From prosecutor to private practice and back again.

New York Attorney General Cuomo has secretly convened a grand jury to investigate allegations of involvement by the New York State police in politically motivated plots to discredit state legislators and other politicians, according to an exclusive story in today’s New York Post. The Post says an unnamed source close to the New York Power Authority identified this secret grand jury as the source of the subpoena served on the Authority’s now-suspended inspector general, Daniel Wiese, a former colonel in the State Police. The article states that in late March, Governor Patterson sent Cuomo a letter authorizing him to conduct the inquiry under New York State Executive Law § 63.3, which allows an attorney general to investigate indictable offenses at the request of the governor.

The subpoena for Wiese’s electronic communications resulted in the revelation that these records had mysteriously gone missing. Then last week, the former State Police security chief for governors Spitzer and Pataki, Gary Berwick, committed suicide. The Post story says the grand jury has issued a subpoena for Berwick’s suicide note.

Cuomo has assembled an impressive team of lawyers and investigators to conduct the inquiry into the so-called Troopergate scandal, headed by former federal prosecutor Sharon McCarthy. The former Deputy Chief of the Criminal Division in the U.S. Attorney’s office in Manhattan, McCarthy gave up a lucrative partnership at Kostelanetz & Fink, a Manhattan law firm specializing in white collar and tax offenses, to take the position.

Since we’re right across the street from the New York AG’s office, I sometimes run into Sharon at Starbucks. Though she is always rushing off to work, she is invariably pleasant. But potential targets of her investigation should not be lulled into complacency by her pleasant demeanor. She is a skilled and tenacious prosecutor, and for her to leave her partnership to head this investigation, she must believe there is some meat on the bones of these allegations. CR

Eye of newt, anyone?

Late last week, the New York State Attorney General’s office launched a 12-hour raid on State Police headquarters in Albany as part of its ongoing investigation into former governor Spitzer’s alleged use of the state police to spy on Senate Majority Leader Joseph Bruno, the New York Post reported.

Even more troubling, the Post reports, the AG also sent the State Police a letter informing them that Glenn Valle, its longtime chief counsel, could not represent troopers implicated by the investigation.

Typically, prosecutors take this position when an attorney is either personally involved in the activities under investigation or has a conflict of interest. All we know is that during contentious hearings held last year before the state Senate Investigations Committee, Valle defended State Police for following Spitzer’s directives. Now state Republican lawmakers are calling for his resignation.

The problem is, there’s no referee. There’s no judge to ask for a decision. Where does the AG get off with unilaterally disqualifying an attorney? In any contested case in which a prosecutor wants to disqualify an attorney, there is a hearing with evidence and proof. The U.S. Attorney or DA does not write to the client and say, “Hey, buddy, gotta get a new lawyer.” They go to a judge and follow proper procedure.

Responding to the Post’s previous story about Governor Paterson’s request for the investigation, State Attorney General Cuomo issued a statement in which he pointed out that “combining politics and police work is a toxic brew.” By disqualifying an attorney without a hearing, the AG is only throwing more poisoned entrails into the cauldron. Let’s hope that the addition of local white-collar stalwarts Robert Fiske and Michael Armstrong as advisers in this inquiry, announced today, improves the AG's judgment.

Keep the cat in the bag!

On Monday, Albany County District Attorney P. David Soares asked newly minted New York governor David Paterson to allow evidence regarding the Elliot Spitzer / Joseph Bruno “Troopergate” investigation to be released to the public. Yesterday the governor sent New York Attorney General Andrew Cuomo a letter requesting a “formal advisory opinion” on waivers of executive privilege and the secrecy rules surrounding grand jury presentations.

While the press has focused on the issue of executive waiver, the real story seems to me to be the DA’s request for a “waiver of Grand Jury secrecy” under a specific section of the New York Criminal Procedure Law that deals with motions to quash subpoenas. As I told New York Times reporter Danny Hakim when he called me yesterday for comment, a grand jury is ostensibly a protection for us all. It is a buffer between the unfettered power of the state and an individual citizen’s rights. A prosecutor convenes a grand jury to go after bad guys. If there are no charges, then the grand jury process should not be made public. That’s what the rules say. By the way, it’s nice to have a law professor of the stature of Stephen Gillers say I got it right! CR