State Senator John DeFrancisco, R-Syracuse
State Senator John DeFrancisco, R-Syracuse ()

ALBANY – Plans to create a state commission that would have the power to discipline prosecutors for misconduct or incompetence have cleared initial review in the state Legislature.

The “Commission on Prosecutorial Conduct” in A8634/S6286 would mirror the state Commission on Judicial Conduct, which has investigated complaints against judges in New York since 1975.

Like the judicial conduct panel, the prosecutorial commission would be empowered to admonish, censure or remove prosecutors in the 62 county district attorneys’ offices in the state.

The Senate sponsor of the bill, Syracuse Republican John DeFrancisco, said he knows of no other state-based office or commission in the country that monitors the conduct of prosecutors. He said prosecutors have more on-the-job discretion than any other public servant and thus more capacity for misusing their authority.

“Right now, we learn of prosecutorial misconduct after several years, after someone has gone to jail and they are later released and the state pays a lot of money [in compensation to victims],” said DeFrancisco, who chairs the powerful Senate Finance Committee. “There really is no accountability for that prosecutor.”

The Assembly sponsor, Brooklyn Democrat N. Nick Perry, said the goal is to give citizens a place to take their grievances against prosecutors, not to inhibit the work of district attorney’s offices.

“Deterring prosecution is not our intent in any way, shape or form,” he said. “It is not intended to shackle prosecutors and their ability to do the duties of their office. But prosecutors are supposed to seek justice and the truth, and they are often measured more by the convictions that they achieve. There need to be come checks and balances.”

The measure has passed the judiciary committees in each chamber—18-1 by the Assembly Judiciary Committee on May 28 and 20-0 by the Senate Judiciary Committee, with three senators voting “yes” without recommendation to the full Senate on May 6.

The bill is now before the committee that DeFrancisco chairs and before the Assembly’s Codes Committee, but neither committee has scheduled a vote. The Legislature is set to finish its regular 2014 session at the end of next week.

The state District Attorneys Association is in “the final phase” of reviewing the bill and drafting a response outlining “several important practical and constitutional concerns with this legislation,” Shams Tarek, a spokesman for the group’s current president, Nassau County District Attorney Kathleen Rice, said in a statement Monday.

But Schenectady County District Attorney Robert Carney and Broome County District Attorney Gerald Mollen said Monday the bill has a host of serious flaws.

For instance, Carney said it wouldn’t apply solely to district attorneys and assistant district attorneys, but also to the state attorney general, prosecutors in that office and any other government attorney performing a prosecutorial function.

Only the governor is empowered by the state Constitution to remove a sitting district attorney and, similarly, only the Legislature is empowered to remove the attorney general, Carney said.

Another problem with the concept, Carney said, is that the powers of the state Court of Appeals may only be expanded through an act of the constitution. “It [the proposal] is in direct contravention of the constitution,” he said.

Mollen argued that district attorney is “probably the most supervised public office that exists in the country” among the public trial and appellate courts, the ethical canons guiding attorneys and—for the district attorneys themselves—the electorate every four years.

“It is difficult to attract young lawyers in the public service, but the Legislature seems in this proposal to be focused on making it even more difficult,” Mollen said. “It is dispiriting.”

The legislation would create an 11-member commission to oversee investigations by the panels staff. The chief judge would appoint three of the members, the governor and each of the majority leaders in the Legislature would appoint two, and each of the legislative minority leaders would appoint one. Of the six members appointed by legislative leaders, there must be an equal number of prosecutors and attorneys providing defense services.

The commission could issue subpoenas, grant immunity to witnesses and suspend prosecutors while investigators are ongoing.

Recommendations of punishment, consisting of admonishment, censure or removal, would go to the chief judge. Prosecutors could either accept the sanctions or challenge the commission’s findings before the state Court of Appeals.

The measure would go into effect Jan. 1, 2015.

Sponsors provided no estimate of how much the commission would cost. The Commission on Judicial Conduct has 45 full-time staffers and an annual budget of about $5.4 million.

DeFrancisco said a commission could be in the best interests of prosecutors themselves when it determines that criticism of their conduct is unjustified.

“[A complaint] may be something totally spurious, that someone is just knocking the fact that he got caught and got prosecuted,” he said. “But there’s no real forum to determine the truth of these allegations or determine whether the prosecution did anything wrong or not.”

Steven Downs, a former chief attorney to the Commission on Judicial Nomination, supports forming a prosecutorial conduct commission, as does a group that promotes defendants’ rights called “It Could Happen to You.” Downs is on the group’s advisory board.

Downs said it is “unworkable” for professionals to effectively discipline themselves. In the 100 years before the Commission on Judicial Conduct was created, only 23 judges were formally disciplined in New York by the ad hoc series of disciplinary bodies set up by the courts for that purpose.

In the 39 years that followed, 826 judges have been disciplined and 166 removed from office.

“It gives you a sense of the difficulty of a body trying to discipline their own professional people within a professional court system,” Downs said. “I think it is time now … because we believe this is a much fairer, more open way to bring responsibility to the system.”

Gov. Andrew Cuomo’s office did not respond calls seeking comment on the commission proposal, but the governor typically does not comment on legislation that does not originate from his office.