The State Assembly gave final passage to a bill on Monday that would create a commission to investigate prosecutorial misconduct.
The bill is now headed to the governor’s desk, having passed the State Senate last week. The measure passed the lower house on an 86-35 vote, with opposition coming from some Republicans.
The commission would be authorized to investigate and review complaints against prosecutors specifically. The panel would have subpoena power and the ability to request documents and information in any case of misconduct. Its decisions would be made available to the public and compiled in an annual report to the legislature, governor and Court of Appeals.
The District Attorneys Association of the State of New York lobbied against the bill, calling it unnecessary and possibly unconstitutional.
“This is something that we need to do in this state and I stand here today on behalf of the wrongfully convicted,” Assemblyman Nick Perry said during the vote.
Some local DAs also took their shots at the proposal.
“This legislation is a mistake and quite likely unconstitutional,” Staten Island District Attorney Michael McMahon said in a statement. “It adds an unwieldy and unfunded layer of bureaucracy when defendants already enjoy an unparalleled right to appeal.”
Opponents of the measure have argued that a system already exists to discipline prosecutors in New York state. Each Appellate Division has a grievance committee that reviews complaints against attorneys in New York state and has the power to censure, suspend, or disbar them. Those committees are composed of both attorneys and nonattorneys and appointed by the court.
The proposed commission would look more like the State Commission on Judicial Conduct. Like that body, the proposed prosecutorial misconduct commission’s decisions would be made public. The prosecutor under scrutiny would be allowed to ask the Court of Appeals to review the commission’s findings within 30 days of a decision, though any determination by the court would be final.
DAASNY has argued that the proposed commission could be unconstitutional, pointing out that the New York Constitution provides that any district attorney accused of misconduct “shall be removed from office by the governor” after an opportunity to be heard. It argued that the commission would usurp the constitution by granting the panel its own power to remove a district attorney from office, the group says.
Changing the process would require an amendment to the state constitution, they say, which would be on the ballot for voters next November at the earliest if lawmakers passed it this year. Constitutional amendments have to be approved by two concurrent legislatures to make it on the ballot. The new legislature starts its term in January.
Barring any legal challenge, the commission would be created in January if the bill is approved by Gov. Andrew Cuomo.
Three of its members would be appointed by Chief Judge Janet DiFiore. Cuomo, Assembly Speaker Carl Heastie and Senate Majority Leader John Flanagan would each appoint two members of the body. Assembly Minority Leader Brian Kolb and Senate Minority Leader Andrea Stewart-Cousins would each get one appointment.
One of the governor’s appointees would have to be a public defender, and the other would have to be a prosecutor, according to the bill. One of DiFiore’s appointees would have to be a justice of the Appellate Division. The other two would have to be judges of any court other than the Appellate Division or Court of Appeals. The six remaining appointees would have to be equally composed of prosecutors and defense attorneys.
The commission would appoint its own chair. The power, in that case, will be with elected Democrats, who will appoint at least five of the commission’s members versus three from Republicans. If Democrats win back the State Senate in November, they will have six appointees versus two from Republicans. DiFiore, a Democrat appointed by Cuomo, will choose the remainder.
The goal of the commission, according to supporters, would be to avoid wrongful convictions and save the state money. They believe if defendants had more power to report complaints against prosecutors, they could be exonerated or avoid conviction altogether. That would save the state money on retrial costs, they say, though the commission is expected to cost $5.5 million when fully operational.
DAASNY president Scott McNamara, who is the Oneida County district attorney, disagreed with that point in a letter to Assembly members Tuesday, saying the commission “could saddle taxpayers with the costly burden of defending assistant district attorneys against frivolous allegations before two, overlapping tribunals.”
The legislation does nothing to empower the state’s grievance committees to improve their investigations of misconduct, McNamara said. The bill’s supporters, including its sponsor in the State Senate, Sen. John DeFrancisco, R-Syracuse, have argued that the committees haven’t done enough to investigate misconduct when presented with it.
The bill has the backing of the New York State Association of Criminal Defense Lawyers, which partnered with Perry and DeFrancisco last week to push for it. It passed the Senate the next day, a surprise turnaround for lawmakers who have stalled the bill in committee since January. The group responded to the bill’s passage Tuesday.
“We thank Senator John DeFrancisco and Assemblyman Nick Perry, our champions in their respective houses, for sponsoring the bill creating the Commission on Prosecutorial Conduct,” said Robert Wells, president of NYSACDL. “This commission will bring accountability to and disciplinary consequences for unethical behavior of prosecutors in New York state—a necessary part of ensuring a fair criminal justice system for all New Yorkers. We urge Governor Andrew Cuomo to take the important next step of signing this bill.”
There is always the chance Cuomo could veto the commission. He has issued veto messages in the past for bills that allocate money from the state outside of the state budget process. The governor’s press office did not immediately respond to an inquiry about the bill’s status.