CANTON — Former St. Lawrence County District Attorney Mary E. Rain has had her law license suspended for two years by a state appellate court.
In the decision rendered by the state Supreme Court Appellate Division Third Judicial Department Thursday, Ms. Rain’s “actions constituted fraudulent conduct which was prejudicial to the administration of justice and adversely reflected on her fitness as a lawyer.”
Among the various reasons given for the suspension, the court pointed to false statements made by Ms. Rain during the murder trial of Oral “Nick” Hillary at which time she didn’t turn over evidence favorable to Mr. Hillary.
Prior to the court’s decision, Ms. Rain, in a letter stamped “received” on June 7 to St. Lawrence County Surrogate Court Judge John F. Richey, with the county’s indigent defense and district attorney’s offices copied in, wrote that she was shutting down her Ogdensburg-based law practice for reasons related to her family.
Ms. Rain did not return a request for comment.
An appointed referee upheld the charge alleging that Ms. Rain had “attempted to mislead County Court with respect to her knowledge of the existence of exculpatory material and, in doing so, violated Rules of Professional Conduct in that she made a false statement of fact or law to a tribunal. Further, “the Referee determined that such conduct was dishonest, prejudicial to the administration of justice and reflected adversely on her fitness as a lawyer.”
The court appointed a referee to hear and report on a petition of charges marked returnable March 2017, which alleged two charges of professional misconduct against Ms. Rain constituting five distinct violations of the Rules of Professional Conduct.
A second petition was filed with the court in July 2017, alleging four charges containing nine separate specifications of professional misconduct.
Together, the two petitions alleged 29 distinct violations of the Rules of Professional Conduct, the court said.
A hearing was held in January and March 2018 and in the matter of Mr. Hillary’s trial in the 2011 murder of 12-year-old Garrett J. Phillips, it was determined Ms. Rain had consciously disregarded the attorney-client relationship of an incarcerated witness, convicted rapist Gregory E. Brown Jr., by directing investigators to disregard Brown’s expressed wishes, stated through his attorney, Efstathia S. Kyriakopoulos, that the attorney be present during an interview that took place at the facility in which he was incarcerated.
A hearing was held in the middle of Mr. Hillary’s trial as a result of the allegations. Thursday’s decision also found that Ms. Rain had made misleading statements in connection with the allegations against her, and that “such conduct involved dishonesty, was prejudicial to the administration of justice and reflected adversely on her fitness as a lawyer.”
The court also ruled that Ms. Rain violated her obligations as a prosecutor by consciously disregarding her obligation to disclose a statement made by Brown during his interview with investigators at her order.
“Such conduct was found by the Referee to constitute the improper suppression of evidence that respondent had a legal obligation to produce, and violated her duty as a prosecutor in criminal litigation to make timely disclosure to counsel for the defendant ... of the existence of evidence or information known to the prosecutor ... that tends to negate the guilt of the accused, mitigate the degree of the offense or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal,” the court ruled, citing case law.
Moreover, the appointed referee determined that Ms. Rain used subpoenas as an investigative tool, violating “well-established principles that limit the subpoena process to proceedings before a grand jury or court.”
She served grand jury subpoenas with no intention of presenting the information obtained to an actual grand jury, the court ruled, instead providing the information garnered from the subpoenas to police to aid in their investigation.
Based on the March 2017 petition charge of professional misconduct, the court cited its Nov. 25, 2015 ruling that numerous prejudicial remarks were made by Ms. Rain during her closing arguments in the rape trial of Patrick R. Wright.
Those remarks denied Wright his fundamental right to a fair trial, Justice Christine M. Clark wrote in her memorandum and order.
“Specifically, this Court had determined four separate improper remarks that ‘exceeded the bounds of fair advocacy’ such that ‘no curative instruction could have alleviated the prejudice created,’” she wrote.
In the July 2017 petition, the referee determined that Ms. Rain consciously disregarded the court’s order authorizing a law intern in her office by failing to seek redesignation of the intern following the intern’s failure of the bar examination and by allowing the intern to improperly conduct a felony jury trial and related suppression hearing.
On April 8, 2016, St. Lawrence County Court Judge Jerome J. Richards told Ms. Rain, her then-law intern Jonathan S. Jirik and ADA Frank R. Cositore that they should have been “embarrassed and ashamed ... because you have perpetrated a fraud on the court,” for Mr. Jirik’s prosecuting Girard R. Gillett, 43, of 211 King St., Rensselaer Falls, without a license.
Judge Richards dismissed the Gillett case and said he would write to Justice Peters to put Ms. Rain on notice of his understanding of the facts in the case. He then recused himself from all matters handled by Ms. Rain’s office as a result of the conflict.
The referee determined that Ms. Rain “violated the Rules of Professional Conduct via her conscious disregard of this Court’s order, her failure to adequately supervise the intern and by aiding the intern in the unauthorized practice of law.”
In response to the referee’s report, Ms. Rain “does not oppose petitioner’s motion and has submitted an affidavit in mitigation,” the court wrote.
“Upon consideration of the facts, circumstances and record before us, we find that the allegations in the petition of charges sustained by the Referee were established by a fair preponderance of the evidence; accordingly, we confirm the Referee’s report in its entirety,” the court ruled.
The court wrote that it considered Ms. Rain’s affidavit “wherein she largely contends that much of her misconduct was the result of her mere negligence as opposed to intentional conduct.”
“However, it is evident from the record that throughout much of the events underlying these proceedings, respondent acted with either the intent or knowledge of the effect her actions would have,” the decision read.
The court also found that Ms. Rain, having been practicing law since 1996, was a “seasoned prosecutor” at the time of her misconduct, “with extensive experience, and the majority of her violations evidence a pattern of disregard for defendants’ rights.
“Further, respondent’s lack of candor during petitioner’s investigation into her actions further demonstrates her inability to take responsibility for her actions,” the court wrote.
In addition to the misconduct ruled on in the decision, the court noted Ms. Rain’s disciplinary history, which includes three prior admonitions and a letter of caution.
“We take this opportunity to note that respondent’s career demonstrates a long history of public service that is commendable,” the decision read. “However, prosecutors carry an obligation to hold themselves to the highest standards based upon their role in our system of justice, and respondent’s severe and persistent misconduct while serving in that role damages the reputation and public confidence placed on those in her former role.”
State District Attorneys Association President Scott D. McNamara, who is also the Oneida County District Attorney, issued a statement championing the appellate court’s decision.
“As one of the parties that filed a grievance against Mary Rain, we fully agree with the court’s holding that her actions damage the reputation and public confidence in prosecutors,” Mr. McNamara said. “We feel that the suspension of her license to practice law is appropriate and furthermore it sends the right message to the public that prosecutorial misconduct is fully reviewed and punished when proven to have occurred.”
To read the full decision, visit http://decisions.courts.state.ny.us/ad3/Decisions/2018/D-78-18%20Matter%20of%20Rain.pdf.