(10:50 AM) DA Opposes Signing Of Bill Creating State Commission On Prosecutorial Conduct

Chautauqua County District Attorney Patrick Swanson pictured inside his office in the Gerace Office Building in Mayville. P-J photo by Eric Tichy

A bill signed this week by Gov. Andrew Cuomo that will create a commission to investigate complaints of misconduct by local prosecutors and their assistants is receiving plenty of scorn from state district attorneys.

Among those against the creation of the State Commission on Prosecutorial Conduct is Chautauqua County District Attorney Patrick Swanson, who said the law is unconstitutional and will only make it harder for DA offices throughout the state to effectively prosecute.

Cuomo signed the bill Monday creating the commission after state legislators agreed to amend several provisions due to concerns over the legislation’s constitutionality. The amendment will be approved at the beginning of the legislative session in January.

The bill, which passed the legislature in June, will establish an 11-member commission to investigate complaints of misconduct by county prosecutors. Findings from the commission with a recommendation will then go to the governor.

“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.”

However, Swanson — a member of the District Attorneys Association of the State of New York — said the law contains “numerous constitutional issues” and could hinder county prosecutors.

“This (bill) was jammed through and is ill-advised,” Swanson told The Post-Journal. “It’s going to cost the state millions of dollars for this commission that’s already in place.”

Swanson noted that there is already an attorney grievance process in place in addition to judges and appellate courts that hold prosecutors accountable. He said it would be more efficient to amend the current method of oversight if needed than to spend the money on creating another commission that solely will target county district attorneys.

“There are very real-world consequences,” Swanson said. “It’s going to effect how prosecutors make decisions, and not for the right reasons. … This bill over-reaches and places more power on the Court of Appeals.”

He said in theory someone could file frivolous complaints in an attempt to intimidate or sway prosecutors while investigating or in court.

“I question the motivation of the bill, personally,” he continued.

The state District Attorneys Association said it plans to litigate the law and file a motion to determine the constitutionality of the bill.

“It is unfathomable that lawmakers would author and pass a bill that has numerous constitutional flaws and violates the separation of powers. It is outrageous that the Governor would sign such a bill,” said David Soares, president of the association and Albany County district attorney.

“Sadly, today the Governor, who previously served as the Attorney General of the State, after requesting and receiving an opinion from the current Attorney General that stated that the legislation is flagrantly unconstitutional, chose to ignore all of these concerns and signed the bill into law. Everyday, in courtrooms all over the state, prosecutors adhere to their oaths and defend our constitution. As a result of today’s events, DAASNY has little choice but to defend the constitution in court yet again- by mounting a vigorous challenge to the enactment of this misguided legislation,” Soares continued.

See tomorrow’s edition of The Post-Journal for complete coverage.