Editorial: DA review board bill is flawed

State already has a system for reviewing attorney misconduct claims. Why create another layer?

We see them on TV shows all the time:

District attorneys whose only goal is to win at all costs, to pad their record of convictions with an eye on higher office — justice and innocent defendants be damned.

So why wouldn’t the state create a commission to investigate prosecutorial misconduct and help reduce the chance of a wrongful conviction that sends an innocent man off to prison for life?

It sounds like a good idea. But the bill creating the commission (A5285/S2412), while well-meaning, has too many flaws.

For starters, it essentially duplicates a system already in place to investigate complaints against attorneys.

Each of the four state Appellate Divisions has a grievance committee comprised of attorneys and non-attorneys who review complaints against attorneys. Each committee has the power to censure, suspend or disbar attorneys.

Criminal defendants who feel they’ve been victimized by prosecutorial misconduct also can challenge their convictions through the court system.

With a new state commission, prosecutors could be forced to defend their conduct before multiple government bodies. That seems unfair and inefficient.

If, as supporters of the state commission contend, the appellate committees aren’t doing their jobs in rooting out bad attorneys and malicious prosecutors, then the solution is to review and revamp the existing committees, not create a whole new costly bureaucracy.

Another reason to oppose the bill is the political makeup. Eight of its 11 members would be appointed by either the governor or a member of the Legislature. The remaining three would be named by the chief justice of the Court of Appeals.

Who do prosecutors prosecute? Criminals. And where can you often find criminals? In state government.

Such a commission could have a chill effect on prosecutors who might fear prosecuting a member of a body that also reviews their conduct.

Another concern is the constitutionality of the law. The District Attorneys Association of the State of New York, which naturally is opposed to the commission, claims the state constitution gives the governor the power to remove a district attorney accused of misconduct. A constitutional challenge to the law, even if it’s unsuccessful, would be costly and time-consuming.

The last problem we have is that other than decisions, all other commission proceedings and documents would be confidential. How will the public know if the commission is doing its job well? 

This  legislation just has too many issues.

Gov. Andrew Cuomo should veto it and recommend changes to the existing system of prosecutorial review instead.

Categories: Editorial, Opinion


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