August 17, 2018

New York Law Journal

At least three candidates for state attorney general said Friday they support the goal of a commission to investigate prosecutorial misconduct, but acknowledge a bill creating one may need changes to meet the approval of Gov. Andrew Cuomo.

The bill has faced increased scrutiny in recent days from prosecutors who are mounting a legal challenge, which has been fueled by a memo from Attorney General Barbara Underwood’s counsel warning the legislation may not survive judicial review.

Leecia Eve’s position mirrors what general counsel Leslie Dubeck said in that memo, a spokesman said.
Eve, a Democrat, previously served in the Cuomo administration as an economic development official, and was also counsel to Hillary Clinton and Joseph Biden when they were in the U.S. Senate. She’s currently the vice president of state government affairs for Verizon in New York, New Jersey and Connecticut.

“Leecia fully supports the goal of the legislation but shares Attorney General Underwood’s [counsel’s] concerns about the constitutionality of some of the provisions in this bill,” said Peter Kauffmann, Eve’s spokesman.

Underwood’s office also supports the goal of the legislation, which is to provide more oversight of misconduct by the state’s district attorneys and their assistants. The bill would create an 11-member commission of judges, prosecutors and defense attorneys to receive and investigate complaints of misconduct by prosecutors.

The bill may need significant changes to survive judicial review, according to Dubeck’s memo this week. She wrote to Cuomo’s counsel, Alphonso David, about possible challenges, including separation of powers issues, the judiciary’s role in the commission, and the function of the state’s prosecutors.

Marvin Schechter, a defense attorney and past president of the New York State Association of Criminal Defense Lawyers, disagreed with Dubeck’s memo. The group is a main proponent of the legislation.

“It’s almost like someone said to Ms. Underwood and Ms. Dubeck to go through the New York state Constitution and wherever you can find a provision that is seemingly inconsistent with this commission, cite it and call it separation of powers,” Schecter said.

Rep. Sean Patrick Maloney, another Democrat running in the primary, said on Friday that Dubeck’s concerns should be acknowledged, but that Cuomo and the Legislature should come to an agreement on changes to the bill before Monday’s deadline. He supports the commission.

“This reform is a critical move toward improving our justice system, preventing wrongful convictions, and making sure that our prosecutors are following the law,” Maloney said. “That said, Attorney General Underwood’s office has examined the bill and raised real concerns. Ultimately the law must survive to be successful and not just symbolic, so the governor and the Legislature need to get back to work, fix this immediately, and get this bill passed.”

New York City Public Advocate Letitia James said much of the same. She wants Cuomo to sign the bill, and pushed for a three-way agreement on a chapter amendment. That’s when the governor signs the bill with a promise from the Legislature to amend it at the next earliest opportunity.

“I strongly support a prosecutorial misconduct commission,” James said. “This is a real opportunity to provide needed accountability in our criminal justice system—and I urge the governor, the Senate, and the Assembly to come to an agreement on changes in the coming days and enact this bill. We cannot move backwards, and we cannot accept the status quo any longer.”

James endorsed the commission earlier this month as part of her criminal justice platform. She said she would defend the constitutionality of the legislation as attorney general.

Albany County District Attorney David Soares, who is president of the District Attorneys Association of the State of New York, told the group’s members in a letter this week that they are preparing litigation against the commission. They have already begun drafting a complaint in anticipation of Cuomo’s approval.

Soares also suggested in the letter that prosecutors should decline to serve on the commission until litigation surrounding its constitutionality is resolved. He said serving on a commission that may be considered unlawful could breach their duties as law enforcement officers.

That would leave the commission essentially inoperable since four of its 11 members are required by statute to be prosecutors. It’s scheduled to become operational in January, with a price tag of $5.5 million.

DAASNY has opposed the bill since it was introduced in 2015. It had its own concerns about the constitutionality of the legislation long before Dubeck’s memo. It has suggested strengthening the state’s grievance committees instead of creating a new commission.

Each Appellate Division has a grievance committee that reviews complaints against attorneys in New York, and has the power to censure, suspend or disbar them. Those committees are composed of attorneys and nonattorneys, and appointed by the court.

Keith Wofford, the Republican candidate for attorney general, sides with DAASNY. He said Dubeck’s concerns have legs, and that the state already has a process for disciplining prosecutors.

“I agree with [the counsel to] Acting Attorney General Underwood that the proposed commission is legally suspect on separation of powers grounds,” Wofford said. “Procedures already exist to discipline district attorneys who abuse their office. Currently, the governor can remove the district attorneys after an investigation, and if their conduct is found to be egregious they can be subject to discipline by the Grievance Review Committee, or even disbarment.”

Supporters of the bill have argued that those grievance committees are not effective or transparent enough to address prosecutorial misconduct. The committees handle complaints against all attorneys in the state and their decisions are not easily available to the public.

The commission would bring those decisions to light and help deter future misconduct by prosecutors, supporters argue. They predict that will reduce the number of wrongful convictions and exonerations in New York.

A spokeswoman for Zephyr Teachout did not respond to a request for the candidate’s position on the commission following Dubeck’s memo.