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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.

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 ...

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