By David M. Greenwald
Executive Editor
New York – It has taken ten years for New York to become the first state to create a Commission on Prosecutorial Conduct (CPC) to investigate and identify prosecutorial misconduct. However, despite the seminal signature by Governor Cuomo in June of 2021, his successor, Governor Hochul, has not appointed her allotment of four to the 11-member body.
A NY Times Editorial last year referred to it as a “prosecutor-protection racket,” noting that “New York shelters its lawyers from disciplinary measures more than most states in the country, even as it ranks near the top in total number of exonerations — a majority of which are the result of misconduct by prosecutors.”
The Commission on Prosecutorial Conduct was created to solve this problem or at least improve it, but for that to happen, advocates say, there has to be a commission in the first place.
Marvin Schechter, a New York criminal defense attorney, told the Vanguard that no one really knows why the governor has not made the appointments.
“It’s important to remember that Governor Hochul took office as a result of another governor resigning, and the period of changeover was chaotic, to say the least,” Schechter told the Vanguard.
After filling the seat after Governor Cuomo abruptly resigned last year, she had to run for election on her own.
But Schechter said, “The election’s over” and “here we are a few days away from the New Year and we still have not heard anything.”
While there are practical and political considerations, there is also the fact that the DAs in New York staunchly opposed the commission and fought it every step of the way.
“The District Attorneys don’t want anybody looking over their shoulders,” Russell Neufeld, a long time Legal Aid attorney and former public defender said. “They don’t want any outside entities having any influence on how they run their offices.”
In addition, Governor Hochul has been roundly criticized for the nomination of Judge LaSalle as Chief Judge for the NY State Court of Appeals.
Schechter explained that the court is currently split 3-3 between conservatives and liberals, and the governor picked someone that “has not been well received by what are called progressives or liberals.”
“There’s a lot of controversy,” he explained. “For the first time in New York’s history, there’s the possibility at the moment that various senators will be able to stop the consent portion of advise and consent for this appointment. We don’t know if that’s going to happen, but there’s a lot of noise going on about that.”
Bill Bastuk, whose organization, “It Could Happen to You,” helped draft and guide the legislation, told the Vanguard “these appointments are long overdue, the governor is bound by law to make these appointments especially since the speaker and the chief judge have already made their appointments.”
Bastuk added that the two appointments by the speaker, Mayo Barlett and Amy Marion “are excellent appointments.”
If the governor continues to drag her feet, there is some recourse.
Schechter explained that someone could file a writ of mandamus under Article 78 to compel the governor to do that.
He noted that It Could Happen to You could potentially file that writ, but they have not indicated if they would do so yet.
But he cautioned it might be risky, and could provoke the governor to appoint less favorable commissioners.
“I don’t have an answer to any of this, but I can tell you that time is ticking away,” he said. “That legislation creating the commission was signed by Governor Cuomo in June 2021. “We are now almost 18 months into that commission’s existence. And we don’t have a commission. That’s a pretty powerful argument to make to a judge in a court of law, but we’ll see.”
While all states have problems with accountability and oversight of prosecutors, reformers argue that New York is particularly egregious, though “far from unique.”
Schechter explained, “We have had a system in New York for over 45 years where lawyers who commit unethical practices go before grievance committees.”
He said, “This system, which has existed forever, came under attack about 10 years ago, because we could not get prosecutors who had committed the most egregious misconduct in cases that the court said so.”
He explained that “numerous cases have been the subject of court decisions involving various misconduct by prosecutors, most notably the withholding of exculpatory evidence to the accused such as information that there were others suspects to the alleged crimes.”
Meanwhile, Neufeld noted that he was the attorney in charge of the largest public defender office in New York.
Under the seminal Supreme Court decision, Brady v. Maryland, anything that was exculpatory or it would help a defendant at sentencing had to be turned over to the defense by the prosecution.
He said, “That was not happening, almost never, ever, ever happening.”
He explained, “We wouldn’t get stuff and most of the time you never even found out about it. And the only time you found out about it would be years later during an appeal or a civil case, because civil discovery is so much better in New York than criminal discovery.”
He said, for years he saw Assistant DAs “trying to keep people of color off juries and using peremptory challenges to do that, and making up lying excuses when they got called on it…”
As the NY Times put it, “Prosecutors can work in the interests of fairness and justice, but they can also cheat and destroy people’s lives. They should be held accountable when they do — both to vindicate their victims and to help ensure that they can’t do it again.”
