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New Commission to Regulate Prosecutorial Misconduct

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New York State is poised to become the first state in the nation to create a public commission specifically designed to investigate complaints of misconduct by prosecutors and impose discipline upon prosecutors who violate the rules. The commission is modeled after commissions on judicial conduct, which exist in every state, including New York, to regulate the conduct of judges. Given the prosecutor's unique role as a "minister of justice" who occupies a "quasi-judicial" position, the huge costs on the criminal justice system from prosecutorial misconduct, and the abject failure of other mechanisms to discipline prosecutors, it is essential to the integrity of the justice system and the public's confidence that the system functions fairly and accurately, that this commission be created.

The incidence of misconduct by prosecutors in New York and across the country is escalating. Flagrant misconduct by prosecutors has been documented in several recent high-profile cases: late Senator Ted Stevens' conviction was thrown out because of egregious misconduct by federal prosecutors; the Duke Lacrosse prosecutor Michael Nifong was disbarred and jailed because of his misconduct; and prosecutor Ken Anderson, who hid evidence that wrongfully convicted Michael Morton and sent him to jail for 25 years, also was disbarred and jailed. But these cases are the tip of the iceberg. They illustrate the terrible consequences of misconduct that occurs regularly in thousands and thousands of other cases but do not receive the same publicity.

Prosecutors claim that reports of misconduct are exaggerated, and that misconduct is the work of a few bad apples, or a handful of rogue prosecutors. Indeed, some prosecutors in New York even claim that the prosecutor commission has been created to retaliate against the Moreland Commission, which subpoenaed legislators in connection with its investigation into public corruption. But given the extent of misconduct nationally and in New York, and the fact that this proposed commission has been studied for several years, this response by prosecutors is misguided and misinformed. Indeed, in a remarkable opinion by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals, in which he was joined by several colleagues, Kozinski writes that the culture of prosecution has changed dramatically in recent years; no longer is misconduct by prosecutors the "exception" or "a rare blemish." One of the most pervasive forms of misconduct - hiding favorable evidence that could prove a defendant's innocence -- "has reached epidemic proportions." Judge Kozinski concludes, just as so many courts and commentators have previously concluded, that "some prosecutors turn a blind eye to misconduct because they're more interested in gaining a conviction than achieving a just result."

The increasing incidence of misconduct by prosecutors is not surprising. The phenomenon is closely linked to the post-9/11 legal and political culture of fear, secrecy and repression in which the power of law enforcement, especially of prosecutors, has become much more dominant and aggressive. Prosecutors see themselves almost exclusively as "Accusers and Convicters." This unsettling spectacle has replaced almost completely the prosecutor's other important function to respect the rights of everybody, including defendants, and ensure justice for all persons. In this changed climate, the goal of finding the truth becomes submerged in an overly-aggressive law enforcement culture. In this troubling period of criminal justice, prosecutors get the message that they can prosecute as hard as they want and as far as they want, and there is virtually nothing to stop them. This new climate is manifested by massive and warrantless electronic surveillance, far broader leeway for law enforcement to search, seize and get confessions, a huge increase in drug arrests and prosecutions, a huge increase in the prison population, and more and more legislatively and judicially-created weapons in the hands of prosecutors to help them get convictions.

Moreover, it is well-known that sanctions against prosecutors who commit misconduct are either inadequate or non-existent. Prosecutors who commit misconduct are hardly ever disciplined. They are almost never disciplined by their own office, rarely disciplined by federal and state disciplinary agencies, and hardly ever disciplined by the courts, even for gross and repeated acts of misconduct. Consider the case of upstate New York prosecutor Jeffrey Taylor. As documented by the New York State Criminal Defense Lawyers' Association, despite six cases in which he was harshly rebuked by state and federal courts for his misconduct, and where four of those cases were reversed because of his misconduct, Taylor has never been disciplined. Despite numerous reports of misconduct against the office of former Brooklyn County District Attorney Charles Hynes, there is no report of any prosecutor in his office being disciplined for misconduct. And when a judge actually disciplines an offending prosecutor, it becomes headline news because of its rarity, as occurred a few months ago when a Bronx judge banished a prosecutor from his courtroom for life because of her flagrant misconduct.

Errant conduct by prosecutors exacts tremendous costs. First, scarce taxpayer resources are expended on having to litigate and re-litigate cases over and over again because of a prosecutor's misconduct, which money could be much better spent making communities safer. Second, the failure of the criminal justice system to deal effectively with misconduct by prosecutors and make them accountable when they violate the law erodes public confidence in the system and undermines the public's faith in the integrity of criminal trials. And third, let's never forget the enormous pain and suffering inflicted on innocent persons, and their families, when they are subjected to a wrongful prosecution through the deliberate misconduct of a prosecutor who, in Judge Kozinski's words, wants a conviction and turns a blind eye to justice. The National Registry of Exonerations, covering cases since 1989, ranks New York State fourth nationally with 166 exonerations out of 1,367 nationally. And many, maybe most of these wrongful convictions are attributable to the prosecutor's misconduct.

To be sure, a state commission on prosecutorial conduct will not prevent a prosecutor from engaging in misconduct, particularly when so much misconduct is hidden, as when prosecutors suppress favorable evidence from the defendant. But a commission that is independent from the legal profession, and independent from the prosecutor's office, will be able to conduct investigations in a nonpartisan, non-political, and objective manner. Indeed, for 100 years prior to 1975, when the state commission on judicial conduct was created, only 23 judges were disciplined. Since 1975, 826 judges were disciplined, and 166 removed from office. That's a fairly dramatic testament to the importance of an independent disciplinary commission, and to its effectiveness. The creation of such a commission to regulate prosecutors very likely would achieve similar results. It is imperative that this bill be enacted by the state legislature, and Governor Cuomo sign it.