DA, State Reps Call Commission Redundant, Costly

Patrick Swanson

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 and local lawmakers.

Among those against the creation of the State Commission on Prosecutorial Conduct are Chautauqua County District Attorney Patrick Swanson and state Assemblyman Andy Goodell, both of whom said the law violates the state’s Constitution 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 who has the power to remove prosecutors from office.

“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 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 targets 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,” Swanson said.

The bill was sponsored by state Sen. John DeFrancisco, R-DeWitt, in the Senate and Nick Perry, D-Brooklyn, in the Assembly.

“The successful passage of the bill into law was a real high-level challenge, probably the most difficult in my 25 years in the Assembly, but it was easy to maintain my motivation and focus as I learned each day of the crippling impact of unchecked power of prosecutors, and the egregious misconduct that put numerous innocent New Yorkers behind bars,” Perry said in a June statement. “It was both amazing and alarming to learn that almost every single time, bad prosecutors got away with misconduct with no penalty, whatsoever.

“By signing this bill into law, the governor will put New York State at the very head of the line as the undisputed leader on the quest for justice and fairness in our criminal justice system.”

Noting the National Registry of Exonerations, Perry said 43 percent of wrongful convictions are the result of official misconduct, while those exonerated have spent nearly 2,000 total years in prison.

Meanwhile, the state District Attorneys Association said it plans 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,” said David Soares, president of the association and Albany County district attorney. “It is outrageous that the Governor would sign such a bill.”

Goodell, R-Jamestown, voted against the bill when it reached the state Assembly floor earlier this summer. Goodell also pointed to the commission’s cost — estimated at $5.6 million — and the attorney grievance board as reasons he opposed the legislation.

The assemblyman said attorneys are already held to “high ethical standards” by judges and the appellate courts while they are also required to meet a high burden of proof while prosecuting cases at trial. He said the commission will be filled with “political appointees” including defense attorneys.

“It’s unnecessary because attorneys are subject to very strict and ethical requirements that are enforced by the courts,” Goodell said. “This would change that process by having a group of political appointees. … The judiciary for centuries has done a very good job overseeing attorneys and making sure they are behaving.”

Goodell also noted that those who make complaints aren’t required to do so under oath, where perjury laws are in place. “There’s no need for this,” he said. “We want our prosecutors prioritizing their focus on putting the bad guys away.”

State Sen. Cathy Young, R-Olean, opposed the bill in the Senate.

“While there are valid arguments on both sides, I voted against this measure because I felt it may not be necessary,” Young said. “Genuine cases of misconduct are extremely rare. In those instances where credible allegations are made, there already exists a mechanism to investigate and discipline those who have abused their power.”