NY Prosecutors Sue to Stop Misconduct Watchdog

(CN) – New York prosecutors sued Governor Andrew Cuomo and others Wednesday to block a new law that made the Empire State the first in the country to put its district attorneys under the scrutiny of an oversight panel.

New York Governor Andrew Cuomo speaks during a May 10, 2018, news conference. (AP Photo/Frank Franklin II, File)

“It is a bedrock principle of our democracy that no statute, no matter how noble its ostensible purpose, may violate that constitutional structure,” attorneys for Albany County District Attorney David Soares wrote in a 27-page complaint.

Queens County Assistant District Attorney Robert Masters and the District Attorneys Association of the State of New York joined Soares in opposing the Commission on Prosecutorial Conduct, a watchdog whose formation Cuomo ordered in August.

Set to take effect in January, the independent 11-member commission would investigate allegations of prosecutorial misconduct.

The bill authorizing it was introduced by Senator John A. DeFrancisco, a Republican and former defense attorney who initially threw his hat in the governor’s race but suspended that campaign in April, a week before announcing he would also not seek re-election in the state Senate.

Co-sponsors of the bill include Republicans Fred Akshar and Phil Boyle and Democrats Jamaal T. Bailey and Leroy Comrie.

Bill S2412D, which passed easily through the Legislature in June, “authorize[s] the commission to receive, initiate, investigate and hear complaints with respect to the conduct, qualifications, fitness to perform, or performance of official duties of any prosecutor, and may determine that a prosecutor be admonished, censured or removed from office.”

The commission’s 11 members will include prosecutors, defense attorneys and judges. Though all three branches of the state government would handpick those members, the state elections in November will determine which party has the upper hand in choosing appointees.

When Governor Cuomo signed the bill into law on Aug. 21, somewhat reluctantly, he included the requirement that the next legislative session will take up amendments to it.

The commission’s findings will be sent to the governor and available to the public, a detail over which Cuomo has expressed concern, saying it could open the door for people to meddle with criminal cases.

In its present form, the commission’s opponents contend, the body is “riddled with fatal constitutional defects.”

“If the law is allowed to stand, the independence of district attorneys will be threatened, the role of the judiciary impermissibly altered, the performance of law enforcement duties chilled, the due process and equal protection rights of prosecutors violated, the entitlement of voters to a district attorney responsive to their needs undermined, and the integrity of our constitutional system compromised,” their attorney Jim Walden, from the firm Walden Macht & Haran, wrote.

Listing New York State, Cuomo, state legislative leaders and the commission as defendants, the prosecutors seek a ruling declaring the commission unconstitutional and blocking its formation.

New York Attorney General Barbara Underwood’s office did not immediately respond to a request for comment Wednesday.

Cuomo also worried about the constitutionality of the bill and whether it violates the separation of powers.

Himself a former New York City prosecutor, the Democratic Cuomo faced calls to sign the bill from his opponent in last month’s gubernatorial primaries, former actress Cynthia Nixon. The activist best known for her 12-year role in the “Sex and the City” television and film series accused Cuomo of dragging his feet for fear of taking on the New York establishment.

“The current justice system is rigged against people of color and the poor every step of the way,” Nixon said. “New York must lead the way in creating a new system, one that brings much-needed fairness and balance between prosecutors and defendants.”

Human rights groups like Human Rights Watch, The Innocence Project and the Legal Aid Society also encouraged passage of DeFrancisco’s bill.

In a June open letter to Cuomo, Human Rights Watch cited a review of studies of prosecutorial misconduct nationwide, which found that only 63 prosecutors “received any public discipline” with regard to more than 3,500 indiscretions over a 50-year period.

“New York’s court run disciplinary system operates in secret and does not appear to be any kind of deterrent to prosecutors who bend and break rules to obtain convictions,” the letter says.

The Innocence Project, a nonprofit that uses DNA evidence to exonerate people of wrongful convictions, also praised Cuomo for signing the bill.

A frequent example that the commission’s supporters have cited is the 16-year incarceration of Jabbar Collins for a murder in Brooklyn.

As noted by U.S. District Judge Frederic Block of the Eastern District of New York in a March 2018 opinion piece for The Marshall Project, Collins “was only freed a few years ago when it was revealed at a post-conviction hearing that the main witness at his trial had told the prosecutor that he was pressured by police to lie about Collins’ involvement in the murder.”

The watchdog commission created by DeFrancisco’s bill is set to “mirror” the state’s decades-old Commission on Judicial Conduct, composed of 11 volunteer members who review complaints of misconduct by judges.

District Attorneys Association of the State of New York has tapped the brakes on criminal justice reform efforts before it ultimately endorsed them. The association initially resisted Rockefeller drug laws before supporting alternatives to prison.

District attorneys are rarely prosecuted for misconduct. They’re elected by ballot in New York State and hold a powerful position with the ability to choose which crimes to prosecute. The late former Brooklyn DA Ken Thompson, for example, did not prosecute low-level marijuana offenses.

In Staten Island, meanwhile, the 11th Congressional District is led by Daniel Donovan, the former DA who declined to prosecute NYPD officer Dan Pantaleo for the fatal chokehold that killed Eric Garner.

Public backlash over Garner’s death led Cuomo in 2015 to empower then-Attorney General Eric Schneiderman as special prosecutor in certain police-involved shootings. Cuomo described it as a way to remove the “perceived conflict” when district attorneys investigate the police officers with whom they work closely.

Prosecutorial discretion also became a point of contention last year for Manhattan DA Cyrus Vance after it came to light that he quashed the criminal investigations of power players whose attorneys had donated to his election campaign.

Donald Trump Jr. and Ivanka Trump faced possible prosecution for a 2012 real estate scandal, and Vance also dropped a 2015 sex-crimes case against now-disgraced former film executive Harvey Weinstein.

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