Prosecutor misconduct commission moves forward in “Hynes” legislature

June 11, 2014 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
Charles Hynes is under a lot of hot water. AP photo
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Brooklyn has been plagued by revelations of wrongful convictions and allegations of improper prosecutorial conduct over the past few years. In the last year-and a-half, seven men have been released from prison after being wrongfully convicted in Brooklyn courtrooms and the former District Attorney Charles Hynes may face criminal charges of his own for theft while in office.

The New York State legislature is hoping to curb this misconduct by pushing forward a bill designed to oversee New York’s prosecutors and recommend disciplinary actions against those discovered to have engaged in improper activity or whose performance displays a degree of incompetence not suited for the office.

The role of the “Commission on Prosecutorial Conduct” is outlined in Assembly bill A8634 and Senate bill S6286. Sponsored by Brooklyn Assemblyman N. Nick Perry (D), the Commission will be comprised of 11 members charged with responsibility of analyzing allegations of prosecutorial misconduct and dispensing suggested discipline for infractions.

Of the 11-member commission, three will be appointed by the chief judge, legislative minority leaders will appoint one — and the governor and each legislative majority leader will appoint two.  At least three members appointed by legislative members must be defense attorneys.

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The proposed commission is set to mimic the Commission on Judicial Conduct. Formed in 1975, the Commission on Judicial Conduct receives and reviews complaints regarding suspected improper or unethical conduct by New York State judges. When warranted, the commission investigates such allegations and makes recommendations to the New York State Court of Appeals.  According to records, the Commission on Judicial Conduct has disciplined over 800 judges and removed approximately 166 from office since its inception. 

The sponsors of A8634/ S6286 are hoping for a similar structure for the state’s 62 county district attorney offices.

“Right now, we learn of prosecutorial misconduct after several years, after someone has gone to jail and they are later released and the state pays a lot of money,” said State Senator John DeFrancisco (R-Syracuse). “There really is no accountability for that prosecutor.”

District attorney’s across the state are split on their reactions to and concerns about the proposed commission.  Many are choosing to remain silent until more information is laid out. 

“We have no position at this time,” said a spokeswoman for Brooklyn District Attorney Ken Thompson. “We are reviewing the legislation in conjunction with the District Attorney’s Association of New York and, therefore, it is premature to comment.”

The state District Attorneys Association is preparing to submit its response to the proposed commission detailing “several important practical and constitutional concerns with this legislation,” the group’s spokeswoman said in a released statement.

Schenectady County District Attorney Robert Carney expressed worry that the state legislature does not have the authority to create such a commission. One of the powers to be granted to the proposed commission is to ability to recommend that a prosecutor be removed from office.  Such recommendations would be referred to the chief judge of the New York State court of appeals. 

In Carney’s estimation, the commission would expand the powers of the court of appeals, an action that can only be accomplished through an act of the state constitution.

“[The proposal] is in direct contravention of the constitution,” Carney said.

Defense attorneys agree that the proposed commission presents a complex constitutional question, but nevertheless, support the measure the same.

Criminal defense attorney Joel Rudin is currently engaged in a battle against the city and the Brooklyn DA’s office as he seeks financial redress for Jabbar Collins, a Brooklyn defendant wrongfully convicted of murder in 1995. Rudin, in the present suit, has alleged, on behalf of his client, severe acts of misconduct by former prosecutors under the Hynes’ administration—misconduct that Hynes may have been aware of, according to the suit.  

“Yes, I support such a commission,” Rudin said.  “District Attorney offices do not have a great track record of policing themselves,” he continued. “District Attorney offices do not have a great track record of policing themselves. Neither do the grievance committees of the court system. I would like to see more of a balance as to the members of the commission” Rudin added. “In addition to defense attorneys and prosecutors, perhaps add ethics professors.” 

“There is already a disciplinary process for attorneys, via the Grievance Committee, short of disbarment,” Rudin said.  

“I would like to see more of a balance as to the members of the proposed commission,” Rudin said. “In addition to defense attorneys, ethics professors should have a seat on the commission.” 

If the votes in the legislature committees are any indication, the proposed commission bill may likely go through.  The bill passed by a vote of 18-1 by the Assembly Judiciary Committee and 20-0 by the Senate Judiciary Committee. It is now before the Senate Finance Committee although, it is unclear if the bill will become law this legislative term. The 2014 legislative session ends next week and no vote on the bill has been scheduled as of date.

CORRECTION: 

The article ‘Prosecutor Misconduct Commission Moves Forward in Legislature’ misquoted attorney Joel Rudin. Mr. Rudin believes that “District Attorney offices do not have a great track record of policing themselves. Neither do the grievance committees of the court system.” In addition, Mr. Rudin “would like to see more of a balance as to the members of the commission. In addition to defense attorneys and prosecutors, perhaps add ethics professors.” 

 


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