Agreement Halts Panel To Probe Misconduct

An agreement between New York and district attorneys across the state has likely halted a measure that would have created an independent body to investigate complaints of misconduct by local prosecutors and their assistants.

The District Attorneys Association of the State of New York sued the state in October after Gov. Andrew Cuomo signed a bill creating the State Commission on Prosecutorial Conduct. The association, of which Chautauqua County District Attorney Patrick Swanson is a member, said the legislation violated the state Constitution.

Under the recent agreement between the association and state, both the lawsuit and the creation of the panel are on hold. The stipulation was overseen by Judge David A. Weinstein.

David Soares, president of the District Attorneys Association, said the agreement “speaks for itself.”

“In lay terms, the legislation is frozen in place and will not take effect Jan. 1 pending action of the legislature and the governor,” Soares said in a statement Monday. “Should the legislature and the governor not act, or again enact an unconstitutional statute the litigation will proceed. We hope that will not be necessary.”

The panel would have established an 11-member commission to investigate complaints of misconduct by county prosecutors. Findings from the commission with a recommendation would have then gone to the governor for further action.

However, Swanson said the law contained “numerous constitutional issues” and would hinder county prosecutors. He noted that there is already an attorney grievance process in place in addition to judges and appellate courts that hold prosecutors and their assistants accountable.

“This was jammed through and is ill-advised,” Swanson said of the bill in August.

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

“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.”

When asked of the agreement Tuesday, Swanson said he shared the opinion of Soares and the association

“Prosecutors around our state welcome oversight,” Soares said in his statement. “However, we will not accept unconstitutional interference. The constitutional infirmities inherent in the legislation that would have established a commission on prosecutorial conduct are incurable. Should the legislature and the governor seek to create a constitutionally appropriate mechanism to improve the oversight of the conduct of prosecutors and all attorneys in our state, the District Attorneys Association of the State of New York stands ready to help find effective legal solutions.”

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