New York Prosecutors’ Ethics To Be Overseen By New Commission?

New York is poised to become the first state in the nation to establish a commission that oversees complaints against prosecutors.  That’s if Governor Andrew Cuomo signs the bill into law today.

Defense organizations, social justice services, and the state assembly are all in favor. They see it as a way to rein in the power of prosecutors and save the state money on wrongful convictions.

Prosecutors and police, however, oppose the bill, believing it’s a waste of money and just a way for disgruntled defendants to malign them.  That’s always a risk with any system of redress or appeal, but in this case, a commission to oversee the ethics of prosecutors is not only a good idea, but a necessity to even out the stranglehold prosecutors have over the criminal justice system.

Some examples:

• Prosecutors, alone, determine who gets indicted and for what.
• Prosecutors, alone, determine whether a plea offer should be made and, in those cases, the sentence the defendant should receive.
• Prosecutors, alone, determine what material is exculpatory and therefore must be provided to defense.
• Prosecutors enjoy absolute civil immunity from anything they do involving the prosecution and investigation of a crime.

The criminal justice system is meant to be a delicate balance among the judiciary, defense bar and the prosecution. But in reality it’s the prosecutors who hold the lion’s share of the power.

Let’s start with the power of indictment and plea bargaining. Most criminal cases do not go to trial.  The vast majority, over 90 percent, end with a plea.  But if the defendant wants to plead to something less than what he’s been indicted for, the prosecutor must make that offer or the defendant has to plea to the top count of the indictment.

Sounds fair enough except that many prosecutor’s offices (the Manhattan District Attorney’s Office, in particular) make it a habit to indict defendants for the worst crime possible even if the facts are barely enough to prove it.  For example, by indicting a defendant for burglary instead of petit larceny when all he did was shoplift then push a security guard out of the way, the defendant is stuck with a violent-felony charge.  The prosecutor then holds that charge over his head to force him to go to trial, or to rat on a friend to get a better deal, or to waive his right to appeal.

Next, prosecutors control all the evidence in the case.  It is only their word that no exculpatory evidence exists, or that they’ve given defense counsel all the evidence collected.  Problem is, some prosecutors (although not many) downright lie about what they’ve got, while others (even those well-meaning) don’t interpret the word “exculpatory” the same way that defense attorneys do. For example, a statement that a different person did the crime should be considered “exculpatory.”  But if they don’t believe that person — say they can’t corroborate the statement, or just deep-six it in the file so no one can find it — the defense attorney might never know about it or not get word of it till the trial starts.  This further hamstrings the defense counsel’s preparation of the case, or prevents a realistic discussion with the defendant about whether he should plead guilty or go forward.

Finally, prosecutorial immunity from civil damages virtually protects prosecutors from being held responsible for anything from negligence in investigating a case to maliciously hiding materials.  In the 2015 case of People v. Velasco-Palacios in California, a prosecutor was accused of “outrageous government misconduct” by a California appellate court. Prosecutor Robert Murray produced a translated version of defendant’s statement to police but added one thing — a fraudulent confession.  He made it up completely.  (When the defense attorney was given an audiotape of the statement it mysteriously ended before the confession. That’s because it never happened.) The case got dismissed, but did Murray face any consequences?  Not only did he face no civil monetary punishment, but he actually continued working as a prosecutor.

Here’s the thing. While prosecutors are sworn to uphold the law and do what’s just, in reality, like most human beings, they often think they’re right, that the defendant is guilty and deserves to be behind bars, and that they need to keep him there.  They also just like to win.

The honest ones (who in my experience outnumber the bad apples or those with poor judgment)  have nothing to worry about if the oversight commission is formed.

If it keeps everyone (including the heads of the office who make the policy decisions on over-indicting perps) on their toes — what’s wrong with that?

The commission’s set to be balanced — an equal number of criminal defense attorneys and prosecutors as well as two representatives from the judiciary.  Sure, there may be some false claims made, but like most false claims, they’ll likely be weeded out pretty quickly.  It’s the serious claims that need a place to be heard, and this sounds like a good place to start.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

New York Prosecutors’ Ethics To Be Overseen By New Commission? curated from Above the Law