In Part I of this two-part column, we examined the backdrop to the establishment late last year of the New York State Commission on Prosecutorial Conduct (the Commission), as well as the scope of the new Commission's authority. Today's Part II examines the makeup of the Commission and its staff and the conduct of Commission proceedings, including its investigatory powers.

The Commission and Its Staff

If upheld constitutionally, the Commission will have 11 members, who are to be appointed by the Governor (four), the Chief Judge (three), and the four legislative leaders (one each). Of the 11 members, 10 are required to be either former or current public defenders or prosecutors (evenly split, two of whom must also be former judges), and the last is required to be a law professor or dean with “significant criminal law experience.” Judiciary Law §499-c(1)(a), (b), (c). This type of micromanaging of commission membership by the Legislature is not new in New York (e.g., N.Y. Const. Art. 6 §22(b) (Commission on Judicial Conduct); Exec. Law §94(2) (Joint Commission on Public Ethics)), but this is the first time that the career paths of commissioners are being specified in such a binary way. The rationale behind it is likely a lack of trust that one “side” or another will be fair to prosecutors or to complainants, and ultimately speaks to a bigger problem in our criminal justice system: the ever-growing divide between how state prosecutors and public defenders view the world. See, e.g., New York State Bar Association, Report of the Task Force on Criminal Discovery (Jan. 30, 2015) (the only three prosecutors on 22-member task force dissent from recommendations for drastically expanding criminal discovery). No doubt, a commission of this magnitude could also benefit from more diverse points of view within the Bar, or even (as is the case with Grievance Committees) include laypeople.

A related provision requires disqualification of a prosecutor-member of the Commission when someone from the same office is the subject of complaint. Judiciary Law §499-c(4). Although that is a sensible precaution to avoid the appearance of impropriety, no similar requirement is imposed on a public defender-member from that same county. If the prosecutor is to recuse, it is hard to see why that same appearance would not apply to the public defender.

Also related is the provision that spells out the requirements for the Administrator—the full-time staff member responsible for pushing forward the Commission's agenda—which specifically precludes the appointment of a former prosecutor. Judiciary Law §499-c(7). The Sponsor's Memorandum does not mention the reason for this provision, but it appears to reflect a presumption that any current or former prosecutor will favor prosecutors. This will come as a surprise to the state's former and current prosecutors, who have come to internalize the maxim that they should prosecute cases “without fear or favor.” It also sets the Commission apart from bodies such as the Commission on Judicial Conduct, the Grievance Committees, the Joint Commission on Public Ethics, and other regulatory and enforcement bodies that collectively employ dozens of former Assistant District Attorneys (ADAs) throughout the state. And the Commission on Judicial Conduct has no similar prohibition regarding retired judges. By contrast, public defenders—who will in most instances be involved in the cases underlying matters that come before the Commission—apparently can be expected to be impartial. Here, what's good for the goose is decidedly not good for the gander.

Notably, the updated bill (the Bill), if signed, would add an additional requirement that the Administrator not be appointed unless the Commission members appointed by the Speaker of the Assembly and the Temporary President of the Senate (as well as a gubernatorial appointee) have approved the appointment. This suggests the Legislature's desire that it maintain some level of control over a power center within the Commission. When considering this provision, it is important to remember that one key argument against the establishment of the Commission was that it would impair the independence of prosecutors. Faced with the prospect of a potentially career-ending accusation, prosecutors will be tempted to pull their punches when an investigation calls for aggressive (but nonetheless legal and ethical) action. This provision is destined to worsen that problem by sending the unmistakable message that the Legislature is watching the conduct of individual prosecutors.

Finally, the definition of “Prosecutor” does not include the New York State Attorney General, any prosecutor working under her, the prosecutors in the Justice Center for the Protection of People with Special Needs, Special District Attorneys appointed pursuant to the County Law, or the Assistant County Attorneys and Assistant Corporation Counsels that handle juvenile proceedings in Family Court. Judiciary Law §499-b(2); County Law §701. The genesis of this omission is unclear, but it is difficult not to conclude that it was a political choice. After all, no one has made the case that whatever “misconduct” exists among prosecutors is limited to one type of prosecutor over another. But the effect of this distinction in law will be to make the thousands of ADAs in this state feel needlessly singled out.

Conduct of Commission Proceedings

A number of provisions governing the conduct of proceedings could become an undue burden on overworked prosecutors, and could easily disrupt the operations of the prosecutor's office and pursuit of justice—not only in the case at issue, but also in other cases the prosecutor would be neglecting. Perhaps the most troubling is that complaints to the Commission need not be sworn. Judiciary Law §499-f(1). Although the entire Commission may direct that a complaint be verified under oath, it is not required to. Id.; see CPLR 1020. One can easily imagine explosive allegations in an unsworn letter that are facially sufficient but unfounded, which under Article 15-A the Commission would have no choice but to investigate. Judiciary Law §499-f(1). It may seem quaint in our cynical modern age, but oaths still matter. See United States v. Daugerdas, 867 F. Supp. 2d 445, 484 (S.D.N.Y. 2012) (“Oaths are sacred and their origins ancient. They acted as a self-curse, and those who swore to one believed dire consequences flowed from its violation. That belief undergirded the oath's effectiveness and validated its purpose.”). Not only do they expose the complainant to criminal liability for perjury, but they also serve an important deterrent effect, both legal and moral. (Although falsely-filed written statements can be prosecuted under Penal Law §§175.30 and 175.35, the term “perjury” carries a stronger condemnation, as does violating an oath.)

More problematic is that, sworn or not, the Commission is empowered to investigate complaints while criminal investigations and prosecutions are ongoing. The intrusive effect of this cannot be overstated. Criminal investigations in New York are highly complex matters involving exacting rules that govern the Grand Jury process, undercover investigations, electronic eavesdropping, use of child witnesses, and other sensitive areas. It would be extremely disruptive to an investigation to depose the prosecutor, subpoena documents, conduct a hearing, and initiate an appellate process that involves all four Presiding Justices of the Appellate Division and, potentially, the Governor. In my own experience as a supervisor of prosecutors who were sometimes the subject of complaints, every disciplinary allegation or civil lawsuit—frivolous or not—took over the prosecutor's thoughts and preoccupations until it was resolved. It is no exaggeration to say that those professionals could think of little else until they were exonerated.

As anyone who has worked at an agency that receives complaints from the public knows all too well, every meritorious complaint will have scores of frivolous (or otherwise non-actionable) counterparts. In the case of this Commission, that will lead to obvious negative effects on the administration of justice. Most prosecutors chose their profession because they want to do “the right thing.” But their job, by its nature, makes many people quite unhappy with them. These include not just defendants, but also civilian witnesses, complaining witnesses, advocacy groups, relatives and friends of defendants, and the myriad other actors who interact with prosecutors. In the words of former Erie County District Attorney (now Supreme Court Justice) Frank A. Sedita III opposing the establishment of a commission: “With nothing to lose and everything to gain, anyone—including murderers, rapists, domestic violence offenders, conspiracy theorists, and blog trolls—can file an unsworn complaint, thus setting in motion a parallel proceeding in which a prosecutor … must defend herself from any accusation imaginable.”

Article 15-A seeks to ameliorate this concern to some extent by permitting a stay if the prosecutor establishes that the Commission investigation will “substantially interfere” with the underlying criminal investigation or prosecution. Judiciary Law §499-d(1). Faced with criticism from District Attorneys (DAs) that this was insufficient, the Bill adds a new provision mandating that “in no event” will the Commission's investigation start before the earlier of the filing of an accusatory instrument or one year after commencement of the commission of the underlying crime. Id. This means, for instance, that if a defendant or complainant makes a facially sufficient unsworn complaint, an investigation is allowed to go forward during the pendency of a criminal case, or during an investigation if the investigation lasts more than a year. The “commencement of the crime” aspect makes it more likely that complainants can cause mischief in more complex cases. Rare is the public corruption, gang, serious narcotics trafficking, or cold murder case that is filed sooner than one year from the occurrence of the beginning of the crime. Indeed, some investigations do not even begin until more than a year after the beginning of the crime under investigation.

Specific Investigatory Powers

A number of the Commission's specific investigatory powers could cause predictable problems and prove disruptive to ongoing or future criminal matters. First, the Commission has administrative subpoena power, but without statutory limitation on what kinds of records may be subpoenaed. Judiciary Law §499-d(1). Prosecutors' offices, of course, hold extremely sensitive documents, including grand jury testimony, the results of electronic eavesdropping, child protective service records, and the contents of cellular telephones searched by court order. Although the prosecuting agency may move to quash such a subpoena pursuant to CPLR 2304, there is no guarantee that sensitive documents would be exempt from disclosure.

Second, although the Commission's hearings are not themselves public, Article 15-A creates an avenue for their substance to become public even if the prosecutor is not ultimately disciplined. The threshold for conducting a full-blown hearing is not specified, and one can be conducted just because “the Commission determines that a hearing is warranted.” Judiciary Law §499-f(4). The Commission is permitted to allow the complainant to attend the hearing, and although the Commission and its staff are under a duty of confidentiality, no such duty applies to the complainant. Id. This is in sharp contrast to the confidentiality rules that apply to the Grievance Committees, and therefore govern all lawyers in the state who are not DAs or ADAs. In an era where sensational allegations, even those that are unproven or merit only minor punishment, have ruinous career consequences, it would seem reckless to allow complainants to publicize ongoing proceedings.

Compounding this lack of confidentiality at the hearing is the requirement that the entire record of the Commission's proceedings be made public if the Commission has determined that a prosecutor should be admonished, censured, or removed. This takes place before the prosecutor has the opportunity to contest the determination before the Presiding Justices of the Appellate Division. In the existing attorney grievance process, by contrast, an admonition is private discipline, 22 N.Y.C.R.R. §1240.2(b), whereas censure is public discipline not requiring suspension. Id.; Judiciary Law §90(2). Thus, the requirement would single out DAs and ADAs as the only lawyers in the state whose disciplinary cases become public before final discipline has been imposed.

Finally, Article 15-A gives the Commission, whenever it “deems it necessary and proper,” the power to confer full transactional immunity on any witness that appears before it. Judiciary Law §499-d(2); see C.P.L. §§50.20; 50.10(1). The topic of transactional immunity, particularly before the grand jury, has been controversial for decades. Going further than the requirements of the Fifth Amendment, New York grants full transactional immunity rather than use immunity. For many years, this led to miscarriages of justice when prosecutors unwittingly gave full immunity to people called as mere witnesses. Today, it is notable for the chilling effect it has on prosecutors' willingness to exercise the investigative powers of the grand jury to full effect, for fear of unwittingly immunizing someone for serious crimes. Report of The New York State White Collar Crime Task Force, at 28 (September 2013).

Against that backdrop, granting the power of transactional immunity to this Commission seems likely to have unintended consequences. Unlike prosecutors, administrative agencies are not attuned to the many potential negative ramifications of immunity grants on criminal investigations and prosecutions. By definition, cases before this Commission will involve criminal defendants, making it that much riskier to grant immunity without the consent of a prosecutor. Although the Commission on Judicial Conduct also has this power, that commission deals with underlying criminal cases far less often. To be sure, Article 15-A includes a 48-hour notice requirement to the Attorney General and the “appropriate District Attorney,” Judiciary Law §499-d(2), but that is an inadequate standard that will inevitably cause problems. For example, if a defendant makes claims about his prosecutor in New York County and the Commission wishes to grant that person immunity, it would notify the New York County District Attorney. But if unbeknownst to the Commission and the DA, that same defendant is under investigation in Westchester County for a similar course of dealing, the Westchester DA will forever be precluded from prosecuting him.

Conclusion

This article did not cover every aspect of Article 15-A, but instead sought to discuss the most salient issues. As the Bill has not yet reached the Governor's desk (and even after it does), it is not too late for changes to be made that will benefit the public.

Daniel R. Alonso is managing director and general counsel at Exiger. A former federal prosecutor, he also served on the New York State Commission on Public Integrity, and most recently served as the Chief Assistant District Attorney in Manhattan from 2010 until 2014.