September 26, 2015

Protecting Prosecutors

Several regional sections of New York's Commission on Statewide Attorney Discipline met recently to discuss, in part, whether an independent Commission on Prosecutorial Misconduct should be formed to address the growing public recognition that some prosecutors (and, more importantly, prosecutorial offices) were cutting constitutional corners to gain convictions, with disastrous consequences. (NYLJ with pay wall here). It was a collision of sorts between competing interests and voices. It's not hard to guess who won.

From one direction came the proponents who saw such behavior as a real threat to due process and public confidence in the criminal justice system. Treating such misconduct as serious was a critical step towards eliminating it, and the first step would be the public recognition afforded by the creation of a state-wide commission. Barreling down the main avenue at full tilt from the opposite direction was the system's constant desire to insulate itself from public attack, to limit the legal repercussions to private scoldings whenever possible. These opponents, claiming budgetary concerns, joined hands with the bar associations and those who believed it best to protect state actors generally from the harsh light of day, and to ensure the safety and sanctity of the status quo.

Just like any collision between a large truck steaming downhill without brakes and a small fiat sitting sideways in the intersection, the public's interest in a criminal justice system that requires prosecutors to exhibit respect for basic constitutional principles was promptly obliterated.

Instead, the Commission recommended that prosecutorial misconduct cases be referred to one of the four existing disciplinary panels already in place for complaints about lawyer's conduct generally. These four committees are divided geographically across New York. For instance, claims against lawyers in New York City and the surrounding counties are referred to either the First or Second Department, whereas lawyers in the western or northern parts of the state are governed by the Third or Fourth Departments. An overseer would be appointed to make some passing attempt at equalizing the approach and treatment of the four committees. In other words, gross overstepping might be subject to punishment, but only after a long, drawn out process that made clear that the miscreant under the microscope was but a rare, rare specimen.

It's a shameful exercise to maintain business as usual and protect the county prosecutors from embarrassment. As a general matter, it's a well-accepted fact that the disciplinary process varies widely from one committee to the next. What might land you in hot water one place will be promptly waved off elsewhere. Having a misconduct czar might help somewhat, but only in terms of punishing the occasional scapegoat. That is to say, once in a while somebody will blatantly withhold Brady material or something similar, valuing the potential conviction over the prosecutor's overarching duty to uphold the constitution and to do justice. That prosecutor runs the risk of being trotted out for a public hanging if only to prove that the system works. The larger problems, county prosecutors who had no respect for their duties or the law, politicians who valued the press release over all else, and the like, will remain untouchable, barring an avalanche of bad clippings with a stench so overpowering it cannot be ignored -- think, Charles Hynes. In other words, business as usual.

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