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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY -----------------------------------------------------------X PEOPLE OF THE STATE OF NEW YORK, - against – NOTICE OF MOTION GIGI JORDAN, Ind. No: 00621/10 Defendant. -----------------------------------------------------------X

PLEASE TAKE NOTICE, that upon the Affirmation of Allan L. Brenner, dated

December 5, 2013, the exhibits annexed hereto, and the proceedings had heretofore, the

accused herein GIGI JORDAN, by and through counsel, will move this Court, at a

Criminal Term, Part 82, 100 Centre Street, New York, New York, on the 6th day of

December, 2013, for an Order 1) disqualifying Assistant District Attorney Matthew

Bogdanos from participating in the prosecution of the above-captioned indictment or, in

the alternative, 2) setting the matter down for an evidentiary hearing on the issue of a

conflict of interest and/or the appearance of impropriety, and 3) for such other and further

relief as this Court may deem necessary and proper.

Dated: Long Beach, New York December 5, 2013 YOURS, ETC., Allan L. Brenner, Esq. 536 West Penn Street – 2nd floor Long Beach, New York 11561 (516) 897-6145

brennerlawlb@gmail.com

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Michael G. Dowd The Law Office of Michael G. Dowd 425 Park Avenue, 26th Floor New York, NY 10022 (212) 751-1640 Ronald L. Kuby Law Office of Ronald L. Kuby 119 West 23rd Street, Suite 900 New York, NY 10011 (212) 529-0223

Attorneys for Gigi Jordan

OF COUNSEL: Alan M. Dershowitz

TO: A.D.A. Matthew Bogdanos

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY -------------------------------------------------------------------------X PEOPLE OF THE STATE OF NEW YORK - against – ATTORNEY’S AFFIRMATION GIGI JORDAN, Defendant. -------------------------------------------------------------------------X ALLAN L. BRENNER, an attorney admitted to practice before the courts of the State of

New York, affirms the following under penalty of perjury:

1. I am one of the attorneys representing Ms. Jordan in the above-captioned

indictment and, as such, am fully familiar with the facts and circumstances underlying

this application.

2. I am submitting this Affirmation in support of the within motion for an

order: 1) disqualifying Assistant District Attorney Matthew Bogdanos from participating

in the prosecution of the above-captioned indictment or, in the alternative, 2) setting the

matter down for an evidentiary hearing on the issue of a conflict of interest and/or the

appearance of impropriety, and 3) for such other and further relief as this Court may

deem necessary and proper.

3. This motion is predicated upon a conflict of interest and/or appearance of

impropriety emanating from the interrelationship between Assistant District Attorney

Matthew Bogdanos, his attorney/wife Claudia Bogdanos, and Raymond A. Mirra, Jr., a

potential material witness at the trial of this indictment.

4. As this Court is undoubtedly aware, from the onset of the criminal

prosecution, Mirra has been at the fulcrum of dispute between the defense and

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prosecution. In numerous pleadings and extrinsic sources, the defense has accused Mirra

of financial criminal wrongdoing on a massive scale, and proffered as central to her

defense Ms. Jordan’s knowledge of same as motive for his threats against her son.

Conversely, the prosecution interposed itself as apologist in chief for Mirra, defending his

integrity and probity at every possible juncture. For example, in the prosecution

memorandum opposing Ms. Jordan’s application for bail, A.D.A. O’Connell wrote:

The defendant states that Mirra and his employees repeatedly forged the defendant’s signature on various real estate deeds, loan instruments, trust instruments, brokerage accounts, and wire transfers in order to benefit Mirra and Mirra-owned companies. (Motion at p. 25). The defendant has also provided a forensic audit along with three volumes of exhibits in an attempt to support these accusations. However, a careful examination of the relevant financial documents, coupled with the information provided from independent parties with first-hand knowledge of these transactions, demonstrates that these claims of financial fraud are nothing more than baseless allegations made for the sole purpose of diverting attention away from the defendant’s own criminal conduct.

(Corrected Copy of People’s Response to Defendant’s Memorandum of Law…, August

1, 2011, unpaginated, emphasis added). The prosecution predilection for absolving

Mirra, while discounting Ms. Jordan’s well-documented allegations of his wrongdoing,

has been palpably clear.

Many of the financial fraud allegations made by the defendant revolve around various Merrill Lynch accounts that the defendant and Mirra had opened jointly and separately over the years… Each of these accusations is disproven by a careful review of the documents and by information obtained from Merrill Lynch regarding these accounts. There is no indication that the defendant’s signature was forged on any of the documents needed to open these sub-accounts. There appears to be no fraud associated with these accounts. Similarly, all of the wire transfer activity associated with these accounts also appears to be legitimate. Since Mirra had joint ownership on many of the accounts these disputed wires originated from, he was authorized to make those transfers.

(Id., emphasis added).

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5. In deference to Mirra’s status both as a material witness and an antagonist

to Ms. Jordan, the prosecution team has willfully avoided and actively has sought to

suppress all evidence of his nefarious dealings. After the defense filed its extensive,

detailed allegations of financial fraud by Mirra against Ms. Jordan in its bail motion,

Gerard Monevsky of the Major Economic Crimes Bureau of the Manhattan District

Attorney’s Office called Ms. Jordan’s attorneys purporting an interest in investigating the

financial allegations against Mirra and requesting a meeting in furtherance of such

inquiry. The defense offered Ms. Jordan's assistance and all the principals agreed that a

final set of documents would be provided to Monevsky. These exhibits were transmitted

under cover of a conciliatory letter, annexed hereto as Exhibit A. But the defense never

heard back from A.D.A. Monevsky. All of his interest in a Mirra investigation, whether

real or feigned, dissipated in the face of the District Attorney’s apparent need to

countervail Mirra’s dubious status.

6. The prosecution’s interests in preserving Mirra’s false integrity traversed

courts, claims and jurisdictional boundaries. Indeed, in the pending Motion to Dismiss

for Outrageous Prosecutorial Misconduct, Ms. Jordan details the active efforts undertaken

by the District Attorney’s Office to derail any independent criminal investigation of

Mirra. In 2011, the defense approached the Office of the United States Attorney for the

Southern District to investigate the financial fraud perpetrated by Mirra against Ms.

Jordan. While it is true that the U.S. Attorney did not pursue an investigation, this was in

no small measure due to the prosecution’s express objections to the U.S. Attorney in

regard to a federal criminal probe of Mirra’s nefarious activities.

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7. During the course of the bail litigation, the prosecution again castigated

Ms. Jordan in defense of Mirra, further discounting Ms. Jordan’s allegations of his

financial fraud in light of her failure to file a civil suit against him:

Considering the defendant’s history, Ray Mirra and his business associates could have easily defeated any claims of fraud brought in a court of law – which the defendant never did bring…

(Corrected Copy of People’s Response to Defendant’s Memorandum of Law…, August

1, 2011, unpaginated). The prosecution assailed Ms. Jordan for not availing herself of the

forum of civil court, implying that the failure to so litigate underscored the illegitimacy of

her claims against Mirra. The absurdity of such illogic is matched only by the hypocrisy

of the ensuing actions on the part of the District Attorney’s Office. In April of 2012,

when Ms. Jordan launched the very civil suit the prosecution claimed could be “easily

defeated”, including claims of fraud, theft, conversion, forgery, conspiracy, breach of

fiduciary duty and other financial misconduct in the Southern District of New York, the

prosecution moved with astounding alacrity, bringing a motion to intervene and

successfully procuring a stay of Ms. Jordan’s civil matter. (See copy of the Order of

Hon. Katherine B. Forrest, annexed hereto as Exhibit B). Despite the lack of nexus

between the claims asserted in Ms. Jordan’s lawsuit and the prosecution’s theory of Ms.

Jordan’s criminal complicity, while mocking her for not suing Mirra, the Office of the

District Attorney now claimed that the lawsuit was prejudicial to the criminal discovery

process. Mirra was represented by the law firm of Debevoise & Plimpton, who

ultimately joined in the application to stay all discovery pending the resolution of the

instant criminal case. The intervenor application further evinces the prosecution’s

inappropriate desire to protect Mirra and to vouch for his dubious integrity:

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. . . during the criminal investigation relating to the murder of Ms. Jordan’s son Jude, the Office of the District Attorney conducted interviews with Mr. Mirra and his colleagues that related to, among other things, the business relationship between Ms. Jordan and Mr. Mirra. As the criminal case moves forward to trial, additional interviews of Mr. Mirra will take place in the anticipation of calling him as a witness during the criminal trial. The District Attorney believes there is no evidence to support the contention that either Ms. Jordan or her child were threatened with imminent deadly force by Mr. Mirra or any other person.

(Memorandum of Law in Support of Application to Intervene…, April 23, 2012, at 6, emphasis added).

8. Astoundingly, the prosecution continued to aggressively fend for Mirra as

an important “material witness” (id. at 7) in their April 23, 2012 motion to stay and in a

more recent motion to stay an action brought by Mirra against Ms. Jordan (see infra,

para. 8) despite a press release by New York A.G. Eric Schneiderman three weeks earlier

wherein the A.G. announced an investigation and several indictments regarding a $274

million black marketing drug diversion, money laundering, bribery, and Medicaid fraud

scheme related to the distribution of HIV-AIDS prescription drugs of “massive”

proportions. The investigation involved Mirra’s company Allion Healthcare Inc., and its

subsidiary “MOMS”, a national HIV-AIDS mail order pharmacy. (A.G. Schneiderman

Announces Arrests In $274 Million Black Market Prescription Drug Operation, April 4,

2012, available at: http://www.ag.ny.gov/press-release/ag-schneiderman-announces-

arrests-274-million-black-market-prescription-drug-operation). Just as the District

Attorney’s Office spurned Ms. Jordan’s allegations of Mirra’s financial fraud against her,

they now ignored strong corroboration for Ms. Jordan’s allegations of her knowledge of

Mirra’s healthcare fraud. The District Attorney’s Office was well aware of Ms. Jordan’s

claims, as she had detailed on the night of the tragedy that her knowledge of Mirra’s

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financial and health care fraud (particularly mentioning his nefarious activities in the area

of HIV-AID’s) was motive for Mirra’s threats.

9. In August of 2013, in open defiance of the spirit of the stay he had helped

to procure, Mirra filed a defamation lawsuit against Ms. Jordan in the Southern District of

New York. The claims raised in this action closely mirror those raised in Ms. Jordan’s

lawsuit stayed by the District Attorney’s office and Mirra. In his complaint, Mirra

alleged that in an interview with a New York Daily News reporter, Ms. Jordan called him

a thief, a looter, a criminal and an associate of organized crime who forged millions in

bank transfers and withdrawals. Virtually all of the challenged statements mirror the

substantive allegations that Ms. Jordan brought against Mirra in her forestalled lawsuit.

In this new civil matter, Mirra changed counsel from Debevoise & Plimpton to the law

firm of Quinn Emanuel Urquhart & Sullivan, LLP. On the initial filing sheet for this

lawsuit, the name of Claudia Bogdanos, an intellectual property specialist at Quinn

Emanuel, and the wife of Matthew Bogdanos, appeared as an identified recipient of all

filings in the case. Under the federal ECF system, Ms. Bogdanos was formally entered as

a person who would receive notice of every development in the case, and copies of all

documents filed during the pendency of the lawsuit. The defense inadvertently learned of

Ms. Bogdanos’ involvement for the first time on November 12, 2013, when Ms. Jordan’s

attorneys received the first ECF transmission in the case, annexed hereto as Exhibit C.1

1 The defense takes note that a successful motion to stay was brought by A.D.A. Bogdanos’ office immediately when Ms. Jordan sued Mirra, under the guise that deposition testimony and documents furnished by Mirra would unfairly exceed the breadth of discovery Ms. Jordan would otherwise be entitled to in the criminal case against her. But in the lawsuit filed by Mirra against Ms. Jordan, initiated by Mrs. Bogdanos’ firm, Mr. Bogdanos did not move to stay Mirra’s action for more than three months, even as it presented veritably the same issues objected to by Mr. Bogdanos’ office as the basis for the stay in Ms. Jordan’s action. Mr. Bogdanos only moved to stay Ms. Jordans action after receiving defense counsel’s letter advising of our intent to move for his disqualification.

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The following day, the second ECF transmission evinced that Mrs. Bogdanos had been

surreptitiously removed as a noticed attorney.

10. On November 15, 2013, we notified A.D.A. Bogdanos of our intention to

bring this motion. In response, we received a letter from A.D.A. Bogdanos, dated

November 18, 2013, together with an Affirmation by Robert Raskopf, the Quinn

Emanuel partner who is designated as lead counsel in the defamation action.

11. The perfunctory explanation tendered by Mr. Raskopf ultimately raises

more questions than it answers. It superficially purports to legitimize the presence of

Mrs. Bogdanos’ name on a civil suit involving a material witness in a criminal case being

prosecuted by her husband. It does not begin to explain the manner in which Mirra ended

up with a firm to which the wife of a senior prosecutor is of-counsel. The statistical

likelihood that Mirra accidentally chose this firm, and that the familial connection is

coincidental, is infinitesimally small.

12. In addition, whenever Mirra retained the services of Quinn Emanuel,

several facts had to be readily apparent to Mr. Raskopf or whoever initially interviewed

Mirra. Given that Mirra’s claims revolved around an interview given by Ms. Jordan

during the course of the criminal prosecution, the firm surely knew that Mirra was in the

eye of that particular storm. Indeed, it would have been irresponsible for the firm not to

have assessed that Mirra was considered a material witness by the prosecution team, and

Ms. Jordan’s principal antagonist as alleged by the defense. Frankly, any due diligence

of Mirra’s status would have revealed his controversial standing in the criminal case

being prosecuted by the bureau of which Mrs. Bogdanos’ husband is a senior member.

Nevertheless, the case was assigned to a partner whose “team” as per Mr. Raskopf,

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included Claudia Bogdanos.

13. Moreover, Mr. Raskopf and his “team” had to have known that Mirra was

already a defendant in a civil suit, in which Ms. Jordan had formally accused him of the

very criminal activity upon which many of the “defamatory” statements are predicated.

Again, even a cursory review of the docket would have revealed that Mr. Bogdanos’

office had intervened to forestall Ms. Jordan’s civil pursuit of Mirra, unequivocally

asserting his status as a “material witness” against Ms. Jordan, and seeking to insulate

him from the requirements of civil discovery. It is worrisome that having undoubtedly

learned of the dual dimensions of Mirra’s relationship with the District Attorney’s office,

Quinn Emanuel, as least as explained by Mr. Raskopf, assigned the matter to a team that

“by default” included the wife of a prominent prosecutor with that same office.

(Affirmation, Robert L. Raskopf, Nov. 17, 2013.)

14. Finally, with all due respect to Mr. Bogdanos, it is unclear from his letter

whether he is asserting that he had no knowledge that his wife’s firm (specifically a team

of which she is a routine member) was representing Mirra in a contentious lawsuit against

Ms. Jordan. It is difficult to imagine that the subject of Raymond Mirra and Gigi Jordan

has not been a topic between he and his wife in the last thirty days. It is unquestioned

however, that Mr. Bogdanos did not unilaterally reveal this conflict to the Court or

counsel; it was only after we notified him of our intention to bring this motion that he

came forward with any salient details.

15. Ultimately, we find that the Bogdanos letter and the Raskopf Affirmation

fall far short of resolving the factual questions surrounding either the actual conflict or

prejudicial appearance of impropriety at issue. Instead, we submit that the manner in

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which Mr. Raskopf figuratively tiptoes around the larger questions accentuates the merit

of our concerns. These issues can only be satisfactorily explored at an evidentiary

hearing, at which the principal figures (Mirra, Claudia Bogdanos and Matthew

Bogdanos) can be questioned under oath.

16. Courts have generally held that public prosecutors should be removed to

protect against "actual prejudice arising from a demonstrated conflict of interest or a

substantial risk of an abuse of confidence." People v. Jaquish, 853 N.Y.S.2d 485, 488

(Cty. Ct., Essex Cty. 2007); See generally People v. Zimmer, 51 N.Y.2d 390, 394 (1980).

While an appearance of impropriety, standing alone, will not usually justify

disqualification, "[t]here are recognizable instances where the appearance of impropriety

is so strong that the failure to [disqualify] would 'weaken the appearance of fairness.'"

People v. O'Connell, 8 Misc. 3d 1009(A) at *4, 801 N.Y.S.2d 780 at *4 (N.Y. Crim. Ct.

2005) quoting People v. Nuzzi, 128 Misc2d 502, 508 (S. Ct. N.Y. Cty. 1985). 2

17. There is an equally well-ensconced policy regarding the special function

of the prosecuting attorney. The courts have repeatedly emphasized that a prosecutor

wields power over an individual’s liberty and reputation to a degree that may exceed the

power vested in any other public official. People v. Zimmer, 51 N.Y.2d at 394. “It

would be simplistic therefore to think of the impact of a prosecutor’s conflict in terms of

explicit instances of abuse.” (Id.) As such, “the role of the public prosecutor is not

merely to convict but to foster the trust of the public in the criminal justice system. In

2 The rigid application of this standard may well be attenuated by the nature of the relief we are actually seeking. The general rubric of the relevant stare decisis covers cases in which the application is to disqualify an entire office, and appoint a special prosecutor in its place. Our application seeks only to disqualify A.D.A. Bogdanos, given his individual and unique nexus to the law firm which is promoting Mirra’s civil interests.

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fulfilling that function it is essential that a prosecutor avoid even the appearance of

impropriety (Code of Professional Responsibility EC 7-13; Canon 9…” People v.

Gentile, 127 A.D. 2d 686, 689 (2d Dept. 1987) quoting People v. Baker, 99 A.D. 2d 656

(4th Dept. 1984).

18. In this regard, the Court need look no further than the mandate contained

in the ABA Standards for Criminal Justice, Third Edition: Prosecution Function and

Defense Function, (1993). Section 3-1.3(a) explicitly states that the “prosecutor should

avoid a conflict of interest with respect to his or her official duties.”

19. The Commentary to Section 3-1.3 could not be more cogent in its

contemplation of the type of conflict at hand here:

A prosecutor's own interests, of whatever nature, should never be permitted to have an adverse effect on the professional performance of the prosecutor's official duties and obligations. For example, a prosecutor's past, present, or anticipated future personal, business, or employment relationship with an accused person, a potential witness, or another lawyer must not be permitted to affect the prosecutor's charging decisions or the prosecutor's handling of prosecutions or appeals.

(Emphasis added). In addition, Section 3-1.3 (h) expressly sets forth:

A prosecutor should not recommend the services of particular defense counsel to accused persons or witnesses unless requested by the accused person or witness to make such a recommendation, and should not make a referral that is likely to create a conflict of interest. Nor should a prosecutor comment upon the reputation or abilities of defense counsel to an accused person or witness who is seeking or may seek such counsel's services unless requested by such person.

The Commentary to this section specifically condemns the type of inter-familial

overlapping seemingly at work in the instant case. In discussing the circumstances under

which a prosecutor might help a witness such as Mirra procure legal counsel, the framers

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of the standard mandate that such a referral must “not otherwise raise some other specific

question of actual conflict of interest, e.g., it is a referral to the prosecutor's spouse or

law partner.” (Id. at Commentary, emphasis added).

20. The philosophy underlying this section speaks for itself. While at present

there is no evidence to suggest that Mr. Bogdanos or any other person in the New York

County District Attorney’s Office actually referred Mirra to Mrs. Bogdanos or her firm

for representation in his current defamation suit against Ms. Jordan, the inferential specter

of impropriety is, with all due deference, a “coincidence” of untoward appearance.

21. The guidelines of the National District Attorneys’ Association are no less

compelling in this regard. Declaring “[t]he prosecutor is an independent administrator of

justice,” these standards mandate that “[a] prosecutor should zealously protect the rights

of individuals, but without representing any individual as a client.” (National District

Attorneys Association, National Prosecution Standards, Third Edition, 1-1.1, 1-1.2).

22. These standards go beyond the general principles of ethical prosecution,

and delineate boundaries beyond which a prosecutor must not tread. In the subsection

specifically addressed to conflicts of interest, Standard 1-3.1 proscribes:

A prosecutor should not hold an interest or engage in activities, financial or otherwise, that conflict, have a significant potential to conflict, or are likely to create a reasonable appearance of conflict with the duties and responsibilities of the prosecutor’s office.

And, at Standard 1-3.3(d):

The prosecutor should excuse himself or herself from any investigation, prosecution, or other matter where personal interests of the prosecutor would cause a fair-minded, objective observer to conclude that the prosecutor’s neutrality, judgment, or ability to administer the law in an objective manner may be compromised.

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(Emphasis added). The very nature of the role which Mr. Bogdanos fills as a prosecutor

mandates his disqualification when it appears he is prosecuting a defendant who is party

to a lawsuit to which he has some demonstrable financial connection. As the courts have

repeatedly held, a prosecutor performs a “quasi-judicial role of ‘represent[ing] the public

in bringing those accused of crime to justice.”’ Matter of Haggerty v. Himelein, 89

N.Y.2d 431, 435 (1997), quoting Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 51

(1983); see also Matter of Forte v. Supreme Ct. of State of N.Y., 48 N.Y.2d 179, 185

(1979); Matter of Dondi v. Jones, 40 N.Y.2d 8, 13 (1976); Matter of Rush v. Mordue, 68

N.Y.2d 348, 353 n. 3 (1986). The Court of Appeals long ago affirmed that “[a]ny

relation between a judicial officer and a subject-matter, through which he [or she] may be

affected to his [or her] personal or pecuniary advantage or disadvantage, or required to

account for acts in respect thereto in a representative capacity, is a disqualifying interest.”

Matter of Hancock, 91 N.Y. 284, 288 (1883). Given that mandate, “public confidence in

the office . . . demands that there be no conflict of interest or appearance of a conflict.”

People v. Schrager, 74 Misc.2d, 833, 834 (Sup. Ct., Queens Cty. 1973).

23. The appearance of impropriety remains a salient factor in assessing

whether a prosecutor should be disqualified, and has retained its status across the national

judicial landscape. For instance, in Lovell v. Winchester, 941 S.W.2d 466 (Sup. Ct. Ky.

1997), the Kentucky Supreme Court acknowledged that “…the appearance of

impropriety is still a useful guide for ethical decisions.” (Id. at 468.) The application of

that standard “ . . . promotes the public’s confidence in the integrity of the legal

profession. For these reasons, courts still retain the appearance of impropriety standard

as an independent basis of assessment.” (Id. at 469.) See also, Gomez v. Superior Court,

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717 P.2d 902 (Ariz. 1986) (holding that the appearance of impropriety standard in the

Arizona Rules of Professional Conduct still remains a valid claim for purposes of

disqualification of an attorney); Stowell v. Bennett, 739 A.2d 1210, 1212 (Vt. 1999)

(“Although the new Rules of Professional Conduct do not expressly state that a lawyer

should avoid the appearance of impropriety, other courts have concluded that the

principle continued to apply ‘because its meaning pervades the Rules and embodies their

spirit.’”); Continental Resources, Inc. v. Schmalenberger, 656 N.W.2d 730, 738 (N.D.

2003) (citation omitted) (“Although the [new] Rules ‘do not use the language, the

‘appearance of impropriety’ standard has not been wholly abandoned in spirit.’”).

24. The applicability of the appearance of impropriety factor resonates most

strongly where the questioned conduct is by a public prosecutor, since it is the

embodiment the Rules refer to as ‘moral and ethical considerations’ that should guide

lawyers, who have ‘special responsibility for the quality of justice.’” First American

Carriers, Inc. v. Kroger Co., 787 S.W.2d 669, 672 (Ark. 1990). See also People v. Witty,

36 P.3d 69, 73 (Colo. App. 2000).

25. The salient facts in this case lead inexorably to the conclusion of both an

actual conflict of interest and the appearance of impropriety. It does not require either

conjecture or speculation to posit that Mrs. Bogdanos is a well-compensated attorney in

the employ of Quinn Emanuel. Nor is it beyond the pale of reason to aver that the firm

will be profitably remunerated for its efforts on Mirra’s behalf. As such, Mrs. Bogdanos

and her firm have a clear financial interest in prevailing against Ms. Jordan, an interest

logically imputable to Mr. Bogdanos by virtue of their joint household. This would seem

to be precisely the “pecuniary advantage” which the case law forbids. At the very least, it

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creates the appearance of a prejudicial triangular tension between Mr. Bogdanos’ ethical

obligations as a prosecutor and Mirra’s civil interests, with Mrs. Bogdanos’ remuneration

as a corrosive element. Mr. Bogdanos will be calling Mirra to testify against Ms. Jordan,

while Mirra’s pursuit of civil financial gain against Ms. Jordan is being shepherded by a

law firm of which Mr. Bogdanos’ wife is a prominent member and who appears directly

connected to Mirra’s case.

26. Moreover, the actual trial scenario by which this series of ill-timed events

plays itself out is disquieting. If, as they have repeatedly pronounced, the prosecution

calls Mirra as a witness on its direct case, cross-examination as to bias and hostility is not

only proper, but provable by extrinsic evidence. This would include, of course, the

pendency of the two federal civil lawsuits in which Ms. Jordan is his sole antagonist, in

which he has both a potential and actual pecuniary and penal interest. It is difficult to

imagine not being permitted to inquire as to his representation by Quinn Emanuel and the

degree to which the lead prosecutor’s wife is involved in shepherding his financial

interests. This appearance of systemic bias is so stark as to cloud the visage of Mr.

Bogdanos as the impartial prosecutor committed only to seeking truth and justice.

Instead, it does have the genuine appearance that one of the prosecution’s primary goals

is to protect both Mirra’s penal and pecuniary interests.

27. This is not an application we bring lightly or frivolously, nor do we seek

to engender further delay in a case whose pace has been curtailed by repeated instances

of prosecutorial recalcitrance and foot-dragging. Nevertheless, Ms. Jordan is entitled to

both justice and the appearance of justice, and what has transpired to date undermines

both equally. In People v. Dehle, 166 Cal. App. 4th 1380 (2008), the California Court of

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Appeals was eloquent in its assessment of the prosecutorial function, and its mandate

serves as a guidepost for the adjudication of this motion:

The importance, to the public as well as to individuals suspected or accused of crimes, that these discretionary functions be exercised `with the highest degree of integrity and impartiality, and with the appearance thereof' (People v Superior Court (Greer) [citation omitted]) cannot easily be overstated. The public prosecutor `"is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done . . .

The nature of the impartiality required of the public prosecutor follows from the prosecutor's role as representative of the People as a body, rather than as individuals. `The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of "The People" includes the defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but who give over to the prosecutor the authority to seek a just result in their name.' [citation omitted]

Thus the district attorney is expected to exercise his or her discretionary functions in the interests of the People at large, and not under the influence or control of an interested individual.

( Id. at 1387-88, emphasis added.)

28. The Appellate Division has held that “[w]here it appears that a substantial

issue of fact exists as to whether there is a conflict of interest, the appropriate procedure

may be to conduct an evidentiary hearing in advance of disposition of the motion to

disqualify.” Elghanayan v. Elghanayan, 107 A.D.2d 594, 595 (1st Dept. 1985); See also

Kaufman v. Kaufman, 63 A.D.2d 609 (1st Dept. 1978); Saftler v. Government Employees

Ins. Co., 95 A.D.2d 54, 57 (1st Dept. 1983). At the very minimum, the defense submits

that the substantial questions raised regarding an actual conflict of interest and a

prejudicial appearance of impropriety require the Court to conduct an evidentiary

hearing.

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WHEREFORE, based upon the foregoing, it is respectfully requested that the

Court grant this motion in its entirety, and for such other and further relief as the Court

may deem necessary and proper.

________________________ Allan L. Brenner

EXHIBIT A

Gerard Monevsky Major Economic Crimes Bureau District Attorney New York County 80 Centre Street NewYork,NY

BY HAND·

Re: Gigi Jordan

Dear Gerard:

June 30, 2010

Good to speak with you today. Enclosed please find the amended documents that were actually filed as part of the motion for bail. I have also enclosed a disc, which includes the bails memorandum and other exhibits, for your convenience.

Best.

Ron

EXHIBIT B

DOC N:-""I'rI:'TT""'"T"-;;;-=-::-:=-1

USDCSDNY

DOCUMENT ELECTRONICALLY FILEDUNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK -----------------------------------X

GIGI JORDAN,

Plaintiff, 12 Civ. 1742 (KBF)

-v- ORDER

RAYMOND A. MIRRA, JR.,

Defendant.

----------------------------------------x KATHERINE B. FORREST, District Judge:

Plaintiff Gigi Jordan filed this action against her

ex-husband, defendant Raymond A. Mirra, Jr., on March 9, 2012,

bringing claims for, inter alia, fraud and fraud in the

inducement, breaches of various contracts, breach of fiduciary

duty, and an accounting. (Dkt. No. I.' All of plaintiff's

claims are based upon numerous financial transactions in which

she and defendant allegedly jointly engaged during their

marriage as well as upon the alleged events subsequent to those

transactions that occurred during and after their divorce.

Plaintiff is also a defendant in a criminal proceeding

pending before the Honorable Charles H. Solomon, Jr. in the

Supreme Court of the State of New York, County of New York. In

that action, she is charged with Murder in the Second Degree

under New York Penal Law § 125.25(1), for the poisoning of her

eight-year old son.

Case 1:12-cv-01742-KBF Document 23 Filed 05/17/12 Page 1 of 5

On April 25, 2012, Cyrus A. Vance, Jr., District Attorney,

New York County, State of New York (the "District of Attorney"),

moved to intervene in this action pursuant to Rule 24 of the

Federal Rules of Civil Procedure for the limited purpose of

seeking a stay of discovery (and in fact, did seek such a stay) .

The District Attorney moves for a stay of discovery pending

disposition of the criminal matter against plaintiff Jordan.

(Dkt. No. 15.) Specifically, the District Attorney argues that

a stay of discovery is necessary to prevent plaintiff here from

making an end run around the criminal procedure rules related to

discovery. In her criminal proceedings, Jordan has advanced a

novel defense--i.e., filial patricide--which is premised, in

substantial part, upon the same financial transactions that are

at issue in the instant civil action before this Court.

It is well settled that intervention by the government is

permitted for the limited purpose of seeking a stay when there

is a related criminal proceeding involving overlapping questions

of law or fact. See, e.g., Morris v. Am. Federation of State,

Cnty. & Mun. Emps., No. 99 Civ. 5125, 2001 WL 123886, at *1

(S.D.N.Y. Feb. 9, 2011) (collecting cases) i Twenty First Century

Corp. v. LaBianca, 801 F.Supp. 1007, 1009 (E.D.N.Y. 1992).

Thus, the Court will allow the District Attorney to intervene

here and will consider the motion for a stay.

Case 1:12-cv-01742-KBF Document 23 Filed 05/17/12 Page 2 of 5

It is likewise settled that "the power to stay proceedings

is incidental to the power inherent in every court to control

the disposition of the causes on its docket with economy of time

and effort for itself, for counsel, and for litigants." Landis

v. N. Am. Co., 299 U.S. 248, 254 (1936) j accord Louis Vuitton

Malletier S.A. v. Ly USA, Inc., 676 F.3d 83, 96 (2d Cir. 2012)

(quoting Landis. The power to stay a parallel--or related-­

civil proceeding in favor of disposition of a criminal

proceeding falls well within that power--and is well-recognized

and accepted. Louis Vuitton, 676 F.3d at 97 104; see also

Volmar Distribs., Inc. v. New York Post Co., Inc., 152 F.R.D.

36, 39 (S.D.N.Y. 1993).

In considering the factors used to decide whether to grant

a stay, see Louis Vuitton, 636 F.3d at 99 & 100 n.14

(recognizing the five-factor test used by courts in this

District, but suggesting that courts should also consider the

amount of overlap between the civil and criminal actions as a

sixth factor), the Court also is informed by the delicate

concerns related to balancing the discovery interests between

parallel criminal and civil proceedings, Campbell v. Eastland,

307 F.2d 478 (5th 1962); accord Twenty First Century Corp., 801

F.Supp. at 1010. There are significant policy reasons

underlying the narrow scope of discovery in criminal

proceedings. Judge Wisdom in Campbell cautioned judges to "give

Case 1:12-cv-01742-KBF Document 23 Filed 05/17/12 Page 3 of 5

substantial weight to [the public interest in law enforcement]

in balancing th[ose] polic[ies] against the right of a civil

litigant to a reasonably prompt determination of his civil

claims or liabilities." 307 F.2d at 487.

In comparing the Complaint in this action to Jordan's

Memorandum of Law in Support of Bail (and the exhibits annexed

thereto) filed in the criminal proceeding, the Court finds that

her theory of her novel "filial patricide" defense includes

significant reliance upon the same financial transactions at

issue here see Dkt. Nos. 16-1 through 16-5). Without a stay,

plaintiff may be able "to gain evidence to which [she is] not

entitled under the governing criminal discovery rules" given

that certain critical "issues in the civil and criminal

proceedings overlap extensively." Twenty First Century Corp.,

801 F.Supp. at 1010.

Any purported prejudice to plaintiff in the face of such a

stay {see PI.'s Mem. in Opp'n to Application to Intervene and

For a Stay of Discovery (Dkt. No. 18) at 9-10) (of which the

Court finds there is little) is far outweighed by the detriment

to the public if the Court allowed an end run around the narrow

discovery rules of criminal procedure. Accordingly, it is

hereby

ORDERED that the instant action is STAYED pending further

order of the Court.

Case 1:12-cv-01742-KBF Document 23 Filed 05/17/12 Page 4 of 5

.IT IS FURTHER ORDERED that the District Attorney is

directed to provide status updates regarding the status and

progress of the criminal proceedings against Jordan in New York

State Court every 90 days. The updates should be submitted via

letter to the Court, with copies provided to the parties in this

action.

The Clerk of the Court is directed to place this action on

the suspense docket.

The Clerk of the Court is further directed to terminate the

motions at Docket Nos. 15 and 22.1

SO ORDERED:

Dated: New York, New York May.13::-, 2011

KATHERINE B. FORREST United States District Judge

The Court's decision did not rest in any way on anything represented by the District Attorney regarding the delay in the criminal proceedings. Accordingly, plaintiff's request to strike the representations regarding that delay in the District Attorney's reply is denied as moot.

1

Case 1:12-cv-01742-KBF Document 23 Filed 05/17/12 Page 5 of 5

EXHIBIT C

11/13/13 Print

about:blank 1/1

Subject : Fw: Activity in Case 1:13-cv-05519-AT Mirra v. Jordan Notice of Appearance

From: brenner.allan@yahoo.com (brenner.allan@yahoo.com)

To: eward@ecbalaw.com;

Date : Tuesday, November 12, 2013 11:43 AM

Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.From: NYSD_ECF_Pool@nysd.uscourts.govSent: Tuesday, November 12, 2013 9:21 AMTo: CourtMail@nysd.uscourts.govSubject: Activity in Case 1:13­cv­05519­AT Mirra v. Jordan Notice of Appearance

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended.***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (includingpro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER accessfees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is atranscript, the free copy and 30 page limit do not apply.U.S. District CourtSouthern District of New York

Notice of Electronic FilingThe following transaction was entered by Brenner, Allan on 11/12/2013 9:21 AM EST and filed on 11/12/2013

Case Name: Mirra v. JordanCase Number: 1:13-cv-05519-AT https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?415923

Filer: Gigi Jordan

Document Number: 4

Copy the URL address from the line below into the location bar of your Web browser to view the document: Document: https://ecf.nysd.uscourts.gov/doc1/127113257726?caseid=415923&de_seq_num=17&magic_num=61228046

Docket Text:NOTICE OF APPEARANCE by Allan Laurence Brenner on behalf of Gigi Jordan. (Brenner, Allan)1:13-cv-05519-AT Notice has been electronically mailed to:Allan Laurence Brenner brenner.allan@yahoo.com

Robert Lloyd Raskopf robertraskopf@quinnemanuel.com, claudiabogdanos@quinnemanuel.com, jessicarose@quinnemanuel.com, toddanten@quinnemanuel.com

1:13-cv-05519-AT Notice has been delivered by other means to:

The following document(s) are associated with this transaction:Document description: Main Document Original filename: n/aElectronic document Stamp: [STAMP dcecfStamp_ID=1008691343 [Date=11/12/2013] [FileNumber=12208369-0] [8d9d527a4af1f9691889a14c36872f7166d9c9110aafd987993ee51f3656ec39e465a6fc60186aadaeaed5e977e9d0ee4545a77b37a1cb2fa62af101385b1461]]