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NY Plan To Police Prosecutors Enters Uncharted Territory

By Andrew Strickler | November 4, 2018, 8:02 PM EST

New York State Criminal court at 100 Centre St. in New York City. (AP)


Shawn Lawrence’s arrest and conviction in a shooting death outside a Long Island housing complex cost him a good job in an auto shop, time with his girlfriend, and the chance to see the birth of his son.


Today, after five years behind bars and some 11 months since his release for what a state judge called pervasive misconduct by a Suffolk County prosecutor, Lawrence is married and "just trying to make up lost time with his son," said his attorney, Julia Kuan.

"But nobody who has been wrongfully convicted and goes through incarceration like this doesn’t come out damaged," she said.

Lawrence’s overturned conviction — one of five such cases upended by revelations that homicide prosecutor Glenn Kurtzrock withheld evidence from the defense — also showcases what Kuan and others call a clear need to better police line-crossing prosecutors. While he was forced to resign, Kurtzrock is now working as a criminal defense attorney with a clean public disciplinary record.

In the face of such ethical breaches, New York is moving forward with a new commission to investigate misconduct by prosecutors, the first of its kind in the nation. New York Gov. Andrew Cuomo in August signed the bill creating the oversight commission, which has already drawn a lawsuit from district attorneys ahead of its implementation.

The yet-to-be-formed panel has a tough road ahead in proving its worth and navigating opposition from district attorneys, but with careful work the opportunity is there to make a difference and prevent the kind of injustice experienced by Lawrence, according to experts.

To become a real watchdog over the state's 62 district attorney offices, the commission will have to do more than survive the district attorneys' arguments in the litigation that the new law threatens their effectiveness and independence. It will need top-notch members and must choose investigative targets wisely and respond quickly, and carefully, to allegations of ethical breaches by prosecutors, experts suggested.

Pace University law professor Bennett Gershman, an expert on prosecutorial ethics, said the sheer volume of data available on wrongful convictions in New York and elsewhere means the commission can concentrate on creating a solid process rather than justifying its need.

"Anyone who has looked at this issue knows the New York discipline system does not work in regards to prosecutors, even in cases of egregious misconduct," Gershman said. "Legitimate cases can be brought, due process for prosecutors can be respected, and this can be done in a way that doesn't interfere with an ongoing case."

Becoming An Effective Watchdog

Without any model in the U.S. for a specialized prosecutor watchdog, criminal justice reform advocates in New York, backed by some vocal members of the defense bar, have long agitated for some kind of check on misconduct by state prosecutors.


Among a number of recent high-profile cases in New York was Wayne Martin, a Brooklyn man sentenced to life without parole after being convicted of killing two people during a robbery.

In 2016, then-Brooklyn District Attorney Ken Thompson asked for the conviction to be thrown out, largely due to what he called an "utter failure" by a prosecutor to turn over highly exculpatory witness reports to Martin's defense lawyer.

This year, a state judge threw out the murder conviction of a Bronx man, Larry McKee, after an internal investigation by the district attorney's office revealed that key witness statements were never turned over to the defense.

According to the National Registry of Exonerations, New York ranks only behind Texas in the total number of criminal defendant exonerations since 1987, with 268. Of those, 170 were based at least in part on some kind of official misconduct or abuse of the judicial system by police, prosecutors or other government officials, according to the registry.

Other research, including from a New York state bar report from 2009 on wrongful convictions, indicates that formal discipline against prosecutors found to have committed Brady violations — which involve the government's duty to turn over certain evidence in criminal cases — or other kinds of misconduct that breach state ethics rules are exceedingly rare.

"New York's court-run disciplinary system operates in secret and does not appear to be any kind of deterrent to prosecutors who bend and break rules to obtain convictions," said Human Rights Watch in a June letter to Cuomo in support of creating the commission.

AMENDMENTS AHEAD


Under a deal between the governor and legislators to fix “structural” problems in the commission bill, amendments expected to be made in the next legislative session starting in January include:

  • A requirement for the chief justice of the Court of Appeals to appoint active judges to be changed to a requirement for appointees to be retired judges.

  • Increased releases for prisoners who are terminally ill.

  • A shift in responsibility from the Court of Appeals to review commission decisions to the Appellate Division.

  • Strengthening the confidentiality of prosecutor case files.

  • Shifting some appointments now in the hands of legislators to the governor, giving the executive branch the majority.
Once up and running, the 11-member commission, modeled after the state judicial conduct commission, will have broad powers to initiate investigations of prosecutors, compel testimony, subpoena records and grant immunity to witnesses. It can also determine that a prosecutor be admonished or censured, or recommend to the governor that a prosecutor be removed for cause from office.

Considering the wide range of that authority, legal ethics experts said the constitution of the group — and particularly the inclusion of well-regarded former prosecutors and lawyers with deep trial experience — will be a key factor in building credibility and getting some buy-in from district attorneys.

Peter Joy of the Washington University School of Law in St. Louis, who has written extensively about prosecutor conduct, said a functioning watchdog should respond quickly to credible complaints or referrals from judges.

That would contrast with the common — and, he said, deserved — criticism about the glacial pace of many state attorney disciplinary systems.

"The concept of 'justice delayed is justice denied' applies here," he said. "If there is someone who does something truly egregious and the commission moves quickly, it will demonstrate to the public it can do something the normal disciplinary process might take many months or years to address, if at all."

Prosecutors Push Back

The timing of investigations and subpoenas, and the possibility of interference amid active prosecutions, was just one of many potential risks raised by New York district attorneys.


Prosecutors have also raised concerns that defendants could file spurious complaints with the commission mid-case in hopes that members will call for a hearing or otherwise intervene, potentially slowing or even derailing a prosecution.

In heated opposition to the bill, the state District Attorneys Association has also characterized the commission's oversight authority as duplicative of the state's existing court-led disciplinary system, and a constitutional overreach giving legislatures too much authority over prosecutors in the executive branch.

As it said it would before the bill was signed, the group on Oct. 17 also filed a suit in New York Supreme Court seeking to block the law from going into effect, calling the commission unconstitutional and a threat to district attorney independence.

In the suit, district attorneys contend that the new law would make such sweeping changes to New York's prosecutorial regime that it essentially "seeks to achieve by statute what can only be accomplished through constitutional amendment."

"If the law is allowed to stand, the independence of district attorneys will be threatened, the role of the judiciary impermissibly altered, the performance of law enforcement duties chilled, the due process and equal protection rights of prosecutors violated, the entitlement of voters to a district attorney responsive to their needs undermined, and the integrity of our constitutional system compromised," they said.

Bennet told Law360 he saw no reason even an aggressive commission would want to intervene in active cases.

"That's a scare tactic by the DAs; that would be like interfering with the discretion of the judge, and it's just never going to happen," he said. "If a prosecutor lies about an informant or withholds evidence, they're still going to wait until the case is over before proceeding with an investigation."

Legal ethics expert Bruce Green of Fordham Law School noted that the law does not limit the group to investigating allegations of legal or conduct violations, thus giving the commission power to determine what patterns of behavior or grey-area actions might fall under its purview.

The commission will thus have to answer the "philosophical" question of whether to bring cases stemming from borderline conduct — a prosecutor mischaracterizing a piece of evidence to a jury during trial summations, for example — or focus on serial offenders or only the most serious breaches.

But that direction will also be dictated in part by budgets, and whether the commission will have the staff needed to investigate a wide range of less serious allegations against prosecutors.

"Right now, prosecutors can engage in lots of kinds of low-level misconduct and essentially get a pass, or maybe a raised eyebrow or finger-wagging from a judge," Green said. "So one possibility here is that over time, this commission can develop a body of writing about what behavior is or is not acceptable for prosecutors, even if it doesn't clearly violate a conduct rule."

--Additional reporting by Ryan Boysen. Editing by Brian Baresch.

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