damaging admissions, without clarifying — as required by NYRPC 4.3 — that they represented interests adverse to the defendant despite comments showing that the defendant misunderstood the prosecutor's role. So, for example, Dunbar admitted that "he could not truthfully say that it was not him [at the robbery]." 104 A.D.3d at 203, 213. Then he "stated his side of the story was that he felt that he was forced by Pete and Ralphy (the driver who picked him up after the incident) to rob the store." Id. Like Dunbar, Polhill also misunderstood the role of the individuals interviewing him, laboring under the false impression that the prosecutor would help him. Several times Polhill clearly articulated his confusion and asked the prosecutor and detective to explain the charges against him. He says, "What am I being charged with . . . ? This is mixing me up . . . . How could I attempt to rob him . . . ? I want to press charges against this guy . . . How could I attempt to rob 6627701v.1 15 him?" See Polhill Video ("PV") at 17:43 to 17:45; 17:49; 17:58. During aggressive questioning Poll-ill was told "We just want to get your side . . . ." PV 17:50. When Polhill said he had witnesses, he was told, "Tell me. We'll contact them. . . . If you have witnesses we can contact them." Id. at 17:53 et seq. Apparently thinking that the persistent questions and his answers would help him, Polhill said, "I want to get out of here . . . . I'm trying to get out of here. I'm on parole. It's most important to get out of here . . . ." Id. at 17:50; 17:56. Despite this unmistakable confusion, neither the prosecutor nor the detective told Polhill he was about to be brought for arraignment where counsel who would in fact protect his interests would be appointed for him. E. Other courts have expressed concerns about the queens pre-arraignment program and similar pre-arraignment interrogation programs. Courts reviewing the Queens District Attorney's Central Booking Program, or similar pre-arraignment interrogation programs, have voiced concern about actual or possible violations of the rules of professional conduct during such questioning. See, e.g., Gillespie, No. 769/10, at *2, *3, *5 (an interrogation conducted as part of the Queens District Attorney's Central Booking Program violated the rules of professional conduct); Perez, 37 Misc. 3d at 274 (the prosecutor's "failure to keep [a] promise to investigate [the defendant's story] violated rule 8.4(c) of the Rules of Professional Conduct", which prohibits deceit). 6627701v.1 16 In Gillespie, as noted, the Court voiced its concern that "the promise to investigate the defendant's statement coupled with the urgency implied, created a misrepresentation of the circumstances then facing the unrepresented defendant." The court noted further that, Isjimilar concerns have been set forth in the opinions of those Justices in Queens County who have previously written on this issue," citing Justice Kron and Judicial Hearing Officer Derlakos. Id. at 5. Ir Perez, Justice Blumenfeld also mentioned that colleagues had expressed concerns about the Queens District Attorney's pre-arraignment interview program. Id. at 282-83. Federal courts faced with similar programs have also voiced concerns. An example comes from United States v. Foley, 735 F.2d 45 (2d Cir. 1984). In Foley, two longshoremen appealed their convictions on a variety of federal crimes, including smuggling and conspiracy. The Second Circuit dismissed all of the defendants' claims on appeal and then said: "[W]e write this opinion solely to express this panel's disapproval of the pre-arraignment interview practice engaged in by the United State Attorney's office for the Southern District of New York." Id. at 46 (emphasis added). In Foley, after the defendants were summoned to appear at the U.S. Attorney's Office and in anticipation of formal charges and arraignment, an Assistant U.S. Attorney ("AUSA") "notified the magistrate, who in turn notified a legal aid attorney that he would be required to represent both defendants at their 6627701v.1 17 arraignment." Id. at 46. The prosecutor then interrogated the defendants as part of the office's pre-arraignment interview program ever though a legal aid attorney, who would soon be formally appointed to represent the accused, had "immediately . called the AUSA and requested that his clients not be interviewed." Id. But the Court did not rely on that call for its criticism of the routine office practice. The Court directed its criticism more broadly. "As a matter of practice and policy the United States Attorney's Office for the Southern District of New York . . . routinely has an AUSA interview uncounseled defendants just before they are taken before a magistrate where . . . they will be informed of the charges against them, advised of their constitutional rights, and have counsel assigned to them if needed." 735 F.2d 47-48 (citations omitted) (emphasis added). These are precisely the circumstances of the pre-arraignment interview program implemented in Dunbar, Polhill and Lloyd-Douglas. Indigent, uncounseled defendants were interrogated immediately before arraignment and the appointment of counsel, which were just steps and moments away. In the words of the Appellate Division, "The office of the Queens County District Attorney instituted a program . . . under which arrested individuals are systematically interviewed just prior to arraignment, or, in other words, immediately before those individuals' indelible right to counsel would attach." Dunbar, 103 A.D.3d at 200. 6627701v.1 18 The Second Circuit called the similar program in the U.S. Attorney's Office for the Southern District of New York "patently suspect." 735 F.2d at 48. The Court said, "We think that this practice of routinely conducting pre- arraignment interviews raises serious constitutional questions . . as well as ethical ones . ." Id. (citations omitted) (emphasis added). In language equally applicable to the pre-arraignment interviews conducted in Dunbar, Polhill and Lloyd-Douglas, the Second Circuit said: Most, if not all, of the practice's claimed advantages would appear to be equally available immediately after arraignment when a defendant would have the benefit of advice from his attorney and would be less vulnerable to psychological manipulation by the prosecutor. Moreover, we agree with the defendant that the interview does have two effects which, more than coincidentally we think aid the prosecutor and harm the defendant. By interviewing a defendant before he is assigned an attorney, the prosecutor may: (1) obtain admissions from the defendant which would not be forthcoming once an attorney enters the picture, and (2) commit the defendant to a 'story' or position that would restrict his options at trial, including his option to testify [on] his own behalf. Id. at 48.12 12 In Foley, a prosecutor admitted at oral argument that the government does not conduct a pre- arraignment interview when the defendant is known to be represented by private counsel. Responding, the Second Circuit said it found the pre-arraignment interview program even more troubling because it was "invoked only against a defendant who is poor and unrepresented." 735 F.2d 48 (citation omitted). Similarly, by virtue of Rule 4.2, the Queens District Attorney cannot conduct a prearraignment interview of individuals who can afford to, and do, retain counsel before arraignment. 6627701v.1 19 Finally, the Second Circuit noted, as is also true in Gillespie and Perez with respect to the Queens District Attorney's program, "the pre-arraignment interview procedure 'has received sharp criticism from a number of judges of [the Second Circuit.]," and added: "We now add our voice to the growing chorus of judges who 'remain troubled by the practice.'" Id. at 49 (quoting Perez, 733 F.2d 1026, 1036 (2d Cir. 1984). F. In some circumstances, a pre-arraignment interview may violate rules protecting the administration of justice and prohibiting contacts with represented parties. When prosecutors violate the rules on communications with unrepresented individuals, and the rules that require honesty and supervision of nonlawyer assistants, they may also violate the rules that prohibit conduct that is prejudicial to the administration of justice and contacts with represented parties. Rule 8.4(d) provides that a lawyer "shall not engage in conduct that is prejudicial to the administration of justice."' Dishonesty and overreaching toward indigent unrepresented persons in a custodial setting is prejudicial to the administration of justice for a variety of reasons. First, a prosecutor may either engage in improper conduct (deceit and overreaching) or fail to stop a detective assisting the prosecutor from engaging in such conduct. Second, such conduct bears directly on a defendant's fundamental rights in a specific case. Finally, such 13 Its predecessor, DR 1-102(A)(5), contained the same provision. 6627701 v.1 20 conduct taints the judicial process in more than a de minimis way by, inter alia, potentially compromising fundamental rights of a defendant and undermining public confidence in the fairness of the proceedings. See, e.g., In re Hallmark, 831 A.2d 366, 374 (D.C. Cir. 2003) ("To establish a violation of Rule 8.4(d), Bar Couhsel must prove by clear and convincing evidence that (1) the attorney either took improper action or failed to take action when she should have acted; (2) the conduct involved bears directly on a case in the judicial process with respect to an identifiable case or tribunal; and (3) the conduct taints the judicial process in more than a de minimis way, meaning that it must 'at least potentially impact upon the process to a serious and adverse degree.' In re Hopkins, 677 A.2d 55, 60-61 (D.C.1996) (citation omitted)."); In re Smith, 848 P.2d 612, 13-614 (Or. 1993) (applying the following three-part test for finding a violation of DR 1-102(A)(4), the rule proscribing conduct that is prejudicial to the administration of justice: (1) "the accused must have engaged in 'conduct,' that is, performed, or failed to perform, some act"; (2) "that conduct must have occurred in the context of the `administration of justice,' that is, during the course of some judicial proceeding or a matter directly related thereto. The conduct may relate to the 'procedural functioning of the proceeding' or to the 'substantive interest of a party in the proceeding'; and (3) "the conduct must have been 'prejudicial' in nature it must have caused, or had the potential to cause, harm or injury. The amount of harm 6627701v.1 21 caused, or having the potential to be caused, however, must be more than minimal. . . . [M]ore than minimal harm can result either from [r]epeated conduct causing some harm to the administration of justice' or from a 'single act causing substantial harm to the administration of justice.'") (citing and quoting In re Haws, 801 P.2d 818, 822-24 (Or. 1990)) (emphasis added). See also, Douglas Richmond, Deceptive Lawyering, 74 U. Cinn. L. Rev. 577, 583 (2005) (a lawyer's conduct is prejudicial to the administration of justice if it "bears directly on a case in the judicial process with respect to an identifiable case or tribunal" and "taints the judicial process in more than a de minimis way.") (quoting In re Hallmark, 831 A.2d at 374). NYRPC 4.2, the anti-contact rule, forbids prosecutors from interrogating represented individuals in the absence of their counsel or without their counsel's consent.' But even though the paradigm presented by the three cases now before the Court involves unrepresented persons, prosecutors in these circumstances may also offend the policies behind NYRPC 4.2 for several reasons. First, while it is true Dunbar, Polhill, and Lloyd-Douglas had not yet been assigned counsel at the time of their interrogations, the appointment of counsel was just steps and minutes away — at their arraignments. The prosecutor and detective 14 NYRPC 4.2(a) provides that, in representing a client, "a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law." 6627701v.1 22 controlled when that arraignment and appointment would occur. There is no evidence in any of the cases that the delay was required to complete their own pre- arraignment preparations. That leaves the strong inference that the only or primary purpose of the delay was to afford a "safe" interval during which the prosecutors could continue to build their cases with admissions from the defendant without the inconvenient impediment of opposing counsel. A prosecutor who has delayed an arraignment for this reason should not enjoy the benefit of that manipulative conduct. Rather, statements made during the period of delay should be deemed to have violated Rule 4.2, just as they would if the prosecutor had secured the same statements in the absence of the opposing lawyer following appointment. Such tactics fly in the face of the right to counsel that would attach momentarily. Furthermore, as the Second Circuit observed in Foley, this is a special risk for indigent defendants: "Our concern is enhanced by the fact, acknowledged at oral argument, that when a defendant is known to be represented by private counsel the government does not conduct a pre-arraignment interview." 735 F. 2d at 48. POINT TWO SUPPRESSION IS THE APPROPRIATE REMEDY WHERE PREJUDICIAL EVIDENCE HAS BEEN OBTAINED BY THE TYPES OF ETHICS VIOLATIONS DESCRIBED ABOVE The courts are authorized to order suppression of prejudicial statements obtained in violation of the Rules of Professional Conduct detailed in 6627701v.1 23 the preceding sections, and they should do so both to deter future ethical violations of this kind by prosecutors, and to safeguard the integrity of the criminal procedures under which Dunbar, Polhill, and Lloyd-Douglas were wrongfully convicted. The authority for suppression arises from application of New York Criminal Procedure Law 60.45 in light of the types of ethical violations we discuss. As we explain in detail in Section I.D, when prosecutors and detectives acting on their behalf engage in the type of conduct demonstrated by these cases, they violate Rules of Professional Conduct 4.1 and 8.4(c) by affirmatively misrepresenting the purpose of the pre-arraignment interview and their own role in the charging process. They also violate Rule 4.3 by implying that they were disinterested in the prosecution of the crimes for which the suspects were arrested and by failing "to correct the misunderstanding" under which the suspects are clearly laboring.' New York's Criminal Procedure Law permits the suppression of evidence obtained under such conditions. Specifically, § 60.45 of the Criminal Procedure Law provides that "[e]vidence of a written or oral confession, admission, or other statement made by a defendant with respect to his participation . . in the offense charged, may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made." CPL § 60.45(1) 15 Polhill in particular provides an example of this. See Section I.D. 6627701 v.1 24 (emphasis added). Such a statement is "involuntarily made" if obtained from the defendant "[b]y a public servant engaged in law enforcement activity or by a person . . . in cooperation with him . . . by means of any promise or statement of fact, which promise or statement of fact creates a substantial risk that the defendant might falsely incriminate himself." Id. at 60.45(2)(b)(i).16 Prosecutors and investigators like those in these cases engage in law enforcement activity when they conduct such interviews — or, at the very least, they work "in cooperation" with law-enforcement officials. Statements like those in the pre-Miranda script used by the Queens District Attorney in these cases present "statement[s] of fact" that create a substantial risk of false incrimination, and did in fact lead to self-incrimination in these cases. As the Appellate Division held in Dunbar, by advising suspects that "` [i]f there is something you need us to investigate about this case you have to tell us now so we can look into it,' the statements in the preamble suggest that the prosecution will not investigate [a 16 Before the Appellate Division in Dunbar, the People attempted to argue that the evidence at issue did not need to be suppressed on § 60.45(2)(b)(i) grounds, citing cases "in which inculpatory statements were admitted despite promises or false statements" made in violation of § 60.45(2)(b)(i). People v. Dunbar, 104 A.D.3d 198, 212-13 (2d Dep't 2013). The Appellate Division found this argument unavailing because the rule established by Miranda "is not one of the voluntariness of the defendant's inculpatory statement," but rather a rule that "requires suppression of even voluntary statements." Id. Our argument is not intended to supplant the Miranda argument properly adopted by the court below; rather, we offer the § 60.45(2) analysis to underscore the Court's authority to remedy violations of certain Rules of Professional Responsibility. We ask the Court to underscore that, in appropriate cases, the courts possess additional authority to suppress evidence for ethical violations that make a defendant's statement involuntary under CPL § 60.45(b)(i) — even in cases where Miranda does not require suppression. 6627701v.1 25 suspect's] version of events if the suspect decline[s] to speak with the prosecutor at that time." Dunbar, 104 A.D.3d at 208. Section I.D demonstrates how other such statements violate several of the Rules of Professional Conduct, particularly the rules prohibiting a lawyer from knowingly making a false statement of law or fact to a third person (NYRPC 4.1), limiting the nature of communications between an attorney and an unrepresented person (NYRPC 4.3), and barring conduct involving dishonesty or misrepresentation (NYRPC 8.4(c)). In the prosecutorial context, therefore, and especially in the context of the cases now before this Court, statements that violate these professional rules constitute violations of CPL § 60.45 where they lead to confessions, admissions, or other statements obtained in contravention of Rules 4.1, 4.3, and 8.4(c) — that is, they are statements "involuntarily made" within the meaning of § 60.45(2)(b)(i). As a result, although it is generally true that "there is no specific statutory authority under which a court is permitted to exclude evidence obtained in violation of attorney-ethics rules," Brown v. Blumenfeld, 103 A.D.3d 45, 56 (2d Dep't 2012), a prosecutor's violation of Rules 4.1, 4.3, or 8.4(c) does implicate such statutory authority under § 60.45. When a suspect makes a statement to a prosecutor prompted by representations that violate those Rules, that statement is "involuntarily made" for the purposes of § 60.45, and therefore properly excluded 662770Iv.1 26 under that rule. The fact that § 60.45 "does not address exclusion of statements obtained in violation of ethical rules," id. at 57, does not mean that the violation of ethical rules cannot lead to suppression of involuntary statements secured through violations of the Rules of Professional Conduct. Indeed, insofar as the statements procured through conduct that violates the Rules of Professional Conduct render the statements "involuntary," such statements should be suppressed under CPL § 60.45. The Brown court articulated but left open the question of whether suppression is appropriate where a prosecutor improperly obtains an incriminating statement from a defendant. Like the matters now on review before this Court, Brown addressed a case where a defendant convicted at trial had also undergone the pre-arraignment procedure of the Queens County District Attorney's Office. In considering the defendant's motion to suppress his incriminating statement, the Supreme Court Justice presiding over the case, Justice Blumenfeld, determined that suppression was not warranted because "there was no evidence that the People did, in fact, benefit from any improper conduct" by the prosecutor. Id. at 62. Thus the suppression motion was denied, but Justice Blumenfeld nevertheless precluded the admission of the defendant's videotaped statement as a sanction for the prosecutor's violation of Rule 8.4(c). People v. Perez, 37 Misc. 3d 272. The Appellate Division granted the writ of prohibition subsequently filed by the 6627701v.1 27 District Attorney, prohibiting Justice Blumenfeld from enforcing the preclusion order. In granting the petition for writ of prohibition, however, the Brown Court did not hold that evidence obtained as a result of a violation of ethics rules cannot be suppressed.' Rather, it took issue with the fact that Justice Blumenfeld had precluded the admission of the defendant's statement as a sanction imposed on a group of lawyers --- the Queens District Attorney's Office --- for what Justice Blumenfeld viewed as systematic ethical violations. The Brown Court found that "the sanction of preclusion was not imposed to remedy any prejudice to [the defendant] or any violation of [his] rights, but for the purpose of sanctioning perceived unethical conduct in general." Id. at 64 (emphasis added). Such a sanction, the Brown Court held, was not authorized by New York Jud. § 90, which grants the Appellate Division "power and control over attorneys and counselors-at- law." Judiciary Law § 90. However, the court pronounced, "Justice Blumenfeld had the power to suppress the statement if found to be involuntary under CPL 60.45." Brown, 103 A.D.3d at 64 n.5. 17 In considering the suppression remedy, Brown cited two other cases in which evidence was suppressed in conjunction with findings that the government had violated its ethical obligations. See People v. Skinner, 52 N.Y.2d 24 (1980); People v. Hobson, 39 N.Y.2d 479 (1976). However, the Brown Court found those cases inapposite, as suppression was granted there not because of the ethical violations but because of violations of the defendants' constitutional rights. Those cases would more properly implicate CPL § 60.45(2)(b)(ii), which deems a statement "involuntarily made" where it was obtained in violation of a defendant's constitutional rights. In the cases of Dunbar, Polhill, and Lloyd-Douglas, and as explained above, our argument that the prosecutors' ethical violation merits suppression is grounded in § 60.45(2)(b)(i). 6627701 v.1 28 As the cases of Dunbar, Polhill, and Lloyd-Douglas, demonstrate, a finding that NYRPC 4.1, 4.3, and 8.4(c) is violated can also amount to a finding that statements secured through conduct that violates the professional conduct rules are involuntary under CPL § 60.45. Such statements may therefore be suppressed under the Criminal Procedure Law. And as the Brown Court notes, the United States Court of Appeals for the Second Circuit held in Hammad that "suppression may be ordered to remedy violation of a disciplinary rule," because "'civilized conduct of criminal trials' demands federal courts be imbued with sufficient discretion to ensure fair proceedings." Brown, 103 A.D.3d at 62 (quoting United States v. Hammad, 858 F.2d 834, 840-41 (2d Cir. 1988)). The same reasoning should be applied here. In Hammad, the Second Circuit explained that the exclusionary rule exists to perform the following functions: "deter improper conduct by law enforcement officials . . . preserve judicial integrity by insulating the courts from tainted evidence . . . and maintain popular trust in the integrity of the judicial process." Hammad, 858 F.2d at 840. Moreover, the Hammad court underscored that suppression should be available in situations "outside the context of constitutional violations" where "governmental misconduct" may "fall[] short of a constitutional transgression" but nevertheless reflect official impropriety, menace judicial integrity, or threaten to destabilize popular trust." Id. These goals are no 6627701 v.1 29 less necessary to protect in the courts of New York State than they are at the federal level. Furthermore, suppression is not only warranted and authorized in cases where conduct that violates the Rules of Professional Conduct results in involuntary prejudicial statements by a defendant, but it is also the best remedy available for such ethical violations. While there other options for trial courts to respond to lawyer misconduct that occurs before them --- e.g., a reference to the appropriate Disciplinary or Grievance Committees --- suppression is the most effective means of addressing ethical violations that occur during interrogations of indigent defendants immediately before arraignment and the appointment of counsel that procure involuntary prejudicial statements. Suppression in such cases achieves the venerable goals that exclusion is always tailored to achieve: "deterring official misconduct" and "establishing procedures under which criminal defendants are acquitted or convicted on the basis of all the evidence which exposes the truth." United States v. Leon, 468 U.S. 897, 900-01 (1984) (quotation marks omitted); see also People v. Jones, 2 N.Y.3d 235, 241 (2004) ("The exclusionary rule was originally created to deter police unlawfulness by removing the incentive to disregard the law, but also serves to insure that the State itself, and not just its police officers, respect the constitutional rights of the accused." (quotation marks omitted)). Accordingly, in cases like the ones now before this 6627701v.1 30 Court, where violations of the Rules of Professional Conduct by prosecutors and detectives acting with them during custodial interrogations of indigent defendants immediately before arraignment and the appointment of counsel procure involuntary prejudicial statements, courts should exercise their authority under CPL § 60.45 to suppress those statements. CONCLUSION Accordingly, and for the reasons set forth, the Bureau, as amicus curiae, asks this Court to: (1) make clear that the Rules of Professional Conduct apply when prosecutors conduct custodial interrogations of unrepresented individuals immediately before arraignment and the appointment of counsel; (2) specify the obligations imposed on prosecutors by the Rules discussed here, in the context of custodial interrogations; and (3) declare that courts have the power under CPL § 65.45(b)(i), to suppress prejudicial involuntary statements procured through interrogations that violate the Rules of Professional Conduct." 18 For the reasons given, Amicus has argued for the remedy of suppression on these direct appeals. But it believes that the Court's decision should have only prospective application for purposes of lawyer discipline. See In re Anonymous, 32 A.D.2d 37, 40 (1st Dep't 1969) ("[T]he petition is in a sense a case of first impression. Under the circumstances, we will make the disposition that we have employed in comparable situations and dismiss the proceedings with a caveat to the Bar that instances of like will render the offender liable to appropriate disciplinary action") (citations omitted). 6627701 v.1 31 Respectfully submitted, ----Vs\AAK9 Barbara S. Gillers. Esq. Adjunct Professor of Law New York University School of Law 245 Sullivan Street, Room 511 New York, New York 10012-1301 Tel: 212-992-7364 Email: barbara.gillers@nyu.edu Eugene M. Gelerater, Esq. Amy N. Vegari, Esq. Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 Tel: 212-336-2000 E-mail: emgelernter@pbwt.com Attorneys for Amicus Curiae Dated: February 7, 2014 New York, New York 6627701v.1