An example of malicious prosecution is the Cusick v. Gualandi et al. case. Malicious prosecution is filing a lawsuit without probable cause, with fabricated evidence or plain malice. The following information was taken from a Memorandum Opinion and Order from a United States District Judge. On Jan. 17, 2006, Cusick found his wife unresponsive in their home, and she was pronounced dead. Cusick’s wife had a history of drug use. Ottawa police found no evidence suggesting that Cusick murdered his wife.

Further investigations showed no evidence of Cusick being responsible for his wife’s death, so the LaSalle County State’s Attorney did not pursue charges against Cusick. Some members of the police department and relatives of the decedent thought that Cusick had murdered his wife. During an election, the then-current state’s attorney was ousted by an election opponent who promised to pursue charges against Cusick as an election issue. The new state’s attorney acted on her promise to pursue Cusick. A grand jury indicted Cusick based on questionable evidence, and a trial was held. (It should be noted that during a grand jury hearing, the defense is not allowed to present opposing evidence.) The trial concluded on Dec. 13, 2016, and Cusick was acquitted.

On Oct. 8, 2020, Cusick brought five claims against the defendants:  the state’s attorney, the Ottawa Police Department, the City of Ottawa and LaSalle County. The defendants were able to get some of the claims dismissed, but the claim of malicious prosecution survived, meaning that this case would go to trial and that malicious prosecution would be a central theme at trial. There was evidence that the police had fabricated evidence harmful to Cusick. The election of the state’s attorney after promising to charge Cusick suggests malice. The parties decided to settle the case. According to Shaw News, the City of Ottawa settled for $30,000, LaSalle County settled for $30,000, and the remaining defendants settled for around $200,000. 

It does not take a genius to conclude that the current litigation aimed at the former president is a form of malicious prosecution. As an election issue, the current New York State Attorney General campaigned that she would pursue litigation against the former president. This is certainly a form of malice. There was no evidence of harm caused by the former president to any entity in the transactions cited, and every one of the parties made money, suggesting a lack of probable cause. The New York Rules of Professional Conduct (for lawyers) outlines ethical responsibilities, many of which deal with fairness and an absence of bias. Any attorney running for a prosecutorial office who states that “if elected, I will prosecute so and so” is biased and is acting maliciously toward that individual and is guilty of malicious prosecution if the threat is carried out. This is often called creative prosecution, which has no place in the legal profession. Why the New York Bar Association has not stepped in to sanction the New York Attorney General for prosecuting the former president is beyond me. Apparently, the New York Rules of Professional Conduct (and ethics) are out the window. It gives the appearance that ethics in the New York legal community is a value set subject to change without notice.