Another Commission: Will Cuomo Veto It?

That prosecutorial misconduct is a problem isn’t exactly news, even as prosecutors vehemently deny that it’s widespread, that there are already ways to deal with it and that it will hamper their effectiveness by making prosecutors fearful of doing their job without fear of repercussions.

Of course they hate being denigrated. Who doesn’t? But that doesn’t change the facts.

The problem is obvious: Prosecutors don’t like to admit it, but even though most are honest and law-abiding, misconduct in prosecutorial ranks remains all too common. A review of 250 exonerations in New York since 1989 found that one-third involved prosecutorial misconduct, like tampering with key evidence, withholding evidence from the defendant or coercing a witness to give false testimony.

Then again, the fact that a problem exists does not lead inexorably to the conclusion that any solution will fix the problem. The syllogism is well worn.

Something must be done.
This is something.
This must be done.

The solution enacted by the New York legislature is a commission, because what politician doesn’t love a commission?

The good news is that there’s a solution. New York lawmakers in June overwhelmingly passed a bill to establish an independent, publicly accountable commission that would investigate prosecutorial misconduct. It will be the first commission of its kind in the nation if Gov. Andrew Cuomo signs the bill into law, which he has until Monday night to do.

Anyone with a passing familiarity with New York politics knows that when upstate legislators support an idea that appears to reflect criminal law reform, something is up. Something that raised the ire among upstate conservatives that fortuitously aligns with the interests of city liberals. In this case, the impetus for reform wasn’t the nightmare wrongful conviction of Jabbar Collins, but the actions of St. Lawrence County District Attorney Mary Rain.

Regardless of what gave rise to the sudden concern for fixing prosecutorial misconduct, the fact that it was sufficient to overcome the conflict between the Democratic Assembly and the Republican Senate and produce a Commission on Prosecutorial Misconduct is a remarkable.

The commission would have the power to investigate complaints against prosecutors and to compel them to testify and turn over documents. It wouldn’t be able to punish them directly, but it could issue warnings and recommend sanctions, including in extreme cases that the governor remove a prosecutor from office. The commission would consist of 11 members — two appointed by the governor, three by the state’s chief judge and the remainder by legislative leaders of both parties — and it would release the results of its investigations in an annual report.

Is this a solution to prosecutors using jail house snitches to perjure themselves, putting dirty cops eliciting false confessions on the stand, playing “hide the Brady”? Get real. It’s no more likely to be effective than the departmental grievance committees, or the Civilian Complaint Review Board. Or, as its modeled after, the Commission on Judicial Conduct, which means that there will be instances where it has a positive impact, when the proof is clear enough, when there is a loud enough call against the misconduct.

So it’s an imperfect solution? Clearly, it will fail miserably to “fix” the problem, but it will have a positive, even if palliative, impact in some cases. It might serve to ameliorate efforts to find a better, more effective fix, and will certainly be used as an example, by courts, advocates and pundits, of why there’s no need to vitiate absolute immunity for prosecutors who engage in flagrant misconduct. But given that there is little evidence of any forward movement on the immunity front, at least this is something. And something must be done.

Except Gov. Andy Cuomo hasn’t signed the bill, and his failure to do so by next Monday will result in a veto.

Mr. Cuomo has made criminal-justice reform a signature of his long career in public service; as governor he’s overseen the shuttering of more than a dozen prisons and restored voting rights to tens of thousands of New Yorkers on parole. He knows as well as anyone that prosecutorial misconduct is a serious and stubborn problem that has largely defied solution. By signing this bill, he would move New York in the right direction, as well as set an important example for the rest of the nation.

Cuomo’s has talked a good game when it comes to reform, but that’s about as far as he goes. He vetoed the gravity knife reform law. Twice. He’s done nothing to resolve the imposition of needless cash bail on poor defendants. Discovery reform has gone nowhere. He was a leader in undermining due process for accused students at New York colleges. He vetoed statewide reform for financing public defense.

This is what the New York Times considers his signature? With progressive reformers like this, you don’t need enemies. He closed a few prisons, which has more to do with there not being enough warm bodies to fill them up than any concern about reform. But hey, they’re trying to push Cuomo to sign, so there’s no benefit to calling him out for being a fair weather friend.

Except his other pals with clout are against this commission.

The bill’s only opponents are those who would be the subjects of the commission’s scrutiny — the district attorneys themselves. They say that they already abide by a stringent code of ethics and that there are plenty of ways to hold prosecutors to account, including grievance committees, private lawsuits and elections. But none of those steps has ever proved sufficient to prevent misconduct or punish repeat offenders.

The District Attorney’s arguments against the bill are the same, nonsensical contentions that give rise to why something must be done in the first place. The protections theoretically exist, as they always have, but pragmatically fail, as they always have. And there is nobody remotely familiar with the problem who doesn’t shake their head at their reactions.

So why doesn’t Cuomo call out the prosecutors, go with the bipartisan gift from the lege and sign the bill, even if the commission will not be the “something” that fixes the problem? It’s not a bad thing, even if it’s not a cure. And it’s better than nothing. Maybe Cuomo doesn’t love reform as much as the Times wants to believe he does? Or maybe Cuomo fears losing the support of prosecutors.

This should have been a no-brainer, where he signs the day after passage and throws a big press conference about how woke he is. It isn’t. He didn’t. That’s Andy Cuomo for you.

Another Commission: Will Cuomo Veto It? curated from Simple Justice