A preliminary report of Governor Andrew Cuomo’s anti-corruption panel has reignited an old debate over whether New York State should join the federal government and the vast majority of states and scrap its controversial “transactional immunity” rule that cloaks grand jury witnesses with an extraordinary shield against prosecution.

Under New York’s rule, codified under Criminal Procedure Law §50.20 and §190.40, a witness compelled to testify before a grand jury is automatically immune from prosecution on any matter on which she or he testifies, even if independent evidence is developed. The federal government and 33 states provide witnesses with “use immunity,” which bars the prosecution from using the witness’ own testimony, or evidence derived from that testimony, against the witness.

Prosecutors have for decades urged the state to drop transactional immunity and adopt a use immunity standard. Earlier this month, the Commission to Investigate Public Corruption, or “Moreland Commission,” joined the chorus. The 25-member commission, which includes 17 current or former prosecutors, said that transactional immunity impedes the ability of authorities to prosecute crooked officials.

A majority said that with the transactional rule, the fear that a prosecutor will unwittingly immunize a witness merely by mentioning an incident has a “chilling effect” and the district attorney may be reluctant to summon a wrongdoer before a grand jury, lest the witness say something that will trigger immunity and render a crooked politician untouchable.

“Public corruption cases are often multifaceted criminal enterprises, where witnesses play a key role in untangling the complexities of a given scheme,” the commission said. “The chilling effect of ‘unknowing immunization’ places prosecutors at a significant disadvantage in pursuing public sector corruption cases.”

The commission said prosecutors “must not be chilled from zealously prosecuting those who have betrayed the public trust,” and should have “access to the same full complement of resources as their federal counterparts, who have proven so adept at prosecuting these crimes.”

Since the commission’s mandate under an executive order signed by Cuomo is limited to identifying weaknesses in existing laws related to “public corruption, conflicts of interest and ethics” in state government, the panel did not recommend eliminating transactional immunity in all criminal cases.

“The commission confines itself to the subject matter of the Executive Order and recommends that at a minimum, the rule be altered for public corruption matters,” the commission said in the 367th footnote to a 98-page report.

Similarly, the majority said New York should, in public corruption cases only, do away with the state’s rule requiring corroboration of accomplice testimony. New York is one of 18 states to require independent corroboration of accomplice testimony by someone who is not an accomplice.

“Public corruption cases often hinge on the testimony of accomplices,” the commission said. “The close circle of insiders in a corruption scheme may be the only ones privy to vital facts needed to effectively prosecute wrongdoing. Without this tool, New York prosecutors are frequently left powerless to effectively prosecute complex public corruption cases.”

Several members of the commission argued that the laws should either be changed for all cases, or none, and opposed setting up special rules for public corruption cases.

Broome County District Attorney Gerald Mollen, Warren County District Attorney Kate Hogan, Bronx District Attorney Robert Johnson, Rockland County District Attorney, Thomas Zugibe, Onondaga County Executive, Joanie Mahoney and Dan Castleman, managing director of the Forensic and Litigation Consulting practice in New York, all said that the rules should be changed uniformly or not at all. Mahoney and Castleman are both former prosecutors.

The group’s argument was reported by the commission in its report. “If the Commission’s recommendations were adopted in their current form, this group asserts, persons accused in ‘public corruption cases’ (however those cases might be defined) could be convicted and sentenced to imprisonment based on investigations founded on testimony elicited through the use of immunity and accomplice testimony corroborated only by other accomplice testimony, while at the same time a wide range of more serious and more violent offenders, such as violent gang members and organized crime bosses, would remain shielded by the evidentiary rules the Commission has judged to be unnecessary obstacles to justice,” according to the report.

Former Appellate Division, First Department, Presiding Justice Betty Weinberg Ellerin, now of Alston & Bird, agreed that transactional immunity should either be eliminated entirely or retained. However, she, along with former New York State Bar Association President Seymour James, attorney-in-charge of the Legal Aid Society, and David Jones, president and chief executive officer of the Community Service Society of New York, oppose eliminating the accomplice corroboration rule under any circumstances.

“This group argues that accomplice testimony is an inherently suspect class of evidence,” according to the report. “The accomplice, they note, is an admitted criminal with a strong motivation to shape his or her testimony to please those offering a deal to avoid prison altogether, or to receive other forms of favorable treatment.”

Prior Reform Rejected

Cuomo, in an ill-fated legislative reform package presented earlier this year, also proposed eliminating transactional immunity in public corruption cases.

The New York State Defenders Association opposed the measure, arguing that while use immunity has been found sufficient to protect an individual’s right against self-incrimination under the U.S. Constitution (see Kastigar v. United States, 406 U.S. 441, 1972), it does not meet the higher standards of the New York State Constitution.

In a memorandum in opposition to that portion of Cuomo’s Public Trust Act, the Defenders Association said that the Court of Appeals, in Matter of Doyle, 257 NY 244 (1931), found that state Constitution requires transactional immunity, with then Chief Judge Benjamin Cardozo declaring that “immunity must be so broad that the risk of prosecution is ended all together.”

Additionally, the group said “retaining transactional immunity for most crimes and limiting use immunity to crimes involving breach of the public trust is logically indefensible.” It characterized the proposal as “the opening bid in a prosecution-led effort to eliminate transactional immunity altogether in New York.”

The commission released its preliminary report on Dec. 2, concluding that while its probe is continuing, the need for immediate reform is clear.

“Delay should not be an option,” the commission said in its report. “We have proposed in this report a broad menu of reforms. These measures will be a strong step toward reining in corruption and restoring New Yorkers’ trust in government. Our elected leaders should consider and enact them as soon as possible.”

The reform proposals include:

• Public financing of political campaigns, with tighter disclosure rules and lower contribution limits.

• Creation of an independent election law enforcement agency on the grounds that the bi-partisan state Board of Elections structure has “effectively led to a tacit, bi-partisan agreement to do nothing.”

• Broadening the bribery laws and creating a new offense of failure to report bribery.

• Requiring broader disclosure of outside income earned by legislators.

Firm Fights Subpoena

The commission is already attempting to force lawmakers to disclose more information about their outside business interests than required under the state ethics law. It has issued scores of subpoenas to lawyer-legislators and the law firms that employ them, seeking disclosure of a plethora of information, including details on their clients.

Although the Legislature has withdrawn a motion to quash the subpoenas, at least one large law firm is continuing to fight.

Harris Beach, which was issued a subpoena seeking information on Senator Michael Nozzolio, a Seneca Falls Republican who is of counsel to the firm, intends to “fully litigate” the issue, according to Karl Sleight, a partner at Harris Beach.

Sleight filed a motion in Manhattan Supreme Court alleging that the subpoena, which seeks information ranging from the names of Nozzolio’s clients to details of how often he walked through Harris Beach’s doors at its Pittsford office, is overly broad and represents an unconstitutional violation of the separation of powers doctrine (NYLJ, Nov. 25).

In an interview, Sleight said the decision by the Senate and Assembly to rescind their quash motions has no bearing on Harris Beach’s concerns. He said the motion to quash is returnable Dec. 20.

The Moreland Commission, named after a 1907 law that gave the governor or his delegates wide authority to investigate state government, was created by Cuomo in July when the governor made good on a threat to investigate the Legislature unless lawmakers approved his reform agenda. It is cochaired by Onondaga County District Attorney William Fitzpatrick, Nassau County District Attorney Kathleen Rice and Milton Williams Jr., a partner at Vladeck, Waldman, Elias & Englehard.