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United States District Court, Southern District of New York

November 4, 1991


The opinion of the court was delivered by: Freeh, District Judge.


In these related cases, Linares v. Senkowski (91-CIV-3195) and Munoz v. Keane (91-CIV-0954), petitioners Zoilo Linares ("Linares") and David Munoz ("Munoz") seek writs of habeas corpus, primarily on the grounds that their prosecution by an individual not admitted to the bar of New York or any other state violated the due process clause of the federal constitution.*fn1 Linares and Munoz were codefendants, tried by the same prosecutor, in a single trial. For the reasons stated below, the petitions are denied.


On November 9, 1985, Linares and Munoz were arrested with four other individuals*fn2 and charged with first degree criminal possession and criminal sale of a controlled substance (cocaine). In May 1986, Linares and Munoz were tried on those charges along with Rosero and Sanchez-Medina,*fn3 and on June 19, 1986, they were convicted on both counts. Linares was sentenced to concurrent prison terms of seventeen years to life, and Munoz was sentenced to concurrent terms of twenty years to life.

The prosecutor that tried Linares and Munoz on behalf of the People of New York was Daniel J. Penofsky ("Penofsky"), a former assistant district attorney in the Special Narcotics Prosecutor's Office. An investigation conducted by the District Attorney's office in March 1989 disclosed that while Penofsky had graduated from law school, he had never been admitted to practice law in New York, that he had never sat for and thus never passed the New York bar examination, and that he had never submitted the documents necessary to obtain admission to the New York bar upon waiver of the examination requirement. People v. Munoz, 153 A.D.2d 281, 550 N YS.2d 691, 692 (1st Dept. 1990). Once this information became public, Penofsky resigned as an assistant district attorney. Id.

Both petitioners claim that because Penofsky was not an attorney admitted to practice law in New York, their trial was inherently unfair, in violation of the due process clause of the 14th amendment.*fn4 Both petitioners have also raised these claims in state court.*fn5


1. The Constitutional Claims

Linares and Munoz both claim that their prosecution by a "layman" deprived them of the safeguards necessary to ensure a fair trial. According to petitioners, the fact that Penofsky committed fraud in representing himself as an attorney indicates that he did not and could not comply with the constitutionally-imposed obligations of a prosecutor, such as the prosecutor's duty to (1) review evidence favorable to the accused, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963); (2) disclose to the defense all witness statements relating to a witness' testimony, Jencks v. United States, 353 U.S. 657, 672, 77 S.Ct. 1007, 1015, 1 L.Ed.2d 1103 (1957); and (3) when challenged, present a neutral explanation for any apparently discriminatory use of peremptory challenges during jury selection. Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986). (Linares Petition at 15-16).*fn6

Petitioners are correct in asserting that prosecutors have numerous obligations of constitutional dimensions.*fn7 The Supreme Court has repeatedly emphasized that "while [a prosecutor] may strike hard blows, he is not at liberty to strike foul ones. It is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).

Petitioners claim that their trial was not a "fair legal proceeding, as required by the Due Process Clause" because "[e]ach statement and representation uttered by Penofsky during the course of the trial and . . . pre-trial discovery is tainted by his unlawful conduct." (Linares Petition at 15). In essence, petitioners have formulated a new constitutional right — the right to be prosecuted by a licensed attorney. Apparently, no federal court has ever recognized such a right under the due process clause of the fourteenth amendment.

Petitioners cite only one state case, People v. Munson, 319 Ill. 596, 150 N.E. 280 (1925), imposing a requirement that a prosecuting attorney be licensed. In Munson, the Illinois Supreme Court vacated a criminal conviction on the grounds that the prosecutor was not an admitted attorney. In reaching that result, the Court noted that neither the state constitution nor any state statute required a criminal defendant to be prosecuted by a licensed attorney. 150 N.E. at 281. Nevertheless, the Court imposed such a requirement as a matter of common law, stating:

  [The state's attorney] is intrusted with broad
  official discretion. He is given power to file
  informations, sign indictments, and to sue out
  writs of subpoena and summons, thereby, in a
  measure, exercising the power of the court in
  representing the people in their cases. Both
  logic and the weight of authority require that
  one who discharges those duties have the
  qualifications of such an officer . . . [I]f he
  be an attorney for the people, he must be
  qualified to represent his client at law.
  [Id. at 281-82.]

Despite the broad language quoted above, Munson is not analogous to this case. The central issue in Munson was the validity, as a matter of state law, of an indictment obtained by an unlicensed attorney. 150 N.E. at 280. The New York courts have already addressed that question in Carter. Moreover, the Illinois court did not even discuss whether any federal constitutional rights were threatened by the prosecutor's unadmitted status.

Contrary to petitioners' claims, a prosecution conducted by an unlicensed attorney does not "violate[] a defendant's right to fair procedure [or] deprive[] him of constitutional safeguards guaranteed under the Due Process Clause." (Linares Petition at 13). The due process clause requires a fair trial, not a perfect one. Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). While it is obviously preferable that a prosecutor be licensed to practice law in the jurisdiction in which he or she practices, the fact that a prosecutor is not admitted does not necessarily undermine the fairness of the trial process.*fn8

Of course, the Second Circuit has found that the opposite does not hold true, and requires that a criminal defendant be represented by an admitted attorney. See United States v. Novak, 903 F.2d 883 (2d Cir. 1990) (reversing conviction where defense counsel obtained bar admission by false pretenses); Solina v. United States, 709 F.2d 160 (2d Cir. 1983) (same; defense counsel never admitted to the bar). However, defense counsel's distinct role in a criminal proceeding justifies treating the two situations differently.

A criminal defendant's right to counsel is a fundamental constitutional right, basic to a fair trial. See U.S. Const. amend. VI; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). "Assistance of counsel is mandated by the Sixth Amendment because lawyers `are the means through which the other rights of the person on trial are secured,' and through which the prosecution's case is subjected to `meaningful adversarial testing.'" Novak, 903 F.2d at 886 (quoting United States v. Cronic, 466 U.S. 648, 653, 656, 104 S.Ct. 2039, 2043, 2045, 80 L.Ed.2d 657(1984)). Defense counsel's sole responsibility in a criminal trial is to protect the defendant's interests.

By contrast, a prosecutor acts as a criminal defendant's adversary. While a prosecutor is obligated to seek justice, not only a conviction, a criminal defendant does not rely on a prosecutor to protect his rights. As a result, the fact that a prosecutor may be unlicensed to practice law has far fewer repercussions for the defendant than if his own counsel is not admitted. Where, as here, defense counsel and an impartial trial judge are capable of monitoring the prosecutor's conduct in order to ensure that no constitutional violations occur, it would be inappropriate to conclude that a due process violation automatically results from the prosecutor's unlicensed status.*fn9

The rationale for the new constitutional right proposed by petitioners is, presumably, that a prosecutor who lies about his bar admission cannot be trusted and may lie about other matters. That rationale, while facially appealing, could be used to overturn convictions even where the prosecutor is an admitted attorney if a criminal defendant can obtain evidence of other "dishonest" behavior on the part of the prosecutor, such as a failure to pay parking tickets or failure to file timely income tax returns. While this type of dishonest conduct on the part of a prosecutor is undesirable and may in fact lead to a prosecutor's dismissal, it is not grounds for a presumption that whenever a prosecutor "lies" about any matter — whether related to the criminal prosecution or not — criminal proceedings conducted by that prosecutor during the time of the dishonest conduct were unfair. Such a rule would effectively put prosecutors on trial, a complete reversal of the normal procedure for criminal prosecutions.

We also cannot ignore the practical implications of accepting petitioners' due process claim — every defendant convicted by Penofsky during his fourteen-year tenure as a prosecutor would be entitled to a new trial. Petitioners have not demonstrated a sufficient basis for invalidating such a large number of cases and have not suggested any way to limit the scope of their proposed constitutional rule. Accordingly, we decline to adopt it.

Even if we were to accept that there is a constitutional right to be prosecuted by a duly admitted attorney, an alleged constitutional violation will be considered harmless error unless that violation constitutes a "structural defect[] in the constitution of the trial mechanism" rather than "an error in the trial process itself." Arizona v. Fulminante, ___ U.S. ___, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). Unlike the right to defense counsel or trial before an unbiased judge, constitutional rights "so basic that their infraction can never be treated as harmless error," Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824-27, 17 L.Ed.2d 705 (1967), the "right" asserted here — to be prosecuted by an attorney licensed to practice law — does not qualify as a "structural defect . . . [in] the trial mechanism." Accordingly, reversal of petitioners' convictions is only appropriate if petitioners can demonstrate that Penofsky's conduct prejudiced them in some way.

Petitioners cannot show any such prejudice. No one disputes that Penofsky's conduct in misrepresenting himself as an admitted attorney was reprehensible and a clear violation of New York Judiciary Law § 478, which makes it unlawful for any unlicensed person to appear as an attorney-at-law. However, petitioners have not shown that Penofsky's status impacted his prosecution of this case. In the absence of any evidence that Penofsky failed to meet his constitutional obligations to petitioners, the requested relief must be denied.

Petitioners have also requested leave to take discovery to establish facts that would demonstrate they were prejudiced by Penofsky's conduct. The rules applicable to habeas corpus petitions state that, with leave of the court, a petitioner may employ all the discovery tools available under the Federal Rules of Civil Procedure. 28 U.S.C. § 2254, rule 6. Leave to conduct discovery should be granted to habeas petitioners only for good cause shown. Id.

Petitioners have not demonstrated any such "cause." Petitioners make only generalized statements about the possible existence of exculpatory Brady material that Penofsky may have withheld. Similarly, petitioners claim that they may be able to discover some evidence suggesting Penofsky deliberately acted to exclude minorities from the jury. (See discussion below). However, petitioners are not entitled to go on a fishing expedition through the government's files in the hopes of finding some damaging evidence. Because petitioners have not produced any specific evidence that supports their claims that Brady materials or evidence of discrimination exists, no discovery will be permitted.

2. Discriminatory Use of Peremptory Challenges

Both Linares and Munoz*fn10 claim that Penofsky exercised his peremptory challenges to discriminate against minorities, in violation of the equal protection clause of the fourteenth amendment. Batson v. Kentucky, supra, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After Penofsky had exercised eleven peremptory challenges, counsel for Linares objected that the prosecutor was using those challenges to exclude all Blacks and Hispanics from the jury. (Linares Petition at 23).*fn11 After a colloquy between counsel, the trial court stated that there had been no indication of discriminatory conduct on the part of either party. (Id. at 24). Jury selection continued and when complete, Penofsky had exercised peremptory challenges against one Hispanic juror (Maria Romano), one possibly Hispanic juror (Ms. Acensio), and three additional Black and Hispanic jurors. Munoz, 550 N.Y.S.2d at 694. Penofsky had also exercised a peremptory challenge against a juror he had initially sought to challenge for cause, on the grounds that her participation in an anti-apartheid demonstration demonstrated that she was hostile to police witnesses. (Linares Petition at 24). Petitioners now reassert their claim, raised at trial and on direct appeal, that Penofsky sought systematically to exclude minority groups from the jury. (Linares Petition at 25).

In order to make out a prima facie case of discrimination under Batson, petitioners must show (1) that they are members of a cognizable ethnic group; (2) that the prosecutor exercised his peremptory challenges to exclude members of that ethnic group from service on the jury; and (3) that the prosecutor's challenges and other conduct raise an inference that the prosecutor intentionally excluded potential jurors on the basis of race. 476 U.S. at 96, 106 S.Ct. at 1723. Petitioners cannot satisfy this standard. Although petitioners are Hispanic, which is a cognizable ethnic group, United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990), they have not demonstrated that Penofsky exercised his peremptory challenges to exclude members of that ethnic group.*fn12 As noted above, at least one Hispanic woman was selected as a juror. In addition, at least two of the jurors ultimately chosen were Spanish-speaking, and another was Filipino. Munoz, 550 N.Y.S.2d at 694.

In addition to being misplaced, the voir dire "record" before the Court is so unreliable as to defeat petitioners' Batson claims. No systematic effort was made during jury selection to determine the races of potential jurors. The Batson claims are based instead on trial counsel's statements, after voir dire was completed, that Penofsky had struck seven Black and Hispanic jurors. That counsel utilized the subjective and unreliable criteria of surnames is obvious from his statement that "Romano" is a Hispanic name, when it may well have been an Italian derivative.*fn13 Moreover, the names of any married women on the panel may have denoted their husband's ethnicity rather than their own. The record also reflects that one of the jurors challenged by Penofsky was Irish, despite co-counsel's initial complaint that another minority member was being excluded.

In sum, the record below regarding petitioners' Batson claims does not support a reasonable inference that Penofsky excluded jurors on account of their race. Indeed, the trial judge, who was present during jury selection and had the opportunity to observe Penofsky's conduct first-hand, determined that Penofsky was not excluding potential jurors based on their race. Given the other relevant circumstances, including the composition of the jury finally selected, petitioners have not made out a prima facie showing that the prosecutor contravened the Batson rule. Thus, the burden never shifted to the prosecutor to come forward with a racially neutral explanation for his challenges. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.

3. Ineffective Assistance of Counsel

Linares' final claim is that he was denied effective assistance of counsel when his trial attorney failed to investigate possible alibi witnesses and gave an inadequate closing argument. (Linares Petition at 31). The standard for ineffective assistance of counsel is stringent. Linares must demonstrate not only that defense counsel's conduct fell below an objective standard of reasonableness, he must also show that but for defense counsel's errors, the result of the trial would likely have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

Nothing presented by Linares suggests either that his trial attorney's presentation of the case was inadequate or that the result of the case would have been different had defense counsel acted differently. Linares' attorney apparently failed to investigate and present three witnesses who stated that they would have testified that Linares was attending a party with them on the night of the alleged drug sale. (Linares Petition at 32-34). Given the overwhelming evidence that Linares participated in the drug transaction at issue,*fn14 it was reasonable for defense counsel to conclude, as a strategic matter, that presenting testimony of the alleged alibi witnesses would be damaging to Linares' case. Moreover, had all three witness testified consistently with their affidavits submitted by Linares, the result of the trial would not likely have been different.

Defense counsel's summation was also more than adequate. Given the strength of the prosecution's evidence, defense counsel could do little more than challenge the credibility of the prosecution's witnesses and question the procedures followed by the police, which he did. Linares was not denied effective assistance of counsel in this regard.

4. Failure to Permit Witness to Testify

Munoz' final constitutional claim*fn15 is that he was deprived of the right to present witnesses. According to Munoz, the trial court refused to grant an adjournment in order that he might locate a defense witness, and further refused to permit that witness to testify when she arrived in court.

On the last day of the People's case, Munoz requested a one-day adjournment so that he could locate a Martha Cecelia ("Cecelia"), a witness who would testify on his behalf. The trial court granted that request. The following morning, Cecelia failed to appear, and counsel requested a final adjournment until 11:00 a.m. The court waited until 11:07 a.m., and, when the witness had not yet arrived, ordered defense counsel to begin their closing statements. Cecelia apparently appeared in court at 12:30 p.m., but because the court was on lunch break, it was not notified of her presence until 2:00 p.m. At that point, the trial court refused to allow the evidence to be reopened to permit her to testify. Munoz, 550 N.Y.S.2d at 694.

The trial court did not abuse its discretion or deny Munoz a fair trial by making this ruling. By the time Munoz' witness arrived at court, defense counsel had been giving closing statements for at least an hour and a half. In fairness to the other defendants, the trial court would have had to permit any defense counsel who wished to alter their statement an opportunity to do so after the witness had testified. After having already afforded Munoz a reasonable opportunity to locate his witness and have her present to testify, the trial court was not required to continue to delay the trial and reopen the evidence, particularly where the witness' testimony was only tangential to guilt or innocence. (Respondent's Brief at 43) (defense counsel represented that witness would testify that undercover police officer drank beer and asked co-defendant for pills prior to arrest).

For the foregoing reasons, the petitions are denied in all respects.


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