The trial judge rightfully admonished Manhattan Assistant District Attorney Elizabeth Loewy for her outrageous reference to one of Anthony Marshall’s defense attorneys in Loewy’s opening statement in the Marshall/Morrissey fraud trial. The court rejected the defense’s motion for a mistrial, however. John Eligon’s New York Times story here, describing the second day of trial, covers the court’s ruling in the very last paragraph. No word from Eligon on whether Judge Bartley instructed the jury not to consider the prosecutor’s comments, or informed them that the comments were improper. This kind of conduct, striking over the defendant’s shoulders at his attorney, is something that even baby prosecutors are routinely taught not to do. That it would be attempted during a trial of this magnitude is stunning.
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The New York Times reports here on opening statements in the Anthony Marshall/Francis X. Morrissey criminal trial in Manhattan. Marshall is the son of the late socialite Brooke Astor. He and Morrissey are charged in state court with looting Astor’s estate. Astonishingly, Manhattan Assistant District Attorney Elizabeth Loewy referenced one of Marshall’s criminal trial attorneys, Kenneth E. Warner, in her opening statement. Loewy mentioned Warner’s alleged role in some of the transactions involved in the criminal case. This is outrageous prosecutorial conduct and should result in a mistrial. It is hornbook law that a prosecutor should not strike at the client by attacking his attorney or bringing the attorney into the underlying case as a witness or virtual witness. Loewy has justified her conduct by pointing out that she tried to have Warner recused. This is beside the point. Loewy lost that motion and she was under a duty to avoid any references to Warner by name.