Cuomo plans to sign bill creating commission on prosecutorial misconduct

KCCBA president: Commission is good but discovery reform is still needed

August 16, 2018 By Rob Abruzzese, Legal Editor Brooklyn Daily Eagle

Brooklyn District Attorney Eric Gonzalez has remained silent regarding a bill that Gov. Cuomo is expected to sign that would form a commission to oversee him and the rest of New York State’s prosecutors. Eagle file photo by Rob Abruzzese

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A bill to create a NYS commission on prosecutorial misconduct that passed the state Senate and Assembly earlier this year is about to become law as Gov. Andrew Cuomo is expected to sign it into law this week, according to the Wall Street Journal.

Cuomo has until Monday to sign the bill, otherwise it is automatically vetoed. According to the Journal’s report, Cuomo supports the idea of the commission, but may negotiate with the legislature to make amendments to it; his signature is not yet a guarantee.

The legislation that passed at the end of the session would create an 11-person panel to oversee misconduct committed by prosecutors. That panel would consist of appoints by the governor, legislators and the Chief Judge of the NYS Court of Appeals, a seat currently held by Hon. Janet DiFiore.

The majority of district attorneys across the state have opposed the commission that would police them. Brooklyn District Attorney Eric Gonzalez has not spoken about the commission publicly. Gonzalez declined interview requests from the Brooklyn Eagle on the topic, and his spokesperson declined to comment on the topic on Thursday.

The Brooklyn Defender Service is certainly expected to celebrate once the bill is signed. It has been collecting signatures recently on a petition to urge Gov. Cuomo to sign the bill into law.

The District Attorneys Association of the State of New York (DAASNY) has issued a statement opposing the commission. Their statement says that claims of prosecutorial misconduct and error can already be pursued by existing methods, such as the Appellate Division Grievance Committee, which could disbar an attorney. The statement also said that willful misconduct is rare, and that the DAASNY and DA’s Offices have already taken numerous steps to ensure a fair justice system.

“New York’s elected District Attorneys are among the most ethically conscientious, the most regulated and the most scrutinized in the country,” the DAASNY statement said. “The goals of the proposed legislation are laudable. But they can be achieved by strengthening the disciplinary mechanisms already in place.”

DAASNY is preparing to challenge the commission in court.

New York’s attorney general has warned that the bill could be invalidated by the courts as it could potentially interfere with a prosecutor’s decision making and violate the separations of powers.

Michael Cibella, a defense attorney and president of the Kings County Criminal Bar Association, said that if the legislature wants to do something to help people caught up within the justice system, the easiest thing would be to commit to discovery reform.

“What the legislators can do right now to make prosecutions fairer would be to enact long overdue reform of New York’s current trial-by-ambush discovery procedures, where defendants still are not entitled to witnesses’ names and statements and other evidence against them until the jury has already been sworn in,” Cibella said. “We’re one of the few remaining states that have such arcane discovery procedures for a defendant whose liberty is at stake. They can pass discovery reform now by taking action they are clearly entitled to take and avoid the procedural battles with DA’s offices that are expected to come.”