troubling, since prosecutors often argue that the most serious acts of misconduct are usually committed by serial offenders and not the vast majority of prosecutors. Centralized System with Safeguards Against Interference SB 2412 provides for a centralized system focused solely on prosecutorial conduct. The commission will have subpoena power to conduct meaningful investigations in a transparent way. Moreover, the bill provides for a balance of prosecutors and defense attorneys as commission members who recognize the difference between intentional violations that breach ethics rules as opposed to mere error which should not be subject to discipline at all, thus providing added protection to prosecutors from facing complaints with no merit. To prevent an unwarranted complaint against a prosecutor who is conducting an investigation, the bill specifically permits the prosecuting agency to notify the commission that such an investigation would interfere with that of the prosecuting agency at which time the commission can exercise its powers only “in a way that will not interfere with an agency’s active investigation.” (See SB 2412, § D[1]). Recent claims by the District Attorneys Association of New York that prosecutors will sustain interference in their functions are belied by specific provisions in the bill designed to prevent that occurrence. Constitutional Compliance and Authority The bill meets constitutional standards. The original legislative act creating the Commission on Judicial Conduct (upon which SB 2412 is based) provided that the Judicial Commission could only propose the removal of judges found to have committed misconduct. Two years later a ballot initiative was approved when the power of the Commission was extended to enable it to actually remove a jurist from office. Under SB 2412, the proposed prosecutorial conduct commission would only have the power to make recommendations to the Governor. NYS Constitution, Article 13 (Public Officers), § 13(a) and (b), provides that only the Governor may remove a District Attorney from office. The Prosecutorial Conduct Commission bill specifically avoids any conflict with that constitutional provision by providing that it may only recommend to the Governor the removal of a District Attorney, thus preserving, without any limitation, the Governor’s constitutional power. (See SB 2412, § F[1]) and [7]). 8 Instances of Egregious Prosecutorial Misconduct in Actual Cases Prosecutorial conduct which results in wrongful convictions is real. Last May, prosecutor Glenn Kurtzrock was caught in Suffolk County concealing dozens of pages of Brady material from the defendant. Worse still, defense counsel then discovered that Kurtzrock had altered hundreds of pages of police records to
It should also be noted that the bill provides a prosecutor with the right to appeal any recommendation for removal to the Court of Appeals, and if the court upholds the removal recommendation, it must then transmit its recommendation to the Governor who alone shall determine if removal is warranted. (See SB 2412, § F[8]).
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Atticus | Volume 30 Number 2 | Summer 2018 | New York State Association of Criminal Defense Lawyers