Ever since it was first introduced, a bill to set up a commission to handle complaints about prosecutorial misconduct by the state’s district attorneys has been something of an odd duck in the often predictable political fault lines of Albany.
Its Senate sponsor, for example, is John A. DeFrancisco, an upstate Republican whose party generally sides with law enforcement on most issues. Opponents of the bill in that chamber included some of the most dependably liberal Democrats, who are generally in favor of criminal justice reform. But the bill also drew the support of a number of black and Latino Democrats, who saw it as an answer to systemic racism.
The 11-member commission — as conceived by Mr. DeFrancisco and Assemblyman N. Nick Perry — can investigate any of the state’s 62 district attorneys to determine whether their conduct is unprofessional, unethical or unlawful. The group would have broad powers to conduct hearings, compel witnesses to testify, issue subpoenas and request any records or materials that it deems relevant to an investigation.
Gov. Andrew M. Cuomo signed the bill into law on Monday, but with a caveat: The Legislature has agreed to amend the bill to address his concerns about constitutionality during the next legislative session, which starts in January, in exchange for the governor’s support. ADVERTISEMENT
The independent commission is the first of its kind, but it has drawn a consistent and vociferous rebuke from the state’s district attorneys, who plan to sue to block it.
“This flawed and unconstitutional bill will unnecessarily and detrimentally interfere with the fundamental duties of our prosecutors and not bring about any meaningful oversight,” P. David Soares, the district attorney for Albany County and the president of the District Attorneys Association of the State of New York, said on Thursday. “The interference will breed more public corruption and distrust of our public officials.”
Mr. Soares, a Democrat, added that his group anticipates filing a lawsuit next week.
In many ways, Mr. Cuomo’s office agrees that the bill is deeply flawed, citing a series of constitutional problems, including an expansion of the powers of the judiciary and a perceived violation of the separation of powers doctrine. The governor also expressed concerns about potential abuse of the commission by “anyone intent on disrupting a criminal case,” by forcing public disclosure of a prosecutor’s files to the commission, even during active investigations.
“The potential exposure to victims, witness and a prosecutor’s case would be immeasurable,” the governor wrote in a memorandum on Monday when signing the bill. “This intrusion into active investigations would undermine, rather than support, our criminal justice system.”
Yet, for all that, the governor still signed the bill, calling the commission a powerful tool “to root out any potential abuses of power to ensure that our justice system is just for all New Yorkers.”
In an interview on Thursday, the governor’s counsel, Alphonso David, outlined the major changes that will be made to the bill, including a shift in who picks the commission’s 11 members. Under the bill, as originally written, the Legislature would have named six members, a potential voting majority; the judiciary would appoint three; and the governor’s office would tap two members. That was amended so that the governor now will have a greater say in the commission’s makeup, with four members, the same as the Legislature. The judiciary will still name three members, but the appointees must be retired judges, Mr. David said.
The commission’s findings will be issued through the appellate courts, not the Court of Appeals, Mr. David said, sidestepping concerns about an improper expansion of the court’s judicial power. Finally, the amended version will prevent the commission from “investigating investigations,” or examining ongoing cases in which no charges have been filed.
Having four members from the governor’s office may raise some eyebrows, considering Mr. Cuomo’s well-established reputation for maximizing his influence. But the governor’s office said that change was made to mirror the makeup of the state Commission on Judicial Conduct, which investigates complaints against judges.
The commission was applauded by groups like the Legal Aid Society, which called it “a crucial step toward avoiding wrongful incarceration and a way to help prevent future misconduct.”
That sort of declaration was echoed in a news release from the governor’s office that said the commission could potentially fight “malicious prosecutions and wrongful convictions,” which frequently impact “people of color and marginalized communities.” Indeed, before Monday’s deadline to sign or veto the bill, Mr. Cuomo’s primary opponent, Cynthia Nixon, had been calling on him to approve it, accusing him of “dragging his feet” because of fear of “powerful prosecutors in the New York establishment.”
Dani Lever, the governor’s press secretary, scoffed at that assertion.
“We know that Ms. Nixon is new to the legislative process, so we’re happy to explain,” Ms. Lever said. “The Legislature controls the timing of when a bill is sent to the governor.”
For his part, Mr. DeFrancisco, who is retiring from the Senate at the end of this year, was not available on Thursday to comment about the proposed changes; his office said he was traveling. A defense lawyer by trade, Mr. DeFrancisco has previously expressed shock at bad prosecutions, including a 2016 trial in St. Lawrence County in which a black soccer coach was accused of killing a 12-year-old white boy, with little hard evidence. The coach, Oral Nicholas Hillary, was eventually acquitted.
Mr. Soares said that his fellow district attorneys were not opposed to oversight and supported additional funding for existing grievance committees overseen by the state’s judicial branch that monitor “all lawyers involved in the criminal justice system in New York State.”
But he expressed doubts that the bill as passed, and signed, could still be fixed.
“There are no chapter amendments that can resurrect this constitutionally flawed document,” said Mr. Soares.