Lawyer cites high-risk pregnancy in trial delay request; federal judge questions her travel plans
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Criminal defense lawyer Deborah Misir is still waiting for an answer after citing her pregnancy in an Oct. 16 request for a delay in a federal corruption retrial scheduled for Jan. 5.
Federal prosecutors have opposed Misir’s request, and U.S. District Judge Kenneth Karas of Manhattan has yet to decide the issue, though he did question Misir’s travel plans and told her to stop calling his office in an Oct. 31 opinion. The New York Times and the New York Post have stories.
The pregnancy is Misir’s first, she told the New York Times, which reports her age as 42. (The Post says she is 43.) “As any doctor or woman will tell you, it’s very difficult to have a successful pregnancy at my age, and I have faced many medical issues in the past,” she told the Times.
Misir told Karas in her original Oct. 16 letter that she “physically cannot try a grueling federal white-collar case during my third trimester.” She represents Vincent Tabone, the former vice chairman of the Queens Republican Party, in a corruption case in which the co-defendant is Malcolm Smith, a Democratic state senator.
In the Oct. 31 order (PDF), Karas said Misir had sought to delay a November status conference because she was traveling to Washington, D.C., to speak to a meeting of defense lawyers. Karas rescheduled the status conference, but he didn’t appear pleased.
The request, Karas said, was made “despite the fact that in her request for an adjournment of her client’s trial she stated that she had been ordered ‘to restrict travel and activity during the remainder of [her] pregnancy.’ ”
Karas also said that Misir had called the court and spoken with a law clerk for about 10 minutes “regarding the scheduling of the status conference, the government’s superseding Indictment against Mr. Tabone, Ms. Misir’s belief that the superseding indictment was retaliatory, the fact that Ms. Misir was considering filing an ethics complaint against the government lawyers in this case, and Ms. Misir’s adjournment request.”
Karas said Misir and any others in her law firm should “cease any ex parte communications with chambers about this case or any pending motion or request” and she is “hereby barred from contacting chambers via telephone.”
Misir defended herself in a letter (PDF) filed with the court last Wednesday. She said her doctor had given her permission to travel to Washington, D.C., during her sixth month of pregnancy, provided that she rested after her conference appearance.
“Such limited travel, during the sixth month of pregnancy, is quite different than engaging in the long hours, high stress, and daily activity of a lengthy and intense federal criminal trial, including a four hour driving commute, for two months during the eighth and ninth months of my pregnancy,” she wrote. “That is when premature labor and other complications often occur, which could threaten the life of my baby. I could go into labor in the courtroom.”
She also said she contacted the court merely to discuss scheduling and procedural issues, and such communications have been routine practice during the court case. When she made the call, she learned that she had been given an incorrect date for arraignment on the superseding indictment. She also said she has asked the law clerk for direction on when a decision would be made on her request for a trial delay.
She did acknowledge expressing frustration to the law clerk, but said part of the reason was the way she had been treated by prosecutors, who “shouted at” and “insulted” her when she asked about their position on her delay request.
“That expression of personal frustration concerned only the lack of basic human courtesy and the extreme misconduct [by prosecutors] towards a pregnant woman at a medically delicate time,” Misir wrote, “and was in no way an ex parte communication on the ‘merits’ of this case.”
A spokesman for the U.S. Attorney’s office told the Times that Misir had given a “factually inaccurate” description of the prosecutors’ behavior. The prosecutors contend there is no need for a delay because another lawyer at Misir’s firm can serve as lead counsel.
