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Federal Judge Nicholas Garaufis warned Brooklyn defense attorney Howard Greenberg of a criminal contempt sanction for threatening to not participate in a trial in order to secure a reversal on appeal. Eagle photo by Rob Abruzzese.

In a decision last week, a Brooklyn federal judge called a lawyer to task for threatening to push a case to appeal over a disagreement with an evidence ruling. Judge Nicholas Garaufis found Howard Greenberg’s threats concerning and questioned the attorney’s understanding of zealous advocacy.

Following a ruling that Greenberg believed harmed his client’s defense, the attorney submitted a letter to Garaufis’ chambers, threatening to stop participating in the trial in order to get an appeal for ineffective assistance of counsel.

Greenberg’s client, Trevelle Merritt, was charged — along with two co-conspirators — on counts of racketeering and for the robbery and shooting death of Dasta James. When arrested, Merritt told police detectives that alleged co-conspirator Jamal Laurent was the shooter and that Merritt’s only role was to buy drugs from James; Laurent had the intention to rob the victim.

Laurent’s defense counsel requested that Merritt’s statements placing blame on his client be excluded as evidence or at the very least, Laurent’s actual name be removed and replaced with non-descript nouns (e.g., “the guy”). Greenberg disagreed with this suggestion, noting that the modification reduced the impact of Merritt’s statement, specifically naming Laurent as the shooter — a key factor in establishing Merritt’s defense.

Greenberg was so committed to his disagreement that he informed Garaufis that if the judge agreed to allow the modified statements, Greenberg “may have no choice” but to stop participating in the trial and “refuse to partake in jury selection, refuse to open [and] refuse to cross examine witnesses…”

Prosecutors responded that Greenberg “intentionally failing to represent his client and undermining the proceedings in this fashion would constitute serious violations of counsel’s ethical duties as an attorney practicing in this jurisdiction.” Garaufis questioned the constitutional harm to Merritt if Greenberg followed through on his threat.

“What concerns the court more…however, is counsel’s threat to intentionally deprive his client of his constitutional right to effective assistance of counsel,” the judge wrote.

Greenberg reasoned that by refusing to participate in the trial, in a protest against what he believed to be an erroneous decision, he was protecting his client’s interests. By essentially being an ineffective counsel, Greenberg’s letter explained, “that [Merritt’s] inevitable conviction would be reversed for ineffective assistance of counsel and the defendant Merritt will get a retrial wherein his ad nauseam statements to law enforcement would not be denuded of their meaning.”

The threat did little to convince Garaufis to reverse his ruling to allow modification of the statements. “[T]he court agrees with the government that there is little or no risk of prejudice to Merritt in admitting the…modified statements the court has already ordered are admissible in this case,” Garaufis stated again, approving the altered language.

Greenberg eventually backtracked, and according to court records, advised that he would not “shrink” from his responsibility to defend Merritt, and would in fact participate in the trial.  Garaufis took the Brooklyn lawyer’s declaration on face value but warned that should Greenberg’s “view of zealous advocacy require him to ignore this court’s order…and to deprive his client of Sixth Amendment right to effective counsel, [Greenberg] is hereby warned that he would place himself in jeopardy of violating the rules of professional conduct.” Greenberg could also face disciplinary proceedings for misconduct or a criminal contempt sanction.

According to the New York Law Journal, Greenberg never intended to follow through on his threat but was hoping to bring attention to the issue. “Suffice to say, it got everyone’s attention,” he said.

Michael Farkas, newly installed president of the Kings County Criminal Bar Association, said “You’re not going to find someone more passionate and more colorful” than Greenberg.

The parties are expected to return to court for jury selection on Jan. 27.

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