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A pair of identical bills currently winding their way through the New York House and Senate would establish a state commission on prosecutor conduct to review complaints about prosecutors and enforce discipline. The bill to create the commission, which would be the first of its kind in the country, was introduced with bipartisan support by Senator John DeFrancisco (R-Syracuse) and Assemblyman Nick Perry (D-Brooklyn).

At a press conference on May 12, both lawmakers spoke of the length of time it is taking to uncover wrongful convictions on account of prosecutorial misconduct in New York and suggested the proposed commission would allow claims of misconduct to be adjudicated more quickly.

Though the bill has already been criticized by prosecutors as a retaliation against their efforts to investigate state lawmakers for public corruption and the violation of campaign finance laws, these allegations seem petty in light of recent revelations about New York’s terrible track record of misconduct in certain counties and the New York State Bar’s inability to address it.


No Prevention: The Bronx Example

In explaining the need for his bill, Sen. DeFrancisco cited the recent high-profile expulsion of a junior Bronx prosecutor from a local courtroom after the prosecutor was found to have suppressed exonerating evidence in a rape case. Bronx Criminal Court Judge John Wilson told Bronx assistant district attorney Megan Teesdale in April that her actions were “an utter and complete disgrace — not just for you, but for your office in general,” before banishing her from his courtroom for good.

But that won’t stop her from suppressing exculpatory evidence in other cases, Sen. DeFrancisco warned, explaining the need for an independent body to follow-up on and punish such wayward practices.


A Model of Accountability Already Exists

Of the four spokesmen who explained and endorsed the bill at the May 12 press conference it was Steve Downs, former chief attorney with the Commission on Judicial Conduct, who was most forthright about the lackluster state of accountability in New York. Explaining that prior to the creation of the judicial commission, discipline for judges and prosecutors alike was handled by the courts – with poor results.

Downs poked the elephant in the room when he pointed out that state bars, internal office regulations and courts are in an unhelpful position to ensure justice for prosecutors who commit misconduct:

“Experience has taught us over the years in many different states that professional bodies trying to discipline themselves is an unworkable system. There are simply too many collegial and power arrangements within the system to allow for a free and open examination of the facts and imposition of discipline…

Within the system there’s an enormous amount of pressure by very powerful, influential people to make exceptions… to allow something to happen. There has to be some body, something that will credibly push back against that and tell prosecutors: if you do that, there will be someone to enforce the rules. If you do that, there will be consequences.”

Downs compared figures of disciplined judges prior to the creation of the judicial commission with figures of those disciplined after its creation to demonstrate the need for independent oversight.

“For 100 years prior to 1975, there was only 23 judges that were discplined. In the 39 years since 1975, 826 judges have been disciplined and 166 removed from office by the Court of Appeals. So it gives you a sense of the difficulty of a body trying to discipline their own professional people within a professional court system.”


The Benefits of a New System

Downs said based on the experience of the judicial commission, a similarly-modeled prosecutor commission (as the bill provides for) would offer the following benefits:

  • a unified approach to prosectorial discipline
  • a staff dedicated to looking at prosecutorial conduct issues, which builds expertise into the system
  • the development of law, since the commission would work directly with Court of Appeals to implement discipline
  • a transparent regulatory system; records and information about investigations and discipline would be made available to the public
  • a model of fairness: by this, Downs meant that the commission would model fairness to prosecutors by treating them in a balanced and measured way

What’s more, Downs says, the commission would give prosecutors who want to do the right thing the cover to do so in a workplace environment that is often dominated by powerful personalities and a culture of conviction.


Prosecutors Protest

On Monday, Onondaga County District Attorney Bill Fitzpatrick accused the lawmakers of introducing the bill in retaliation against the Moreland Commission: a panel co-chaired by Fitzpatrick that recently subpoenaed legislators as part of its investigation into public corruption.

But Sen. DeFrancisco and Assemblyman Perry denied the accusation,  saying they have been working on the bill for two years. They have been taking time to ensure it is properly structured, Perry said at the news conference.

Fitzpatrick’s accusation seems tone deaf given the terrible track record of prosecutorial misconduct uncovered in certain counties of New York in recent years. We’ve covered Brooklyn’s problems in detail; other counties such as Essex, Erie and Queens have their own share of problems. And a 2013 piece by Joaquin Sapien and Sergio Hernandez at ProPublica left no question that the state’s current system is of accountability is inadequate.

Nationally, there is undisputed evidence that state bars are routinely failing to identify and punish misconduct. A 2012 Yale Law Journal article found that across all 50 states, state bars were doing a poor job of policing prosecutors through weak professional responsibility measures.

While the bill sponsors sought to reassure prosecutors on Monday that their proposed commission was designed to create a fairer system for everyone (in that it would play in important role in exonerating wrongly accused prosecutors as much as enforcing discipline), it’s clear that the major need in New York is an accountability system with teeth. To the extent that this commission can provide that, it sounds like a promising idea – and one that the rest of the country should watch closely.


Practical Matters: The Bill

S6286-2013: Establishes the commission on prosecutorial conduct.

This bill would create the commission on prosecutorial conduct, to serve as a disciplinary entity designated to review complaints of prosecutorial misconduct in New York State, to enforce the obligation of prosecutors to observe acceptable standards of conduct, and to establish reasonable accountability for the conduct of prosecutors during the performance of their functions, powers and duties as prosecutors. The commission on prosecutorial conduct is modeled after legislation that established the state commission on judicial conduct.

In terms of discipline, the commission could recommend as little as a sanction and as much as removal from office, but final decisions would ultimately be made by the Court of Appeals.

The bill has already passed unanimously through the Senate Judiciary Committee. The two sponsors hope to get it on the floor of their respective houses before the end of the 3rd week in June when the legislative session comes to a close.


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