Gov. Andrew Cuomo has signed and approved changes to a bill that will create a commission to investigate complaints of misconduct by county prosecutors who have already promised a constitutional challenge to the legislation.
Cuomo’s approval was contingent on changes to the legislation, which lawmakers agreed to pass at their next earliest opportunity. They are scheduled to return to Albany in January.
“Our criminal justice system must fairly convict the guilty and exonerate the innocent,” Cuomo said in a statement. “When any prosecutor consciously disregards that fundamental duty, communities suffer and loses faith in the system, and they must have a forum to be heard and seek justice.
“This first-in-the-nation Commission will serve to give New Yorkers comfort that there is a system of checks and balances in the criminal justice system, and to root out any potential abuses of power to ensure that our justice system is just for all New Yorkers,” he continued.
The bill will form an 11-member panel to receive and investigate complaints of misconduct by the district attorneys and their assistants. The commission’s findings will be made available to the public and referred to the governor, who has the power to remove a prosecutor from office.
The legislation had an unsure future last week after General Counsel Leslie Dubeck of Attorney General Barbara Underwood’s office said in a memo that it was not likely to survive judicial review as written.
Some of those concerns are expected be addressed by a forthcoming amendment to the legislation. The commission will not begin its work until the amendment has been approved. Details on what will be included in that amendment were not immediately available.
The legislation has long been opposed by the District Attorneys Association of the State of New York, which began preparing litigation last week. A complaint is expected to be filed in the coming weeks, if not days.
The commission is scheduled to be formed in January, according to the legislation, but prosecutors may also be able to prevent that through a preliminary injunction. Albany County David Soares, who is president of DAASNY, also asked the state’s prosecutors this week to decline any appointment to the commission. That would leave it essentially inoperable, since four of its members are required by statute to be prosecutors.
DAASNY has advocated for strengthening the state’s current disciplinary process in place of the commission, which they have called both unnecessary and unconstitutional.
Each Appellate Division has a grievance committee that reviews complaints against attorneys in New York 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 banned former St. Lawrence County District Attorney Mary Rain from practicing law for two years over misconduct while she was in office, for example.
Supporters of the bill have claimed the grievance committees do not address prosecutorial misconduct in an effective and transparent manner. Complaints submitted to the committees are often not addressed in a timely manner, they said, and their decisions are not easily available to the public.
The commission, conversely, will be required to make its decisions and any supporting documents available to the public on the internet. The state’s Commission on Judicial Conduct, which the prosecutorial commission is mirrored after, also makes those decisions and documents easily accessible.
The bill does not lay out a timeline for when appointments to the commission should be decided. Those will likely come in January when officials elected in November are sworn into office.
It’s unclear whether the commission’s membership will change with the chapter amendment.
According to the original legislation passed in June, three of its members will be appointed by Chief Judge Janet DiFiore. The governor, the speaker of the Assembly, and the majority leader of the state Senate will each appoint two members of the body. The minority leaders of both chambers will each get one appointment.
One of the governor’s appointees has to be a public defender, and the other has to be a prosecutor, according to the bill. One of DiFiore’s appointees has to be a justice of the Appellate Division. The other two have to be judges of any court other than the Appellate Division or Court of Appeals. The six remaining appointees have to be equally composed of prosecutors and defense attorneys.
The commission will 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 vs. two from Republicans. DiFiore, a Democrat appointed by Cuomo, will choose the remainder.
The commission was expected to cost $5.5 million when fully operational, according to the original bill.