June 19, 2018

Assembly Passes Bill to Promote Prosecutorial Accountability

Assembly Speaker Carl Heastie and Assemblymember Nick Perry today announced the passage of legislation to establish an independent state commission on prosecutorial conduct (A.5285-C)

"Prosecutors have one of the most important roles in our society," said Heastie. "Every day their decisions impact the life and liberty of New Yorkers across this state and it is critical that their actions be held to the highest standards of public accountability."

"This legislation will cure the decades-long call for greater accountability from prosecutors," said Assemblymember Perry. "The lack of oversight has had many negative consequences for those whose freedom was unjustly forfeited and whose reputations suffered irreparable damage due to wrongful conviction, prosecutorial bias or other misconduct. With the passage of this bill we can finally assure New Yorkers that justice is pursued in an environment and spirit of fairness."

Today's legislation would create an eleven-member independent commission of legal professionals to be appointed by the governor, legislature and chief judge, to investigate and, when appropriate, recommend sanctions for prosecutors found to have engaged in misconduct in the performance of their duties. The bill directs that the membership be comprised of an equal number of prosecutors and defense attorneys. It provides subpoena authority and other powers to enable the commission to receive, initiate, investigate, and hear complaints relating to prosecutorial conduct, qualifications, or fitness to perform, and to secure the disposition of these complaints.

The proposal establishes confidentiality standards for the commission as well as sanctions for violations. Additionally, it provides important due process protections for prosecutors including discovery, advanced notice of hearings, and the ability to present evidence and witnesses and cross-examine witnesses. It also provides for review of the commission's recommendations by the Court of Appeals and affirms the governor's constitutional authority to remove prosecutors and district attorneys found responsible for misconduct. Finally, the bill requires annual reports to be submitted to the governor, legislature and chief judge of the Court of Appeals.

In recent years there have been a number of high profile exonerations of people who were wrongfully convicted of serious crimes in New York State. It has been previously reported by the NYS Bar Association's Task Force on Wrongful Convictions that prosecutorial misconduct is one of the primary reasons for wrongful convictions. There is no formal process in place to hold prosecutors accountable for violating their legal and ethical duties. Most often, prosecutorial misconduct will result in a new trial, costing time and resources to courts, district attorneys' offices and the defense bar. A relatively small number of exonerated persons have been successful in seeking justice in the courts and financial settlements for the devastating hardships they have endured. On June 13, 2018, the international advocacy organization, Human Rights Watch, issued a public letter to Governor Andrew Cuomo supporting the passage of the bill.