Rikers Island Correctional Facility Rikers Island Correctional Facility (Photo: Kevin P. Coughlin/Bloomberg News)

New York’s elected district attorneys are at war with the governor and legislature over a new, first-in-the-nation, State Commission on Prosecutorial Conduct, N.Y. Jud. § Ch. 30, art. 15-a, charged with reviewing claims that those charged with enforcing the law in a court of law might, themselves, be acting unlawfully. The District Attorneys Association of New York has sued to declare the Commission unconstitutional. See Complaint for Soares v. New York, No. 906409-18 (Sup. Ct. Albany Cty. Oct. 17, 2018).

The Commission will hopefully survive judicial scrutiny to provide a much-needed forum for much-needed oversight of the awesome and virtually unchecked powers of our prosecutors to charge and incarcerate New Yorkers, but it will still be crippled by the inadequacy of New York’s underlying disciplinary code for prosecutors. A forum for grievances is only as useful as are the rules and norms it enforces, and those governing the ethical obligations of our district attorneys are seriously wanting.

To understand the scope of the challenge requires understanding the truly breathtaking scope of prosecutorial power. The D.A. alone decides who to charge and for what (see, e.g., Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988) (“It is well established in New York that the district attorney, and the district attorney alone, should decide when and in what manner to prosecute a suspected offender.”); see also Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”)); what plea deal to offer, if any (see Missouri v. Frye, 566 U.S. 134, 148 (2012) (“[A] defendant has no right to be offered a plea …”) (citing to Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (“[T]here is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.”)); which information to share with the grand jury, and which to withhold (see People v. Di Falco, 377 N.E.2d 732, 735 (N.Y. 1978) (“[The prosecutor] has complete discretion to determine whether available evidence should be submitted to a Grand Jury … . He, in effect, determines what witnesses to present to that body and who should be excluded.”) (internal citations omitted)); who gets to participate in a substance abuse or mental illness diversion program instead of going to jail; and, for all practical purposes, who sits on Rikers Island unable to afford their bail while they await trial (see Human Rights Watch, The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City 41 (2010) (finding that a District Attorney’s request for bail is the “strongest predictor of judicial decisions on both release on recognizance and bail amount, outweighing the [Criminal Justice Agency’s risk assessment] recommendation, the nature of the offense, and the defendant’s criminal history”); see also Insha Rahman, Vera Inst. of Justice, Against the Odds: Experimenting with Alternative Forms of Bail in New York City’s Criminal Courts 6 (September 2017) (“The prosecution’s bail request acts as an anchor, increasing the likelihood that the court will set bail”)); and when, if ever, the defense gets access to information critical to the case (see N.Y.S. Bar Ass’n, Task Force on Criminal Discovery Final Report For the Consideration of the House of Delegates 2 (2014) (“Currently people accused of crimes in this State are denied access to critical materials that are necessary for them to make informed decisions about their cases, to undertake proper investigations, to intelligently assess plea offers, to secure and use exculpatory evidence, and to adequately prepare for trial before the last minute.”).

The limits on these powers are narrowed by court decisions only at the margins, if at all, and the Supreme Court has decided that the consequences for failing to abide by even these limited restraints won’t fall on the prosecutors themselves, as it does on other law enforcement officials and agencies. In Connick v. Thompson, 563 U.S. 51 (2011), where an individual who had been exonerated sought to hold liable the District Attorney’s office that had convicted him for its failure to adequately train prosecutors about their discovery disclosure obligations, the court found that, absent a significant “pattern of violations” similar in kind, the “regime of legal training and professional responsibility” prosecutors operate within obviated a need for a district attorney’s office to provide specific training to prevent constitutional violations. Id. at 66-67. Even where a pattern is provable, it is easier to hold a department or municipality accountable for the deprivation of a constitutional right based on “action pursuant to official municipal policy” (Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978)), than a prosecutor, who generally has absolute immunity for actions taken during trial, even where “immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty” (Imbler v. Pachtman, 424 U.S. 409, 427 (1976)).

The most a prosecutor risks by misconduct is the need to retry the case. See, e.g., United States v. Rivas, 377 F.3d 195, 199 (2d Cir. 2004) (where the court “note[s] with some dismay the prosecutor’s failure during the trial to correct” testimony known to be materially false and “not just a minor discrepancy” and orders a new trial with no mention of sanctions or discipline for an individual prosecutor); People v. Di Raffaele, 433 N.E.2d 513, 515 (N.Y. 1982) (“The rationale and objective of appellate reversal of a trial conviction because of misconduct on the part of a prosecutor is not to discipline or punish the prosecutor.”). If you’re a D.A. committed to winning convictions as opposed to doing justice, you might feel like a sucker for not pushing the envelope and testing your luck.

This is where state professional ethics rules ought to kick in, to fill the gap that exists between what is permissible and what is right—right for defendants, right for victims of crime, and right for the public. Indeed, the Supreme Court has expressly justified its evisceration of legal liability for prosecutors on the purported availability of “professional discipline, including sanctions, suspension, and disbarment” as a means to keep prosecutors on the straight and narrow. Connick, 563 U.S. at 66; cf. N.Y. Jud. §90(2).

Unfortunately, study after study has shown that prosecutorial misconduct almost never results in prosecutorial sanction. See Joel B. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies that Prove that Assumption Wrong, 80 Fordham L. Rev. 537, 540-543 (2011) (providing a literature review of relevant studies).

No state, including New York, has embraced the responsibility of using its disciplinary rules to infuse prosecutorial decision-making with ethical standards that have teeth. No New York state district attorney’s office has adopted such rules as internal policy. And relying on disciplinary rules generally applicable to all lawyers misses the important distinction between lawyers representing private interests and those—prosecutors—representing public ones. “As representatives of the state, prosecutors represent ‘the people’ (including the defendants they prosecute) and are charged with ‘doing justice’ rather than zealously pursuing the interests of individual clients.” Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor 144 (2007). It also clearly isn’t effective.

For example, a 2016 report from the Innocence Project studying judicial decisions between 2004-2008 in five states, including New York, found 660 instances of judicial determinations of prosecutorial misconduct, leading to 133 reversals—and exactly one instance of a prosecutor being disciplined. 148 misconduct findings came from New York cases, and not a single prosecutor was disciplined. Innocence Project, Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson 12 (March 2016).

Near the top of the list of categories of misconduct causing reversals are for violations of Brady v. Maryland, 373 U.S. 83 (1963), prohibiting the failure of a prosecutor to turn over to the defense information that is exculpatory and material, meaning “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).

These are ambiguous obligations even to well-intentioned prosecutors. To those inclined to win at all cost they are powerful hedges against the consequences of getting caught. New York’s disciplinary code is only slightly less ambiguous, requiring “timely disclosure” of evidence “that tends to negate the guilt of the accused” or “mitigate the degree of the offense.” New York State Unified Court System, Rules of Professional Conduct [22 NYCRR 1200.0] Rule 3.8(b). But what reasonable person doesn’t think the fair and ethical thing to do would be to give a defendant whatever information the prosecutor has, when she has it, that relates to defendant’s case at all—except in exceptional circumstances that would endanger human life or compromise other open investigations—so that defense counsel can investigate the case, interview witnesses, and prepare for trial or meaningful plea negotiations?

The same holds true for other New York ethical rules that barely curb underhanded behavior, like the ethical rule limiting a prosecutor’s license to overcharge defendants only with respect to establishing probable cause (id., Rule 3.8(a)), rather than limiting charging decisions to only those which can be supported by admissible evidence at trial; or the ethical rule prohibiting prosecutors from asking unrepresented defendants to waive their speedy trial rights (id., Rule 3.8 Comment [2]), but say nothing about a prosecutor pressuring represented defendants from surrendering those rights if they want to have the opportunity to negotiate a plea. To say nothing of the profoundly unscrupulous, but legal, practices that haven’t merited any mention at all in New York’s disciplinary code for prosecutors: asking for bail in an amount a prosecutor knows a defendant can’t possibly pay; manipulating the state’s speedy trial rule by declaring a readiness for trial when the prosecution isn’t (see George Joseph & Simon Davis-Cohen, Internal Documents Reveal How Bronx Prosecutors Are Taught to Slow Down Cases, The Appeal (Aug. 2, 2018)); and relying on the testimony of police officers with histories of perjury or falsifying evidence (see Joseph Goldstein, ‘Testilying’ by Police: A Stubborn Problem, N.Y. Times (March 18, 2018)). These are just a few of the practices that routinely occur in our state’s criminal courts, unencumbered by any disciplinary rule prohibition.

It is upon this rotten foundation that New York’s newly built Commission on Prosecutorial Conduct is charged with providing a vehicle for accountability, and acting as a deterrent to misconduct. In the spirit of “if you build it, they will come,” it is now time for serious reform of the ethics and disciplinary rules for prosecutors, so that the Commission has the tools to do its important work.

Rory I. Lancman is the New York City Council Member for District 24 and Chair of the Council’s Committee on the Justice System. Rachel Graham Kagan is Chief-of-Staff for Councilman Lancman.