Previously, I addressed aspects of the proposed rule in my public comment,
- Part I - lack of transparency in the composition or operation of the "Task Force";
- Part II - that the proposal is trying to usurp the authority of the New York State Legislature;
- Part III - that the Task Force includes those who cause wrongful convictions or are interested in them, and does not include representatives of the victims of wrongful convictions;
- Part IV - that disciplinary prosecution of disciplinary prosecutors is a joke, and
- Part V - an update on the transparency blog, showing that New York Unified Court System and the Task Force are NOT advertising its proposed rule - or that the deadline for public comment on the rule is TOMORROW.
This Part VI is showing that disciplinary prosecution of misconduct of criminal prosecutors is also a joke - and that the rule on "standing orders" of discovery in criminal cases will make disciplinary prosecutors even less amenable to discipline than they are now, and will increase wrongful convictions.
Prosecutorial misconduct is prominent in the "discovery order" proposal of the Task Force, as it is No. 1 reason why the proposal is even introduced - to instill into the public that, unless a court says a prosecutor committed misconduct, the public should not deem any conduct by prosecutors a misconduct.
Apparently, members of the public and the media cannot have their own mind as to what they observe and what they read about in court documents.
Yet, while the Task Force wants, very obviously, to suppress "wrongful perception" by the public and the media of what is or is not prosecutorial misconduct, it is interesting that in 2015 there was actual testimony in front of New York Commission for Attorney Discipline - where a person represented the wrongfully convicted (those who are not represented in the Task Force created supposedly to fight wrongful convictions), testified that
- defense attorneys are afraid to report prosecutorial misconduct, equating it with "burning bridges" for themselves,
- that disciplinary authorities do not prosecute prosecutors who are sued for civil rights violations, but given prosecutorial immunity (which is given ONLY because discipline is supposedly available - which it is not); and
- that prosecutors' organizations to prevent creation of the Commission for Prosecutorial Misconduct, and the failure of that organization to produce one case when prosecutors were actually disciplined, see testimony of the victim of a wrongful conviction Bill Bastuk, the co-founder of the organization "It Can Happen to You".
Well, there are actually two of such cases, where prosecutors were actually disciplined - but in both of them prosecutors were disciplined not for causing wrongful convictions, but for criticism of judges.