FWD.us Statement on New York Commission on Prosecutorial Conduct Bill

WASHINGTON, DC – FWD.us President Todd Schulte issued the following statement today urging Governor Andrew M. Cuomo to sign the pending bill to create a commission to investigate misconduct by prosecutors:

“At the end of the legislative session, New York lawmakers passed a bipartisan bill to create a Commission on Prosecutorial Conduct by an overwhelming majority. This is a good bill. We urge Governor Cuomo to sign this bill into law immediately to create an independent commission to ensure that prosecutors are held accountable to all of us.

“As The New York Times editorialized, ‘Prosecutors don’t like to admit it, but even though most are honest and law-abiding, misconduct in prosecutorial ranks remains all too common.’ New York is second only to Texas with 267 overturned convictions. Right now, there is almost no accountability for the prosecutors.

“If signed into law, this would not only be a critical oversight tool, but would be the first commission of its kind in the nation.

“Governor Cuomo committed to prioritizing criminal justice efforts in 2018. This is an important step in making good on that commitment. It is also a good government-step that helps New York move to the best use of taxpayer resources, and a focus on justice and actual public safety. We urge the Governor to act swiftly and sign this bill into law, so that New York can once again lead in this critical area.”

Prosecutors Need a Watchdog

A bill on Gov. Andrew Cuomo’s desk would address a serious problem in New York State. He ought to sign it.

The Editorial Board | August 14, 2018

Jabbar Collins spent 16 years in New York prisons for a murder he didn’t commit. He was released in 2010, after key witnesses recanted their testimony and a federal judge found that the prosecutor, Michael Vecchione, had withheld critical evidence during the trial. The judge called the behavior of the district attorney’s office “shameful.”

Mr. Collins eventually received $13 million in settlements for the years of his life that were wrongfully taken away. That money was shelled out by New York’s taxpayers, who might reasonably have asked what was being done to punish those responsible for this injustice, and to ensure it didn’t happen again. The answer was nothing. Mr. Vecchione, a veteran Brooklyn prosecutor, retired with benefits in 2013. He never faced any public sanctions for his misconduct in the Collins case, nor for his questionable actions in several other cases over the years.
It’s a painfully familiar story in New York, which trails only Texas in the number of overturned convictions of innocent people, some of whom spent decades behind bars.

The problem is obvious: Prosecutors don’t like to admit it, but even though most are honest and law-abiding, misconduct in prosecutorial ranks remains all too common. A review of 250 exonerations in New York since 1989 found that one-third involved prosecutorial misconduct, like tampering with key evidence, withholding evidence from the defendant or coercing a witness to give false testimony.

And since this sort of behavior so often happens behind closed doors, it can be hard to root out and harder to remedy, thanks to Supreme Court rulings that have immunized individual prosecutors, and in most cases their entire offices, from being sued. Even when prosecutors are caught red-handed, they almost never face consequences. In the rare cases when they do, any discipline is usually handled in secret.

In short, there’s no reliable system for holding prosecutors accountable for their misconduct, and they certainly can’t be entrusted with policing themselves.

The good news is that there’s a solution. New York lawmakers in June overwhelmingly passed a bill to establish an independent, publicly accountable commission that would investigate prosecutorial misconduct. It will be the first commission of its kind in the nation if Gov. Andrew Cuomo signs the bill into law, which he has until Monday night to do.

The commission would have the power to investigate complaints against prosecutors and to compel them to testify and turn over documents. It wouldn’t be able to punish them directly, but it could issue warnings and recommend sanctions, including in extreme cases that the governor remove a prosecutor from office. The commission would consist of 11 members — two appointed by the governor, three by the state’s chief judge and the remainder by legislative leaders of both parties — and it would release the results of its investigations in an annual report.

The purpose of the commission, which is modeled on New York’s successful judicial conduct commission, is not simply to punish cheating prosecutors, but to change the win-at-all-costs mentality that infects too many prosecutor’s offices. That would benefit all New Yorkers, not just the wrongfully convicted. Public safety would improve as fewer resources are wasted prosecuting the innocent, and taxpayers wouldn’t be on the hook for so many payouts to the victims of bad prosecutions.

The commission bill, which attracted strong bipartisan support from lawmakers across New York, could also serve as a model for other states as they look for more effective ways to crack down on misconduct.

The bill’s only opponents are those who would be the subjects of the commission’s scrutiny — the district attorneys themselves. They say that they already abide by a stringent code of ethics and that there are plenty of ways to hold prosecutors to account, including grievance committees, private lawsuits and elections. But none of those steps has ever proved sufficient to prevent misconduct or punish repeat offenders.

Critics of the legislation also say elements might violate New York’s Constitution by, for example, granting more power to the commission or to the Court of Appeals than is permitted. To the extent that there are legitimate concerns on this point, they don’t need to be insurmountable hurdles. There is broad agreement that more prosecutorial accountability is needed, and the bill can be adjusted to satisfy everyone — besides the D.A.s, at least.

Mr. Cuomo has made criminal-justice reform a signature of his long career in public service; as governor he’s overseen the shuttering of more than a dozen prisons and restored voting rights to tens of thousands of New Yorkers on parole. He knows as well as anyone that prosecutorial misconduct is a serious and stubborn problem that has largely defied solution. By signing this bill, he would move New York in the right direction, as well as set an important example for the rest of the nation.

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