Prosecutor Panel Must Be Non-Partisan

No one can argue that innocent people have served time in jail because they were wrongly convicted or, worse, wrongly accused and then wrongly prosecuted.

What can be argued is the best way to fix the problem.

The state Legislature approved legislation before the end of the legislative session to create an 11-member State Commission on Prosecutorial Misconduct that was signed recently by Gov. Andrew Cuomo to investigate alleged misconduct against district attorneys and their prosecuting attorneys. It is a bit troubling, first, that the governor signed the legislation based on a wink and a smile with legislators to reopen the legislation when the state Legislature is back in session to amend several provisions that may be unconstitutional in the law that was passed. It would be preferable for the legislation to be correctly written and phrased before it is signed by the governor.

Second, the commission places blame for wrongful convictions on only one part of the court system. The University of Michigan’s National Registry of Exonerations indicates there have been 12 wrongful convictions reversed this year in New York state. Most of the cases are in the New York City area with several possible contributing factors in each case. Causes include five instances of mistaken witness identification, four instances of inadequate legal defense, seven instances of official misconduct and eight instances of perjury or false accusation. If the goal is to make sure no one is wrongly convicted, one can argue that Cuomo’s commission only tackles one-third of the problem by focusing solely on prosecutors and not on all four groups involved in prosecutions — prosecutors, judges, police and defense attorneys. Did judges make poor decisions because they are hearing too many cases or because they are simply bad judges who don’t understand the law? Should defense attorneys be held responsible for poorly crafted legal defenses? Where false accusations were made, were they by police departments and, if so, where is that commission? Cuomo’s prosecutorial misconduct commission papers over the multitude of reasons people are wrongly convicted by focusing its attention solely on prosecutors.

The devil is in the details, which are still to be finalized, but it would seem there should be some guidelines as to which cases make their way to the commission and a consequence to lawyers who commence frivolous misconduct allegations at the expense of taxpayers and the court system.

Finally, prosecutors have every right to be upset with the possible composition of the commission. It would be easier to back such a commission if there was some assurance that it wouldn’t fall prey to partisan politics. As we have seen with the Moreland Commission, it’s easier to disband watchdog groups than to have investigations hit too close to home. What happens, then, when the prosecutorial misconduct commission finds fault with a prosecutor who is friendly with a governor of either political party? Would justice be served, or politics? What happens if a prosecutor who is an outspoken opponent of state policy is the subject of a series of unfounded misconduct complaints?

The commission is going to happen unless it is struck down as unconstitutional. We hope that it is constructed with nothing but fairness and justice in mind. It is imperative that the panel be non-partisan. District attorneys, elected by a majority of the registered voters in each county, should not be able to be removed from office for anything other than gross misconduct.

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