Probe of Group Home Abuse Overstepped, NY High Court Finds

Rampant abuse by state employees in group homes led to the creation of unelected special prosecutors, but they were granted too much power, New York’s Court of Appeals ruled.

ALBANY, N.Y. (CN) — Special prosecutors set up to prosecute the sexual abuse of people with special needs unconstitutionally usurped the jurisdiction of local district attorneys, New York’s high court ruled on Tuesday.

As opposed to district attorneys who are duly elected, the underlying statute authorized the state governor to appoint the special prosecutors.

“We recognize that this well-intentioned legislation was aimed at protecting a particularly vulnerable class of victims,” Judge John Garcia wrote for the unanimous Court of Appeals. “But we cannot rewrite a statute in order to save it.”

Garcia said there is no statutory precedent to support the Justice Center for the Protection of People with Special Needs and its special prosecutors, established in 2013 to curb rampant abuse in group homes. “All told, there is simply no analogy — in precedent or in statute — to Executive Law § 552’s creation of a state-wide prosecutor, appointed by the Governor, with concurrent prosecutorial authority over a set of enumerated crimes,” the 18-page ruling states.

Further, Garcia added, the statute failed to specifically state that local district attorneys had the “ultimate responsibility for the prosecution” in those abuse cases.

Careful not to throw out the baby with the bathwater, Garcia said “excising the offending provisions” of the statute — granting the special prosecutor discretionary authority to bring criminal cases — could leave the rest of the statute intact and allow the prosecutor to cooperate with and assist district attorneys.

Attorney Michael Pollak, who represented one of three state employees indicted by the Justice Center, said the decision properly limits the center’s ability to bring such cases. “That’s the way it should be,” he said in an interview. “These are all appointed lawyers who are not elected.”

While Pollak noted the legislation is unconstitutional as written, he said it could be a relatively easy fix to properly vest the Justice Center prosecutors with the ability to issue indictments. “Nobody has argued there is no need for this kind of law enforcement,” he said, adding that a district attorney could deputize a Justice Center lawyer to bring such cases. “The DA just needs to maintain ultimate authority.”

The Justice Center and its special prosecutor were set up in 2013 after a horrific series in The New York Times that found only 5% of the abuse and neglect accusations described were ever forwarded to law enforcement. Reporters found that many state employees who had physically or sexually abused residents never faced any real discipline, largely allowed to keep their jobs or face transfer to another group home.

Apart from getting many of the same powers as district attorneys, the special prosecutor could appear before grand juries and obtain search warrants only after consulting with or notifying local DAs. Ultimately, the Justice Center obtained indictments against state workers Marina Viviani, Justin Hope and Nicole Hodgdon for alleged abuse.

All three claimed their prosecutions were illegal, however, since the special prosecutors wrested prosecutorial authority from an elected official. The trial courts tossed the three indictments, and the state Appellate Division affirmed the dismissals.

Justice Center spokeswoman Christine Buttigieg told Courthouse News that, since the underlying case began, the agency has been following the “delegation model,” which is referenced in the court’s decision. Much of the center’s work consists mostly administrative penalties against state employees, with prosecution being a smaller piece.

“It’s clear from today’s ruling that the Court of Appeals recognized the critical role the Justice Center plays in the protection of vulnerable people,” she said in a statement. “We are reviewing the decision to determine how best to continue that work.”

During oral arguments last month, the Justice Center argued both the governor and state legislature had the power to create the special prosecutors. Still, several judges expressed concerns about a slippery slope, wherein the governor could set up special prosecutors for any number of niche crimes.

“Under your approach, there is no end to this,” said Judge Jenny Rivera during the arguments. “At what point is it to much? Two other categories of crimes? Three? Four? Where do we draw that line?”

In her concurrent opinion, Rivera ignored such concerns, noting the Justice Center was meant to supplement rather than supplant district attorneys and stating statute could be remedied if local district attorneys consented to the delegation of prosecutorial power to the Justice Center attorneys.

“If a District Attorney may already appoint the Special Prosecutor in certain circumstances, then it is inconceivable that the legislature — intent on ensuring prosecution of crimes against persons with special needs — would have written Executive Law § 522 to supersede the District Attorneys authority,” Rivera wrote in a footnote.

Rivera added that the statute imposed significant limitations on the special prosecutor and said legislatures could delegate prosecutorial functions “for a variety of purposes” as long as the special prosecutor remained responsible for conducting the related criminal prosecutions.

Chief Judge Janet DiFiore did not take part in the decision.

Follow @NickRummell

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