The case against a Commission on Prosecutorial Conduct

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Prosecutors fulfill an essential role in the administration of justice by removing dangerous criminals from society and providing redress for victims, as well as providing treatment options and alternatives to sentencing. The overwhelming majority perform their jobs ethically, effectively and without prejudice. A small number of high profile wrongful convictions, mostly from decades ago, brought to light in recent years have prompted some lawmakers to propose a radical solution that is still in search of a problem.

Companion bills currently pending in both houses of the New York state Legislature (S. 24-B in the Senate and A. 1131-B in the Assembly) would establish a new oversight body called the Commission on Prosecutorial Conduct, whose purpose would be to investigate allegations of wrongdoing on the part of prosecutors and those acting under their direction. Presumably, this legislation is a well-intentioned attempt to root out bad actors that abuse the powers of their office to obtain criminal convictions. However, the unintended consequences of the commission becoming law are so destructive that it has the potential to upend the criminal justice system.

If you think that sounds a bit overblown, it isn’t. The proposed law prescribes no specific conditions for a complaint before the Commission on Prosecutorial Conduct, and establishes no burden of proof for complainants. There isn’t even a requirement for allegations to be sworn under oath. That means anyone, regardless of standing, could file a complaint against any prosecutor for virtually any reason, no matter how baseless and unfounded, with no consequences should the complaint be disproven.

And once a complaint is made, the proposed law would bestow the commission with extraordinarily broad powers to formally probe allegations under force of subpoena. The commission would be empowered to grant immunity to defendants who make complaints and could force the subjects of inquiries to testify against themselves. These subjects could include district attorneys, assistant district attorneys and others acting under supervision of prosecutors, including police officers who could be called as witnesses or could be the subjects of complaints themselves.

If the commission is enacted, criminal cases already undergoing prosecution will see the most disruption, as the proposed law astonishingly makes no exemption for pending criminal proceedings. Think about that. This law would allow a defendant in a criminal case – a rape, an assault, a domestic violence case, a homicide – to bring a complaint against the prosecutor while the matter is still being tried. Effectively, the Commission on Prosecutorial Conduct opens a backdoor into the system, providing criminal defendants and their attorneys a new and unprecedented tool to sabotage a prosecution by establishing a parallel investigation into those trying the case. What was created as a mechanism to deal with prosecutorial misconduct will instead undermine prosecutions by delaying or, at worst, miscarrying justice.

The justification for establishing this free-for-all is a faulty premise that out-of-control prosecutors are running rampant, proliferating large numbers of wrongful convictions. That simply is not true. Despite some recent headlines, willful prosecutorial misconduct is exceedingly rare. The New York State Bar Association’s Task Force on Wrongful Convictions reported on 53 wrongful convictions from 1964 through 2009, out of approximately 1.3 million convictions in the state over that same time period. And while even one wrongful conviction is intolerable, according to the Task Force Report, many resulted from factors other than prosecutorial misconduct, including mistaken identifications, false confessions and ineffective assistance of counsel.  

We also know that most wrongful convictions stem from cases tried decades ago in an era when attitudes about convictions were different. When I began my career as a prosecutor 37 years ago during a time of higher crime rates, the focus was on arrests, prosecutions, and convictions. The hallmark of a good district attorney’s office was having the highest conviction rate. Over the years that practice has shifted dramatically. Now, much of our resources, in collaboration with social service agencies and nonprofits, are spent on alternatives to prosecution – drug courts and mental health courts, for example – in an effort to exit first-time offenders from the system without the stigma of a criminal conviction.

However infrequent, it is unfortunate that there are prosecutors who engage in misconduct. But there are currently an array of procedural mechanisms already in place that serve as a check against instances of prosecutorial misconduct. The Appellate Divisions of State Supreme Court and the Disciplinary and Grievance Committees govern the conduct of attorneys, including prosecutors. The committees conduct investigations on behalf of the Courts and have the power to publicly censure, suspend or disbar a prosecuting attorney.

Prosecutors have also taken numerous steps to make sure they get it right the first time. In 2009, the District Attorneys Association of the State of New York formed a Committee for the Fair and Ethical Administration of Justice, which, through its Best Practices Subcommittee, has worked to improve the criminal justice system in New York. Examples include protocols to prevent misidentifications and unreliable confessions, case screening guidelines and published a manual of ethics for prosecutors entitled “The Right Thing,” which is distributed to prosecutors statewide and was praised as a model by former U.S. Attorney General Eric Holder. Prosecutors around the country are following the New York model.

For good reason, district attorneys across the state are unanimous in their opposition to the proposed Commission on Prosecutorial Conduct. While its aims are laudatory, creating yet another layer of review is unnecessary. Moreover, it will impede the efficient administration of justice and adversely affect public safety by subjecting already busy prosecutors to investigations and hearings at the whim of a disgruntled defendant, victim, or other member of the public.

Thomas Zugibe is the Rockland County district attorney and president of the District Attorneys Association of the State of New York.