Citing a defense attorney's "stunning" admission that he had a
clandestine ex parte meeting with the law clerk for a judge presiding
over his client's manslaughter trial that he didn't disclose to co-counsel, a
state Supreme Court justice in Albany has ordered a new trial for the
defendant.
Albany Supreme Court Justice Roger McDonough ruled that defendant
Gregory Thayer, who is serving a 25-year prison sentence for killing his
best friend, would receive a new trial based on ineffective assistance of
counsel from Andrew Kossover, a local counsel for Thayer's mostly New
York City-based defense team.
Thayer was charged with killing Bruce Swierc in 2022 in Ulster County
during a drug-fueled reunion.
At one point in the months preceding Thayer's trial, Kossover met
secretly with law clerk Wiliam Ghee to discuss the defense's theory that
Thayer was not guilty due to mental defect, which would absolve Thayer
of criminal responsibility for killing at the defendant's home in Kingston,
New York. The basis of the theory was that Thayer believed Swierc was
an intruder, despite the fact that the two friends had been together for
hours prior to the shooting.
According to court documents, Ghee advised Kossover that Ulster
County Supreme Court Justice Bryan Rounds, who presided over
Thayer's bench trial and sentencing, wasn't looking favorably on the
mental defect theory and suggested that the defense team might
consider the theory that Thayer suffered from extreme emotional
disturbance when he shot Swierc dead-which could prove a first-degree
manslaughter charge, but which falls below the standard for a murder
charge, which the Ulster County District Attorney's Office sought at trial.
Kossover conveyed the law clerk's concerns about the defense strategy
to his co-counsel, veteran New York City criminal defense attorney
Robert Gottlieb, but did not disclose where he obtained this information,
according to court papers.
McDonough wrote that Kossover intended this as a "'compromise
solution' to his perceived ethical predicament."
"This reticence and silence clearly constituted an inexcusable breach of
Kossover's duty of loyalty to his client, the defendant," McDonough wrote.
"The sole explanation advanced by Kossover for this unconscionable
dereliction of duty was his desire to maintain his good relationship with
the trial judge and law clerk."
McDonough also said that Thayer "is not the only victim of Kossover's
unethical actions."
"Indeed, the People, the defendant's own trial counsel team, and the
decedent's family are, through no fault of their own, forced to go through
another trial untainted by Kossover's malfeasance," the judge said.
Kossover declined to comment on McDonough's ruling.
"We are grateful for the judge's very thoughtful and reasoned decision,
overturning the conviction," Gottlieb said in an interview with the Law
Journal. "The opinion reflects the critical principles of justice that are
protected in a judicial ruling such as this."
The Ulster County DA's office has maintained that it was prejudiced in the
case. by the ex parte meeting
"I accept and respect the judge's decision for a retrial in the case. It is
unfair that the prosecution, in the name of the people of the state of New
York and the people of Ulster County, have to suffer the consequences
of unethical conduct behind the prosecution's back," Ulster County DA
Emanuel Nneji said in an interview with the Law Journal.
Nneji said it is unclear from McDonough's decision whether Thayer will
be retried on a manslaughter charge or if he will be tried for murder. If
Thayer is retried for manslaughter, Nneji will appeal the matter.