By David Brand
Gov. Andrew Cuomo’s eleventh hour decision to sign a law creating the nation’s first prosecutorial misconduct commission has received mixed responses from the Queens legal community and borough lawmakers.
The law, which passed both chambers of the state legislature earlier this year, will create an 11-person panel to oversee misconduct committed by prosecutors. That panel would consist of appointees made by the governor, legislature and the Chief Judge of the State Court of Appeals, a seat currently held by Hon. Janet DiFiore.
The commission would investigate allegations of misconduct and publish its findings. Cuomo would have the power to remove a district attorney from office.
“Our criminal justice system must fairly convict the guilty and exonerate the innocent,” Cuomo said. “When any prosecutor consciously disregards that fundamental duty, communities suffer and lose faith in the system, and they must have a forum to be heard and seek justice.”
Advocates for criminal justice reform, including attorneys from Legal Aid and Council Member Rory Lancman, chair of the Committee on the Justice System, hailed the new law as a necessary measure to ensure accountability.
“Prosecutors are public officials with responsibilities and obligations that go beyond those of lawyers in private practice representing private litigants, and it is important that there is an oversight body capable of ensuring that those obligations and responsibilities are met when people’s lives and liberties are at stake,” said Lancman, who is reportedly considering a run for Queens D.A. in 2019. “This is a landmark moment for New York’s justice system.”
Of the 250 exonerations in New York since 1989, about one-third involved instances of prosecutorial misconduct such as withholding or tampering with evidence and coercing witnesses, according to a national registry of exonerations maintained by the University of Michigan, Michigan State University and the University of California, Irvine. The data set was cited by The New York Times in an editorial supporting the commission.
“Last year, New York had the fourth-highest number of exonerations in the country — many that involved prosecutorial misconduct — yet there have been no viable way to hold prosecutors accountable who broke the law or acted in bad faith. However, that changes today,” said Tina Luongo, the attorney-in-charge of the criminal defense practice at Legal Aid. “This is a crucial step toward avoiding wrongful incarceration and a way to help prevent future misconduct.”
But Queens District Attorney Richard Brown said the law is “patently unconstitutional, ill-advised and plagued by many practical flaws.”
“I am deeply disappointed that the Governor has chosen to sign into law legislation creating a
Commission on Prosecutorial Conduct,” Brown said. “Accordingly, I will join with my colleagues in the District Attorney’s Association of New York to vigorously support coming litigation made necessary to rectify this grave error.”
For months, Brown and prosecutors across the state have assailed the watchdog commission and have threatened to challenge its constitutionality.
Albany County District Attorney David Soares, the president of the District Attorneys Association of the State of New York, sent a letter to DAASNY members on Aug. 14 stating that the organization will launch a constitutional challenge to the bill.
“I trust that we are united in the view that if any elected district attorney is asked to serve on this commission that he or she will defer until the constitutionality of the bill is determined,” Soares said in the letter reported by the New York Law Journal,.
Soares said that serving on the commission could violate the oaths of office that prosecutors took as elected officials.
“I have assembled a small team of prosecutors to begin preparation for litigation,” Soares said in the letter. “The team had a meeting yesterday to discuss legal steps that we can pursue to begin drafting a motion for declaratory judgment and for injunctive relief.”
Counsel for state Attorney General Barbara Underwood also advised Cuomo that the commission could be deemed unconstitutional because it may violate the separation of powers and give too much authority to the judiciary branch.
On Monday night, Cuomo said he and leaders in the state legislature agreed to approve changes to the law designed to protect against a constitutional challenge, including removing the requirement that current judges participate.