1
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY -----------------------------------------------------------X PEOPLE OF THE STATE OF NEW YORK, - against – NOTICE OF MOTION GIGI JORDAN, Ind. No: 00621/10 Defendant. -----------------------------------------------------------X
PLEASE TAKE NOTICE, that upon the Affirmation of Allan L. Brenner, dated
December 5, 2013, the exhibits annexed hereto, and the proceedings had heretofore, the
accused herein GIGI JORDAN, by and through counsel, will move this Court, at a
Criminal Term, Part 82, 100 Centre Street, New York, New York, on the 6th day of
December, 2013, for an Order 1) disqualifying Assistant District Attorney Matthew
Bogdanos from participating in the prosecution of the above-captioned indictment or, in
the alternative, 2) setting the matter down for an evidentiary hearing on the issue of a
conflict of interest and/or the appearance of impropriety, and 3) for such other and further
relief as this Court may deem necessary and proper.
Dated: Long Beach, New York December 5, 2013 YOURS, ETC., Allan L. Brenner, Esq. 536 West Penn Street – 2nd floor Long Beach, New York 11561 (516) 897-6145
2
Michael G. Dowd The Law Office of Michael G. Dowd 425 Park Avenue, 26th Floor New York, NY 10022 (212) 751-1640 Ronald L. Kuby Law Office of Ronald L. Kuby 119 West 23rd Street, Suite 900 New York, NY 10011 (212) 529-0223
Attorneys for Gigi Jordan
OF COUNSEL: Alan M. Dershowitz
TO: A.D.A. Matthew Bogdanos
1
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY -------------------------------------------------------------------------X PEOPLE OF THE STATE OF NEW YORK - against – ATTORNEY’S AFFIRMATION GIGI JORDAN, Defendant. -------------------------------------------------------------------------X ALLAN L. BRENNER, an attorney admitted to practice before the courts of the State of
New York, affirms the following under penalty of perjury:
1. I am one of the attorneys representing Ms. Jordan in the above-captioned
indictment and, as such, am fully familiar with the facts and circumstances underlying
this application.
2. I am submitting this Affirmation in support of the within motion for an
order: 1) disqualifying Assistant District Attorney Matthew Bogdanos from participating
in the prosecution of the above-captioned indictment or, in the alternative, 2) setting the
matter down for an evidentiary hearing on the issue of a conflict of interest and/or the
appearance of impropriety, and 3) for such other and further relief as this Court may
deem necessary and proper.
3. This motion is predicated upon a conflict of interest and/or appearance of
impropriety emanating from the interrelationship between Assistant District Attorney
Matthew Bogdanos, his attorney/wife Claudia Bogdanos, and Raymond A. Mirra, Jr., a
potential material witness at the trial of this indictment.
4. As this Court is undoubtedly aware, from the onset of the criminal
prosecution, Mirra has been at the fulcrum of dispute between the defense and
2
prosecution. In numerous pleadings and extrinsic sources, the defense has accused Mirra
of financial criminal wrongdoing on a massive scale, and proffered as central to her
defense Ms. Jordan’s knowledge of same as motive for his threats against her son.
Conversely, the prosecution interposed itself as apologist in chief for Mirra, defending his
integrity and probity at every possible juncture. For example, in the prosecution
memorandum opposing Ms. Jordan’s application for bail, A.D.A. O’Connell wrote:
The defendant states that Mirra and his employees repeatedly forged the defendant’s signature on various real estate deeds, loan instruments, trust instruments, brokerage accounts, and wire transfers in order to benefit Mirra and Mirra-owned companies. (Motion at p. 25). The defendant has also provided a forensic audit along with three volumes of exhibits in an attempt to support these accusations. However, a careful examination of the relevant financial documents, coupled with the information provided from independent parties with first-hand knowledge of these transactions, demonstrates that these claims of financial fraud are nothing more than baseless allegations made for the sole purpose of diverting attention away from the defendant’s own criminal conduct.
(Corrected Copy of People’s Response to Defendant’s Memorandum of Law…, August
1, 2011, unpaginated, emphasis added). The prosecution predilection for absolving
Mirra, while discounting Ms. Jordan’s well-documented allegations of his wrongdoing,
has been palpably clear.
Many of the financial fraud allegations made by the defendant revolve around various Merrill Lynch accounts that the defendant and Mirra had opened jointly and separately over the years… Each of these accusations is disproven by a careful review of the documents and by information obtained from Merrill Lynch regarding these accounts. There is no indication that the defendant’s signature was forged on any of the documents needed to open these sub-accounts. There appears to be no fraud associated with these accounts. Similarly, all of the wire transfer activity associated with these accounts also appears to be legitimate. Since Mirra had joint ownership on many of the accounts these disputed wires originated from, he was authorized to make those transfers.
(Id., emphasis added).
3
5. In deference to Mirra’s status both as a material witness and an antagonist
to Ms. Jordan, the prosecution team has willfully avoided and actively has sought to
suppress all evidence of his nefarious dealings. After the defense filed its extensive,
detailed allegations of financial fraud by Mirra against Ms. Jordan in its bail motion,
Gerard Monevsky of the Major Economic Crimes Bureau of the Manhattan District
Attorney’s Office called Ms. Jordan’s attorneys purporting an interest in investigating the
financial allegations against Mirra and requesting a meeting in furtherance of such
inquiry. The defense offered Ms. Jordan's assistance and all the principals agreed that a
final set of documents would be provided to Monevsky. These exhibits were transmitted
under cover of a conciliatory letter, annexed hereto as Exhibit A. But the defense never
heard back from A.D.A. Monevsky. All of his interest in a Mirra investigation, whether
real or feigned, dissipated in the face of the District Attorney’s apparent need to
countervail Mirra’s dubious status.
6. The prosecution’s interests in preserving Mirra’s false integrity traversed
courts, claims and jurisdictional boundaries. Indeed, in the pending Motion to Dismiss
for Outrageous Prosecutorial Misconduct, Ms. Jordan details the active efforts undertaken
by the District Attorney’s Office to derail any independent criminal investigation of
Mirra. In 2011, the defense approached the Office of the United States Attorney for the
Southern District to investigate the financial fraud perpetrated by Mirra against Ms.
Jordan. While it is true that the U.S. Attorney did not pursue an investigation, this was in
no small measure due to the prosecution’s express objections to the U.S. Attorney in
regard to a federal criminal probe of Mirra’s nefarious activities.
4
7. During the course of the bail litigation, the prosecution again castigated
Ms. Jordan in defense of Mirra, further discounting Ms. Jordan’s allegations of his
financial fraud in light of her failure to file a civil suit against him:
Considering the defendant’s history, Ray Mirra and his business associates could have easily defeated any claims of fraud brought in a court of law – which the defendant never did bring…
(Corrected Copy of People’s Response to Defendant’s Memorandum of Law…, August
1, 2011, unpaginated). The prosecution assailed Ms. Jordan for not availing herself of the
forum of civil court, implying that the failure to so litigate underscored the illegitimacy of
her claims against Mirra. The absurdity of such illogic is matched only by the hypocrisy
of the ensuing actions on the part of the District Attorney’s Office. In April of 2012,
when Ms. Jordan launched the very civil suit the prosecution claimed could be “easily
defeated”, including claims of fraud, theft, conversion, forgery, conspiracy, breach of
fiduciary duty and other financial misconduct in the Southern District of New York, the
prosecution moved with astounding alacrity, bringing a motion to intervene and
successfully procuring a stay of Ms. Jordan’s civil matter. (See copy of the Order of
Hon. Katherine B. Forrest, annexed hereto as Exhibit B). Despite the lack of nexus
between the claims asserted in Ms. Jordan’s lawsuit and the prosecution’s theory of Ms.
Jordan’s criminal complicity, while mocking her for not suing Mirra, the Office of the
District Attorney now claimed that the lawsuit was prejudicial to the criminal discovery
process. Mirra was represented by the law firm of Debevoise & Plimpton, who
ultimately joined in the application to stay all discovery pending the resolution of the
instant criminal case. The intervenor application further evinces the prosecution’s
inappropriate desire to protect Mirra and to vouch for his dubious integrity:
5
. . . during the criminal investigation relating to the murder of Ms. Jordan’s son Jude, the Office of the District Attorney conducted interviews with Mr. Mirra and his colleagues that related to, among other things, the business relationship between Ms. Jordan and Mr. Mirra. As the criminal case moves forward to trial, additional interviews of Mr. Mirra will take place in the anticipation of calling him as a witness during the criminal trial. The District Attorney believes there is no evidence to support the contention that either Ms. Jordan or her child were threatened with imminent deadly force by Mr. Mirra or any other person.
(Memorandum of Law in Support of Application to Intervene…, April 23, 2012, at 6, emphasis added).
8. Astoundingly, the prosecution continued to aggressively fend for Mirra as
an important “material witness” (id. at 7) in their April 23, 2012 motion to stay and in a
more recent motion to stay an action brought by Mirra against Ms. Jordan (see infra,
para. 8) despite a press release by New York A.G. Eric Schneiderman three weeks earlier
wherein the A.G. announced an investigation and several indictments regarding a $274
million black marketing drug diversion, money laundering, bribery, and Medicaid fraud
scheme related to the distribution of HIV-AIDS prescription drugs of “massive”
proportions. The investigation involved Mirra’s company Allion Healthcare Inc., and its
subsidiary “MOMS”, a national HIV-AIDS mail order pharmacy. (A.G. Schneiderman
Announces Arrests In $274 Million Black Market Prescription Drug Operation, April 4,
2012, available at: http://www.ag.ny.gov/press-release/ag-schneiderman-announces-
arrests-274-million-black-market-prescription-drug-operation). Just as the District
Attorney’s Office spurned Ms. Jordan’s allegations of Mirra’s financial fraud against her,
they now ignored strong corroboration for Ms. Jordan’s allegations of her knowledge of
Mirra’s healthcare fraud. The District Attorney’s Office was well aware of Ms. Jordan’s
claims, as she had detailed on the night of the tragedy that her knowledge of Mirra’s
6
financial and health care fraud (particularly mentioning his nefarious activities in the area
of HIV-AID’s) was motive for Mirra’s threats.
9. In August of 2013, in open defiance of the spirit of the stay he had helped
to procure, Mirra filed a defamation lawsuit against Ms. Jordan in the Southern District of
New York. The claims raised in this action closely mirror those raised in Ms. Jordan’s
lawsuit stayed by the District Attorney’s office and Mirra. In his complaint, Mirra
alleged that in an interview with a New York Daily News reporter, Ms. Jordan called him
a thief, a looter, a criminal and an associate of organized crime who forged millions in
bank transfers and withdrawals. Virtually all of the challenged statements mirror the
substantive allegations that Ms. Jordan brought against Mirra in her forestalled lawsuit.
In this new civil matter, Mirra changed counsel from Debevoise & Plimpton to the law
firm of Quinn Emanuel Urquhart & Sullivan, LLP. On the initial filing sheet for this
lawsuit, the name of Claudia Bogdanos, an intellectual property specialist at Quinn
Emanuel, and the wife of Matthew Bogdanos, appeared as an identified recipient of all
filings in the case. Under the federal ECF system, Ms. Bogdanos was formally entered as
a person who would receive notice of every development in the case, and copies of all
documents filed during the pendency of the lawsuit. The defense inadvertently learned of
Ms. Bogdanos’ involvement for the first time on November 12, 2013, when Ms. Jordan’s
attorneys received the first ECF transmission in the case, annexed hereto as Exhibit C.1
1 The defense takes note that a successful motion to stay was brought by A.D.A. Bogdanos’ office immediately when Ms. Jordan sued Mirra, under the guise that deposition testimony and documents furnished by Mirra would unfairly exceed the breadth of discovery Ms. Jordan would otherwise be entitled to in the criminal case against her. But in the lawsuit filed by Mirra against Ms. Jordan, initiated by Mrs. Bogdanos’ firm, Mr. Bogdanos did not move to stay Mirra’s action for more than three months, even as it presented veritably the same issues objected to by Mr. Bogdanos’ office as the basis for the stay in Ms. Jordan’s action. Mr. Bogdanos only moved to stay Ms. Jordans action after receiving defense counsel’s letter advising of our intent to move for his disqualification.
7
The following day, the second ECF transmission evinced that Mrs. Bogdanos had been
surreptitiously removed as a noticed attorney.
10. On November 15, 2013, we notified A.D.A. Bogdanos of our intention to
bring this motion. In response, we received a letter from A.D.A. Bogdanos, dated
November 18, 2013, together with an Affirmation by Robert Raskopf, the Quinn
Emanuel partner who is designated as lead counsel in the defamation action.
11. The perfunctory explanation tendered by Mr. Raskopf ultimately raises
more questions than it answers. It superficially purports to legitimize the presence of
Mrs. Bogdanos’ name on a civil suit involving a material witness in a criminal case being
prosecuted by her husband. It does not begin to explain the manner in which Mirra ended
up with a firm to which the wife of a senior prosecutor is of-counsel. The statistical
likelihood that Mirra accidentally chose this firm, and that the familial connection is
coincidental, is infinitesimally small.
12. In addition, whenever Mirra retained the services of Quinn Emanuel,
several facts had to be readily apparent to Mr. Raskopf or whoever initially interviewed
Mirra. Given that Mirra’s claims revolved around an interview given by Ms. Jordan
during the course of the criminal prosecution, the firm surely knew that Mirra was in the
eye of that particular storm. Indeed, it would have been irresponsible for the firm not to
have assessed that Mirra was considered a material witness by the prosecution team, and
Ms. Jordan’s principal antagonist as alleged by the defense. Frankly, any due diligence
of Mirra’s status would have revealed his controversial standing in the criminal case
being prosecuted by the bureau of which Mrs. Bogdanos’ husband is a senior member.
Nevertheless, the case was assigned to a partner whose “team” as per Mr. Raskopf,
8
included Claudia Bogdanos.
13. Moreover, Mr. Raskopf and his “team” had to have known that Mirra was
already a defendant in a civil suit, in which Ms. Jordan had formally accused him of the
very criminal activity upon which many of the “defamatory” statements are predicated.
Again, even a cursory review of the docket would have revealed that Mr. Bogdanos’
office had intervened to forestall Ms. Jordan’s civil pursuit of Mirra, unequivocally
asserting his status as a “material witness” against Ms. Jordan, and seeking to insulate
him from the requirements of civil discovery. It is worrisome that having undoubtedly
learned of the dual dimensions of Mirra’s relationship with the District Attorney’s office,
Quinn Emanuel, as least as explained by Mr. Raskopf, assigned the matter to a team that
“by default” included the wife of a prominent prosecutor with that same office.
(Affirmation, Robert L. Raskopf, Nov. 17, 2013.)
14. Finally, with all due respect to Mr. Bogdanos, it is unclear from his letter
whether he is asserting that he had no knowledge that his wife’s firm (specifically a team
of which she is a routine member) was representing Mirra in a contentious lawsuit against
Ms. Jordan. It is difficult to imagine that the subject of Raymond Mirra and Gigi Jordan
has not been a topic between he and his wife in the last thirty days. It is unquestioned
however, that Mr. Bogdanos did not unilaterally reveal this conflict to the Court or
counsel; it was only after we notified him of our intention to bring this motion that he
came forward with any salient details.
15. Ultimately, we find that the Bogdanos letter and the Raskopf Affirmation
fall far short of resolving the factual questions surrounding either the actual conflict or
prejudicial appearance of impropriety at issue. Instead, we submit that the manner in
9
which Mr. Raskopf figuratively tiptoes around the larger questions accentuates the merit
of our concerns. These issues can only be satisfactorily explored at an evidentiary
hearing, at which the principal figures (Mirra, Claudia Bogdanos and Matthew
Bogdanos) can be questioned under oath.
16. Courts have generally held that public prosecutors should be removed to
protect against "actual prejudice arising from a demonstrated conflict of interest or a
substantial risk of an abuse of confidence." People v. Jaquish, 853 N.Y.S.2d 485, 488
(Cty. Ct., Essex Cty. 2007); See generally People v. Zimmer, 51 N.Y.2d 390, 394 (1980).
While an appearance of impropriety, standing alone, will not usually justify
disqualification, "[t]here are recognizable instances where the appearance of impropriety
is so strong that the failure to [disqualify] would 'weaken the appearance of fairness.'"
People v. O'Connell, 8 Misc. 3d 1009(A) at *4, 801 N.Y.S.2d 780 at *4 (N.Y. Crim. Ct.
2005) quoting People v. Nuzzi, 128 Misc2d 502, 508 (S. Ct. N.Y. Cty. 1985). 2
17. There is an equally well-ensconced policy regarding the special function
of the prosecuting attorney. The courts have repeatedly emphasized that a prosecutor
wields power over an individual’s liberty and reputation to a degree that may exceed the
power vested in any other public official. People v. Zimmer, 51 N.Y.2d at 394. “It
would be simplistic therefore to think of the impact of a prosecutor’s conflict in terms of
explicit instances of abuse.” (Id.) As such, “the role of the public prosecutor is not
merely to convict but to foster the trust of the public in the criminal justice system. In
2 The rigid application of this standard may well be attenuated by the nature of the relief we are actually seeking. The general rubric of the relevant stare decisis covers cases in which the application is to disqualify an entire office, and appoint a special prosecutor in its place. Our application seeks only to disqualify A.D.A. Bogdanos, given his individual and unique nexus to the law firm which is promoting Mirra’s civil interests.
10
fulfilling that function it is essential that a prosecutor avoid even the appearance of
impropriety (Code of Professional Responsibility EC 7-13; Canon 9…” People v.
Gentile, 127 A.D. 2d 686, 689 (2d Dept. 1987) quoting People v. Baker, 99 A.D. 2d 656
(4th Dept. 1984).
18. In this regard, the Court need look no further than the mandate contained
in the ABA Standards for Criminal Justice, Third Edition: Prosecution Function and
Defense Function, (1993). Section 3-1.3(a) explicitly states that the “prosecutor should
avoid a conflict of interest with respect to his or her official duties.”
19. The Commentary to Section 3-1.3 could not be more cogent in its
contemplation of the type of conflict at hand here:
A prosecutor's own interests, of whatever nature, should never be permitted to have an adverse effect on the professional performance of the prosecutor's official duties and obligations. For example, a prosecutor's past, present, or anticipated future personal, business, or employment relationship with an accused person, a potential witness, or another lawyer must not be permitted to affect the prosecutor's charging decisions or the prosecutor's handling of prosecutions or appeals.
(Emphasis added). In addition, Section 3-1.3 (h) expressly sets forth:
A prosecutor should not recommend the services of particular defense counsel to accused persons or witnesses unless requested by the accused person or witness to make such a recommendation, and should not make a referral that is likely to create a conflict of interest. Nor should a prosecutor comment upon the reputation or abilities of defense counsel to an accused person or witness who is seeking or may seek such counsel's services unless requested by such person.
The Commentary to this section specifically condemns the type of inter-familial
overlapping seemingly at work in the instant case. In discussing the circumstances under
which a prosecutor might help a witness such as Mirra procure legal counsel, the framers
11
of the standard mandate that such a referral must “not otherwise raise some other specific
question of actual conflict of interest, e.g., it is a referral to the prosecutor's spouse or
law partner.” (Id. at Commentary, emphasis added).
20. The philosophy underlying this section speaks for itself. While at present
there is no evidence to suggest that Mr. Bogdanos or any other person in the New York
County District Attorney’s Office actually referred Mirra to Mrs. Bogdanos or her firm
for representation in his current defamation suit against Ms. Jordan, the inferential specter
of impropriety is, with all due deference, a “coincidence” of untoward appearance.
21. The guidelines of the National District Attorneys’ Association are no less
compelling in this regard. Declaring “[t]he prosecutor is an independent administrator of
justice,” these standards mandate that “[a] prosecutor should zealously protect the rights
of individuals, but without representing any individual as a client.” (National District
Attorneys Association, National Prosecution Standards, Third Edition, 1-1.1, 1-1.2).
22. These standards go beyond the general principles of ethical prosecution,
and delineate boundaries beyond which a prosecutor must not tread. In the subsection
specifically addressed to conflicts of interest, Standard 1-3.1 proscribes:
A prosecutor should not hold an interest or engage in activities, financial or otherwise, that conflict, have a significant potential to conflict, or are likely to create a reasonable appearance of conflict with the duties and responsibilities of the prosecutor’s office.
And, at Standard 1-3.3(d):
The prosecutor should excuse himself or herself from any investigation, prosecution, or other matter where personal interests of the prosecutor would cause a fair-minded, objective observer to conclude that the prosecutor’s neutrality, judgment, or ability to administer the law in an objective manner may be compromised.
12
(Emphasis added). The very nature of the role which Mr. Bogdanos fills as a prosecutor
mandates his disqualification when it appears he is prosecuting a defendant who is party
to a lawsuit to which he has some demonstrable financial connection. As the courts have
repeatedly held, a prosecutor performs a “quasi-judicial role of ‘represent[ing] the public
in bringing those accused of crime to justice.”’ Matter of Haggerty v. Himelein, 89
N.Y.2d 431, 435 (1997), quoting Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 51
(1983); see also Matter of Forte v. Supreme Ct. of State of N.Y., 48 N.Y.2d 179, 185
(1979); Matter of Dondi v. Jones, 40 N.Y.2d 8, 13 (1976); Matter of Rush v. Mordue, 68
N.Y.2d 348, 353 n. 3 (1986). The Court of Appeals long ago affirmed that “[a]ny
relation between a judicial officer and a subject-matter, through which he [or she] may be
affected to his [or her] personal or pecuniary advantage or disadvantage, or required to
account for acts in respect thereto in a representative capacity, is a disqualifying interest.”
Matter of Hancock, 91 N.Y. 284, 288 (1883). Given that mandate, “public confidence in
the office . . . demands that there be no conflict of interest or appearance of a conflict.”
People v. Schrager, 74 Misc.2d, 833, 834 (Sup. Ct., Queens Cty. 1973).
23. The appearance of impropriety remains a salient factor in assessing
whether a prosecutor should be disqualified, and has retained its status across the national
judicial landscape. For instance, in Lovell v. Winchester, 941 S.W.2d 466 (Sup. Ct. Ky.
1997), the Kentucky Supreme Court acknowledged that “…the appearance of
impropriety is still a useful guide for ethical decisions.” (Id. at 468.) The application of
that standard “ . . . promotes the public’s confidence in the integrity of the legal
profession. For these reasons, courts still retain the appearance of impropriety standard
as an independent basis of assessment.” (Id. at 469.) See also, Gomez v. Superior Court,
13
717 P.2d 902 (Ariz. 1986) (holding that the appearance of impropriety standard in the
Arizona Rules of Professional Conduct still remains a valid claim for purposes of
disqualification of an attorney); Stowell v. Bennett, 739 A.2d 1210, 1212 (Vt. 1999)
(“Although the new Rules of Professional Conduct do not expressly state that a lawyer
should avoid the appearance of impropriety, other courts have concluded that the
principle continued to apply ‘because its meaning pervades the Rules and embodies their
spirit.’”); Continental Resources, Inc. v. Schmalenberger, 656 N.W.2d 730, 738 (N.D.
2003) (citation omitted) (“Although the [new] Rules ‘do not use the language, the
‘appearance of impropriety’ standard has not been wholly abandoned in spirit.’”).
24. The applicability of the appearance of impropriety factor resonates most
strongly where the questioned conduct is by a public prosecutor, since it is the
embodiment the Rules refer to as ‘moral and ethical considerations’ that should guide
lawyers, who have ‘special responsibility for the quality of justice.’” First American
Carriers, Inc. v. Kroger Co., 787 S.W.2d 669, 672 (Ark. 1990). See also People v. Witty,
36 P.3d 69, 73 (Colo. App. 2000).
25. The salient facts in this case lead inexorably to the conclusion of both an
actual conflict of interest and the appearance of impropriety. It does not require either
conjecture or speculation to posit that Mrs. Bogdanos is a well-compensated attorney in
the employ of Quinn Emanuel. Nor is it beyond the pale of reason to aver that the firm
will be profitably remunerated for its efforts on Mirra’s behalf. As such, Mrs. Bogdanos
and her firm have a clear financial interest in prevailing against Ms. Jordan, an interest
logically imputable to Mr. Bogdanos by virtue of their joint household. This would seem
to be precisely the “pecuniary advantage” which the case law forbids. At the very least, it
14
creates the appearance of a prejudicial triangular tension between Mr. Bogdanos’ ethical
obligations as a prosecutor and Mirra’s civil interests, with Mrs. Bogdanos’ remuneration
as a corrosive element. Mr. Bogdanos will be calling Mirra to testify against Ms. Jordan,
while Mirra’s pursuit of civil financial gain against Ms. Jordan is being shepherded by a
law firm of which Mr. Bogdanos’ wife is a prominent member and who appears directly
connected to Mirra’s case.
26. Moreover, the actual trial scenario by which this series of ill-timed events
plays itself out is disquieting. If, as they have repeatedly pronounced, the prosecution
calls Mirra as a witness on its direct case, cross-examination as to bias and hostility is not
only proper, but provable by extrinsic evidence. This would include, of course, the
pendency of the two federal civil lawsuits in which Ms. Jordan is his sole antagonist, in
which he has both a potential and actual pecuniary and penal interest. It is difficult to
imagine not being permitted to inquire as to his representation by Quinn Emanuel and the
degree to which the lead prosecutor’s wife is involved in shepherding his financial
interests. This appearance of systemic bias is so stark as to cloud the visage of Mr.
Bogdanos as the impartial prosecutor committed only to seeking truth and justice.
Instead, it does have the genuine appearance that one of the prosecution’s primary goals
is to protect both Mirra’s penal and pecuniary interests.
27. This is not an application we bring lightly or frivolously, nor do we seek
to engender further delay in a case whose pace has been curtailed by repeated instances
of prosecutorial recalcitrance and foot-dragging. Nevertheless, Ms. Jordan is entitled to
both justice and the appearance of justice, and what has transpired to date undermines
both equally. In People v. Dehle, 166 Cal. App. 4th 1380 (2008), the California Court of
15
Appeals was eloquent in its assessment of the prosecutorial function, and its mandate
serves as a guidepost for the adjudication of this motion:
The importance, to the public as well as to individuals suspected or accused of crimes, that these discretionary functions be exercised `with the highest degree of integrity and impartiality, and with the appearance thereof' (People v Superior Court (Greer) [citation omitted]) cannot easily be overstated. The public prosecutor `"is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done . . .
The nature of the impartiality required of the public prosecutor follows from the prosecutor's role as representative of the People as a body, rather than as individuals. `The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of "The People" includes the defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but who give over to the prosecutor the authority to seek a just result in their name.' [citation omitted]
Thus the district attorney is expected to exercise his or her discretionary functions in the interests of the People at large, and not under the influence or control of an interested individual.
( Id. at 1387-88, emphasis added.)
28. The Appellate Division has held that “[w]here it appears that a substantial
issue of fact exists as to whether there is a conflict of interest, the appropriate procedure
may be to conduct an evidentiary hearing in advance of disposition of the motion to
disqualify.” Elghanayan v. Elghanayan, 107 A.D.2d 594, 595 (1st Dept. 1985); See also
Kaufman v. Kaufman, 63 A.D.2d 609 (1st Dept. 1978); Saftler v. Government Employees
Ins. Co., 95 A.D.2d 54, 57 (1st Dept. 1983). At the very minimum, the defense submits
that the substantial questions raised regarding an actual conflict of interest and a
prejudicial appearance of impropriety require the Court to conduct an evidentiary
hearing.
16
WHEREFORE, based upon the foregoing, it is respectfully requested that the
Court grant this motion in its entirety, and for such other and further relief as the Court
may deem necessary and proper.
________________________ Allan L. Brenner
Gerard Monevsky Major Economic Crimes Bureau District Attorney New York County 80 Centre Street NewYork,NY
BY HAND·
Re: Gigi Jordan
Dear Gerard:
June 30, 2010
Good to speak with you today. Enclosed please find the amended documents that were actually filed as part of the motion for bail. I have also enclosed a disc, which includes the bails memorandum and other exhibits, for your convenience.
Best.
Ron
DOC N:-""I'rI:'TT""'"T"-;;;-=-::-:=-1
USDCSDNY
DOCUMENT ELECTRONICALLY FILEDUNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK -----------------------------------X
GIGI JORDAN,
Plaintiff, 12 Civ. 1742 (KBF)
-v- ORDER
RAYMOND A. MIRRA, JR.,
Defendant.
----------------------------------------x KATHERINE B. FORREST, District Judge:
Plaintiff Gigi Jordan filed this action against her
ex-husband, defendant Raymond A. Mirra, Jr., on March 9, 2012,
bringing claims for, inter alia, fraud and fraud in the
inducement, breaches of various contracts, breach of fiduciary
duty, and an accounting. (Dkt. No. I.' All of plaintiff's
claims are based upon numerous financial transactions in which
she and defendant allegedly jointly engaged during their
marriage as well as upon the alleged events subsequent to those
transactions that occurred during and after their divorce.
Plaintiff is also a defendant in a criminal proceeding
pending before the Honorable Charles H. Solomon, Jr. in the
Supreme Court of the State of New York, County of New York. In
that action, she is charged with Murder in the Second Degree
under New York Penal Law § 125.25(1), for the poisoning of her
eight-year old son.
Case 1:12-cv-01742-KBF Document 23 Filed 05/17/12 Page 1 of 5
On April 25, 2012, Cyrus A. Vance, Jr., District Attorney,
New York County, State of New York (the "District of Attorney"),
moved to intervene in this action pursuant to Rule 24 of the
Federal Rules of Civil Procedure for the limited purpose of
seeking a stay of discovery (and in fact, did seek such a stay) .
The District Attorney moves for a stay of discovery pending
disposition of the criminal matter against plaintiff Jordan.
(Dkt. No. 15.) Specifically, the District Attorney argues that
a stay of discovery is necessary to prevent plaintiff here from
making an end run around the criminal procedure rules related to
discovery. In her criminal proceedings, Jordan has advanced a
novel defense--i.e., filial patricide--which is premised, in
substantial part, upon the same financial transactions that are
at issue in the instant civil action before this Court.
It is well settled that intervention by the government is
permitted for the limited purpose of seeking a stay when there
is a related criminal proceeding involving overlapping questions
of law or fact. See, e.g., Morris v. Am. Federation of State,
Cnty. & Mun. Emps., No. 99 Civ. 5125, 2001 WL 123886, at *1
(S.D.N.Y. Feb. 9, 2011) (collecting cases) i Twenty First Century
Corp. v. LaBianca, 801 F.Supp. 1007, 1009 (E.D.N.Y. 1992).
Thus, the Court will allow the District Attorney to intervene
here and will consider the motion for a stay.
Case 1:12-cv-01742-KBF Document 23 Filed 05/17/12 Page 2 of 5
It is likewise settled that "the power to stay proceedings
is incidental to the power inherent in every court to control
the disposition of the causes on its docket with economy of time
and effort for itself, for counsel, and for litigants." Landis
v. N. Am. Co., 299 U.S. 248, 254 (1936) j accord Louis Vuitton
Malletier S.A. v. Ly USA, Inc., 676 F.3d 83, 96 (2d Cir. 2012)
(quoting Landis. The power to stay a parallel--or related-
civil proceeding in favor of disposition of a criminal
proceeding falls well within that power--and is well-recognized
and accepted. Louis Vuitton, 676 F.3d at 97 104; see also
Volmar Distribs., Inc. v. New York Post Co., Inc., 152 F.R.D.
36, 39 (S.D.N.Y. 1993).
In considering the factors used to decide whether to grant
a stay, see Louis Vuitton, 636 F.3d at 99 & 100 n.14
(recognizing the five-factor test used by courts in this
District, but suggesting that courts should also consider the
amount of overlap between the civil and criminal actions as a
sixth factor), the Court also is informed by the delicate
concerns related to balancing the discovery interests between
parallel criminal and civil proceedings, Campbell v. Eastland,
307 F.2d 478 (5th 1962); accord Twenty First Century Corp., 801
F.Supp. at 1010. There are significant policy reasons
underlying the narrow scope of discovery in criminal
proceedings. Judge Wisdom in Campbell cautioned judges to "give
Case 1:12-cv-01742-KBF Document 23 Filed 05/17/12 Page 3 of 5
substantial weight to [the public interest in law enforcement]
in balancing th[ose] polic[ies] against the right of a civil
litigant to a reasonably prompt determination of his civil
claims or liabilities." 307 F.2d at 487.
In comparing the Complaint in this action to Jordan's
Memorandum of Law in Support of Bail (and the exhibits annexed
thereto) filed in the criminal proceeding, the Court finds that
her theory of her novel "filial patricide" defense includes
significant reliance upon the same financial transactions at
issue here see Dkt. Nos. 16-1 through 16-5). Without a stay,
plaintiff may be able "to gain evidence to which [she is] not
entitled under the governing criminal discovery rules" given
that certain critical "issues in the civil and criminal
proceedings overlap extensively." Twenty First Century Corp.,
801 F.Supp. at 1010.
Any purported prejudice to plaintiff in the face of such a
stay {see PI.'s Mem. in Opp'n to Application to Intervene and
For a Stay of Discovery (Dkt. No. 18) at 9-10) (of which the
Court finds there is little) is far outweighed by the detriment
to the public if the Court allowed an end run around the narrow
discovery rules of criminal procedure. Accordingly, it is
hereby
ORDERED that the instant action is STAYED pending further
order of the Court.
Case 1:12-cv-01742-KBF Document 23 Filed 05/17/12 Page 4 of 5
.IT IS FURTHER ORDERED that the District Attorney is
directed to provide status updates regarding the status and
progress of the criminal proceedings against Jordan in New York
State Court every 90 days. The updates should be submitted via
letter to the Court, with copies provided to the parties in this
action.
The Clerk of the Court is directed to place this action on
the suspense docket.
The Clerk of the Court is further directed to terminate the
motions at Docket Nos. 15 and 22.1
SO ORDERED:
Dated: New York, New York May.13::-, 2011
KATHERINE B. FORREST United States District Judge
The Court's decision did not rest in any way on anything represented by the District Attorney regarding the delay in the criminal proceedings. Accordingly, plaintiff's request to strike the representations regarding that delay in the District Attorney's reply is denied as moot.
1
Case 1:12-cv-01742-KBF Document 23 Filed 05/17/12 Page 5 of 5
11/13/13 Print
about:blank 1/1
Subject : Fw: Activity in Case 1:13-cv-05519-AT Mirra v. Jordan Notice of Appearance
From: [email protected] ([email protected])
To: [email protected];
Date : Tuesday, November 12, 2013 11:43 AM
Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.From: [email protected]: Tuesday, November 12, 2013 9:21 AMTo: [email protected]: Activity in Case 1:13cv05519AT Mirra v. Jordan Notice of Appearance
This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended.***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (includingpro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER accessfees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is atranscript, the free copy and 30 page limit do not apply.U.S. District CourtSouthern District of New York
Notice of Electronic FilingThe following transaction was entered by Brenner, Allan on 11/12/2013 9:21 AM EST and filed on 11/12/2013
Case Name: Mirra v. JordanCase Number: 1:13-cv-05519-AT https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?415923
Filer: Gigi Jordan
Document Number: 4
Copy the URL address from the line below into the location bar of your Web browser to view the document: Document: https://ecf.nysd.uscourts.gov/doc1/127113257726?caseid=415923&de_seq_num=17&magic_num=61228046
Docket Text:NOTICE OF APPEARANCE by Allan Laurence Brenner on behalf of Gigi Jordan. (Brenner, Allan)1:13-cv-05519-AT Notice has been electronically mailed to:Allan Laurence Brenner [email protected]
Robert Lloyd Raskopf [email protected], [email protected], [email protected], [email protected]
1:13-cv-05519-AT Notice has been delivered by other means to:
The following document(s) are associated with this transaction:Document description: Main Document Original filename: n/aElectronic document Stamp: [STAMP dcecfStamp_ID=1008691343 [Date=11/12/2013] [FileNumber=12208369-0] [8d9d527a4af1f9691889a14c36872f7166d9c9110aafd987993ee51f3656ec39e465a6fc60186aadaeaed5e977e9d0ee4545a77b37a1cb2fa62af101385b1461]]