By Rob Abruzzese and David Brand
UPDATED: 7:24 p.m. Monday
Gov. Andrew Cuomo signed into law a bipartisan bill that will create a commission on prosecutorial misconduct on Monday night, just hours before the bill’s deadline. The bill had passed the state Assembly and Senate earlier this year but faced opposition from many district attorneys, including Queens DA Richard Brown.
On Thursday, the Wall Street Journal reported that Gov. Andrew Cuomo was expected to sign the bill into law, but the fate of the legislation remained unclear.
Without his signature, the bill would have been automatically vetoed. According to the Journal’s report, Cuomo supported the idea of the commission, but sought to negotiate with the legislature to make amendments to it. His signature was not a guarantee until Monday.
The legislation that passed at the end of the session will create an 11-person panel to oversee misconduct committed by prosecutors. That panel would consist of appointees made by the governor, legislators and the Chief Judge of the NYS Court of Appeals, a seat currently held by Hon. Janet DiFiore.
In June, Brown penned an op-ed criticizing the bill in the New York Law Journal.
“The legislature has elected to pass legislation that subjects prosecutors, alone among those who practice law, to a duplicative and intrusive process that is not only violative of the state constitution, but will surely cause delay to the progress of ongoing investigations and prosecutions, much to the detriment of all New Yorkers,” Brown said. “It is my hope that the governor, upon due consideration, exercises a veto of this ill-conceived proposal.”
On Aug. 13, a coalition of more than 100 organizations called It Could Happen to You rallied on the steps of City Hall to demand the bill’s passage.
In an open letter to the governor, It Could Happen to You said the commission would reflect the will of the state and further Cuomo’s stated goal of overhauling the criminal justice system.
“You have long spoken on the urgent need for comprehensive criminal justice reform in New York State,” the letter said. “Today, we urge you to seize this unique moment of broad bipartisan agreement and sign legislation to establish a New York State Commission on Prosecutorial Conduct.”
The issue has divided editorial boards in the state, with the New York Times coming out in support of the bill and the Daily News and Newsday opposing it.
“Mr. Cuomo has made criminal-justice reform a signature of his long career in public service. He knows that prosecutorial misconduct is a serious and stubborn problem that has largely defied solution,” the New York Times wrote.
Newsday’s editorial board call the bill “lousy legislation” and called for a veto without significant fixes like clearer guidelines for which complaints could be considered.
“If he can’t broker an agreement to fix its considerable flaws, Cuomo must veto the bill and try to enact better laws to fix unfairness in the criminal justice system and to hold prosecutors accountable for misdeeds,” Newsday wrote.
The District Attorneys Association of the State of New York issued a statement opposing the commission. Their statement says that claims of prosecutorial misconduct and error can already be pursued by existing methods, such as the Appellate Division Grievance Committee, which could disbar an attorney. The statement also said that willful misconduct is rare, and that the DAASNY and DA’s Offices have already taken numerous steps to ensure a fair justice system.
“New York’s elected District Attorneys are among the most ethically conscientious, the most regulated and the most scrutinized in the country,” the DAASNY statement said. “The goals of the proposed legislation are laudable. But they can be achieved by strengthening the disciplinary mechanisms already in place.”
DAASNY is preparing to challenge the commission in court.
Brooklyn District Attorney Eric Gonzalez has not spoken about the commission publicly. Gonzalez declined interview requests from the Brooklyn Eagle on the topic, and his spokesperson declined to comment on the topic on Thursday.
New York Attorney General Barbara Underwood has warned that the bill could be invalidated by the courts as it could potentially interfere with a prosecutor’s decision-making and violate the separations of powers.
But Steven Zeidman, director of the Criminal Defense Clinic at the CUNY School of Law in Long Island City said the commission is “necessary, critical and long overdue.” Zeidman’s clinic students represent clients in Queens County Criminal Court.
“Oversight is a good thing,” Zeidman said. “Those of us who have practiced in criminal courts know that misconduct has been ignored for too long. The public has right to demand accountability and transparency.”
Zeidman said the fact that the Republican-controlled Senate and Democratic-controlled Assembly both passed the bill “speaks volumes” about the bipartisan demand for accountability.
Michael Cibella, a defense attorney and president of the Kings County Criminal Bar Association, said that if the legislature wants to do something to help people caught up in the justice system, the easiest thing would be to commit to discovery reform.
“What the legislators can do right now to make prosecutions fairer would be to enact long overdue reform of New York’s current trial-by-ambush discovery procedures, where defendants still are not entitled to witnesses’ names and statements and other evidence against them until the jury has already been sworn in,” Cibella said. “We’re one of the few remaining states that have such arcane discovery procedures for a defendant whose liberty is at stake. They can pass discovery reform now by taking action they are clearly entitled to take and avoid the procedural battles with DA’s offices that are expected to come.”