Sometimes very necessary reforms are wrapped in lousy legislation like the prosecutorial misconduct bill on Gov. Andrew Cuomo’s desk.
If he can’t broker an agreement to fix its considerable flaws, Cuomo must veto the bill and try to enact better laws to fix unfairness in the criminal justice system and to hold prosecutors accountable for misdeeds.
The first issue is that this bill probably would not survive a legal challenge. It would create an 11-member commission with subpoena power to investigate charges of misconduct by district attorneys, but six of the members would be selected by the State Legislature — a likely violation of the separation of powers in the state constitution. In the real world, that would give politicians the power to remove an elected district attorney if they disapproved of a case the prosecutor filed, like an official corruption case.
The bill is also too sweeping and contains no guidelines on which complaints would be considered against prosecutors and how investigations would proceed. Even worse, it would allow complaints to be filed in pending cases. That could result in unending groundless filings that would stall most criminal matters and run up bills for taxpayers.
There are better remedies to make sure defendants in the criminal justice system are treated properly and fairly. In November, Chief Judge Janet DiFiore established a rule that allowed judges to hold prosecutors in contempt for failing or delaying to turn over exculpatory evidence, one of the main factors in wrongful conviction cases. New York also needs laws that would give prosecutors specific timetables for turning over evidence to defense lawyers; this is one of the few states that doesn’t have such protocols. District attorneys have to stop blocking this reform.
And there have to be real consequences to deter bad or inept prosecutors. Too often we see defendants exonerated because prosecutors violated the rules, but never do we see consequences for the rule breakers. Fix the grievance process so bad lawyers can be disbarred quickly, and drop the shroud of secrecy around the process.
The system surely needs to be changed, but this pending bill would make it worse.