The clock is ticking for Gov. Andrew Cuomo to sign or veto a bill that would create a commission to investigate claims of misconduct by district attorneys.
Cuomo has until Aug. 20 to make a decision after the bill was sent to his desk Wednesday night by the Legislature.
John DeFrancisco, a Republican from Syracuse, said in a statement that he’s willing to work with Cuomo if the bill has to be tweaked at the beginning of next session. It’s a rare moment for DeFrancisco, who has been a stalwart opponent of Cuomo in recent years.
“While the governor has signaled that he may have issues with this legislation that overwhelmingly passed both houses, I am willing to work with his office to make reasonable changes that won’t defeat the intent and purpose of the legislation, in order to ensure that it becomes law,” DeFrancisco said.
The bill is supported by the New York State Association of Criminal Defense Lawyers. Amy Marion, a legislative co-chair of that group, said they have no sense of what the governor will do with the bill, and that they are open to changes approved by DeFrancisco.
It’s unclear what issues Cuomo may have with the bill. He has not taken a public position on the legislation since it passed the Senate and Assembly during the close of this year’s session in June. His office said the bill is still under review.
If Cuomo has specific issues with the bill, he has two choices. He could either veto it, or suggest a chapter amendment. That’s when Cuomo approves the bill with a promise from the Legislature to amend it at the start of next year’s session. A spokeswoman for DeFrancisco said Thursday there are currently no discussions of a chapter amendment between their office and Cuomo’s.
The bill was a last-minute bipartisan push by DeFrancisco and Assemblyman Nick Perry, a Democrat from Brooklyn who also sponsored the bill. It had few opponents in the Legislature when it passed.
The legislation would create a special commission to receive and investigate complaints against prosecutors accused of misconduct. The commission would then, according to its supporters, refer its findings to the governor, who has the power to remove a prosecutor from office. Its decisions would be made public.
Prosecutors, meanwhile, have been urging Cuomo to reject the bill, calling it superfluous and possibly unconstitutional. David Soares, the Albany County district attorney and president of the District Attorneys Association of the State of New York, said last month the bill was “the most misguided piece of legislation that we have ever seen proposed by the Legislature.”
At least four district attorneys have personally sent letters to Cuomo asking him to veto the bill, and two others are said to be drafting letters for the governor. DAASNY has already passed a resolution opposing the commission.
Soares sent a new letter to Cuomo on Thursday, urging a veto of the bill. The letter was also sent to Attorney General Barbara Underwood, Senate Majority Leader John Flanagan, and Assembly Speaker Carl Heastie. His letter repeated the main points prosecutors have made against the legislation, of which there are many.
Soares said in the letter that a report from the Justice Task Force last year recommended strengthening the current grievance process instead of creating a new commission to address prosecutorial misconduct. The task force was created by former Chief Judge of the Court of Appeals Jonathan Lippman to reduce wrongful convictions.
DAASNY has argued that there’s already a process to discipline attorneys in New York, including prosecutors. 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.
One of those committees recently barred former St. Lawrence County District Attorney Mary Rain from practicing law for two years over her conduct while in office.
The bill’s supporters claim those committees have not addressed prosecutorial misconduct to the extent the commission would. It would function like the state’s Commission on Judicial Conduct, which investigates cases of misconduct by the state’s judges and posts its decisions online for the public.
“Prosecutors have substantial power, and defendants, who go through the criminal justice system, and have been wronged by a prosecutor, must have an independent body to review the alleged conduct,” DeFrancisco said. “This impartial venue for complaints will create checks and balances in the judicial system just as the Commission on Judicial Conduct has provided oversight for judges for over 40 years.”
There’s also a constitutional question the bill does not address, prosecutors said. According to the bill, a prosecutor may ask the Court of Appeals to review a decision by the commission. That’s not a function provided to the court in state law, Monroe County District Attorney Sandra Doorley wrote in a letter to Cuomo last month.
“The jurisdiction of the Court of Appeals is derived from, and specifically limited by the state constitution,” Doorley wrote. “By authorizing the Court of Appeals to review the conclusions of this proposed commission, the legislation expands the court’s jurisdiction beyond what is specifically authorized in the constitution.”
Soares also wrote that the commission could be deemed unconstitutional because it requires active judges to sit on the commission. That could violate a part of the state’s constitution “which prohibits a judge from serving in any other public office,” Soares wrote.
The intention of the bill, according to its supporters, is two-fold. They want to give defendants a way to report misconduct by a prosecutor. That could help them avoid a wrongful conviction, which could in turn save the state time and money.
The commission isn’t free, though. The bill’s sponsors estimate it will cost $5.5 million when it’s scheduled to become operational in January. That could be a dealbreaker for Cuomo, who has rejected bills in the past that allocated significant sums of money outside the state budget process.