A bill that would create a statewide commission to investigate the conduct of prosecutors received renewed support this week from a coalition of advocacy groups, city councils, a judge and others in a letter sent to Gov. Andrew Cuomo.
The letter targets Cuomo’s penchant for criminal justice reform by claiming such a commission would reduce the number of wrongful convictions in New York.
“You have long spoken on the urgent need for comprehensive criminal justice reform in New York state,” the letter said. “By making accountability paramount, the commission bill will end the status quo and ensure that justice will prevail in those instances where conduct deprives the accused of all that is guaranteed by our state and federal constitutions.”
Cuomo prides himself on closing more state prisons than any governor in state history. He also championed a proposal to raise the age of criminal responsibility in New York from 16 to 18, which is currently being phased in.
This year, Cuomo proposed eliminating cash bail for misdemeanor and nonviolent felony charges. He also supported discovery and speedy trial reform. None of those proposals made it through the Legislature. The prosecutorial commission bill was the only significant criminal justice reform approved by lawmakers this year.
More than 100 organizations, city councils and individuals signed on to this week’s letter supporting the bill, including some from the legal community. U.S. District Judge Frederic Block of the Eastern District of New York was included on the letter. Kian Khatibi, a defense attorney from New York City who was once exonerated himself, and defense attorney Kathy Manley of Albany also signed onto the letter.
The city councils of Albany, Hudson, Rochester, Syracuse and Yonkers have also approved resolutions supporting the bill, according to the letter. Sixteen individuals who were either exonerated or wrongfully prosecuted were also included.
Their position is rivaled by that of the District Attorneys Association of New York, which has said the bill directly targets its members. The association isn’t wrong—the bill was created to address claims of misconduct by the state’s prosecutors. The New York State Sheriffs Association also opposes the bill.
David Soares, the president of the DAASNY, penned his own letter to Cuomo this week urging a veto of the legislation. He has argued that the bill is both unnecessary and possibly unlawful.
The state’s district attorneys are not against stronger oversight and transparency of investigations into misconduct, Soares wrote, but a new commission is a step too far.
That’s not just their opinion, Soares said. It’s the same opinion given last year by the Justice Task Force, a group created by former Court of Appeals Chief Judge Jonathan Lippman to reduce wrongful convictions in New York. The task force said in a report on attorney responsibility in criminal cases that the state should strengthen the current grievance process rather than create a new body to address prosecutorial misconduct.
“The task force ultimately agreed with the latter view, determining that the existing Grievance Committees should take certain steps to ensure that they are equipped to handle criminal justice matters,” the report said.
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.
District attorneys have also claimed there are at least two constitutional conflicts in the bill. The first concerns three of the commission’s members. The bill requires the appointment of three judges to the commission by Court of Appeals Chief Judge Janet DiFiore. One of those judges has to be from the Appellate Division and the other two can be from another court outside the Court of Appeals.
Soares wrote in his letter that those appointments would be unconstitutional, citing a decision earlier this year from DiFiore. She declined to serve on a legislative pay raise commission because of a section in the state constitution that prohibits judges from serving in another public office.
“It would appear that this bill raises the identical constitutional question, which led the chief judge to announce she could not be a member of the pay raise commission,” Soares said.
The other constitutional question is about the power of the Court of Appeals itself. In multiple letters written to Cuomo in the past month, district attorneys have claimed the bill gives the court more power than is designated by the state constitution. The Court of Appeals is able to review decisions by the commission and either reject or accept them, according to the legislation.
“This is an attempt to expand the review power of the Court of Appeals in a fashion that the constitution does not authorize,” Staten Island District Attorney Mike McMahon wrote.
There is an opportunity for the bill to be changed to address those issues. If Cuomo doesn’t want to veto the bill, he could negotiate a three-way deal between the Senate and Assembly for an amendment.
The New York State Association of Criminal Defense Lawyers has said they’re open to changes as long as the intent of the legislation remains the same. They rallied with the bill’s sponsors in June before it passed. One of those sponsors, Republican Sen. John DeFrancisco of Syracuse, said he would work with the governor’s office if changes were needed.
Cuomo has until Aug. 20 to make a decision on the bill. He has not spoken publicly about it and his office said the legislation is still under review.