A year ago, with much fanfare, New York Senate announced introduction of a bill for creation of a state commission to deal with rampant prosecutorial misconduct in this state.
The headlines presented this bill as a revolutionary event "poising" New York to become the first state in the nation to deal with the issue of prosecutorial misconduct on legislative level.
One year later, there is no discernible movement on the bill, even the sponsor of the bill, Senator John A. DeFrancisco, presented the bill on YouTube recently - with a resulting whopping 45 views as of today.
I also believe that even the necessity of creating such a commission deals a heavy blow to legitimacy of attorney licensing.
New York maintains 8 (!) attorney disciplinary committees,
- 1 in the Appellate Division 1st Department;
- 3 in the Appellate Division 2nd Department;
- 1 in the Appellate Division 3rd Department, and
- 3 in the Appellate Division 4th Department
These 8 committees have a duty of dealing with attorney misconduct.
Prosecutors are all licensed attorneys.
Therefore, there are already IN EXISTENCE governmental bodies with a duty to address prosecutorial misconduct, as a sub-species of attorney misconduct in general.
The need for attorney licensing is declared to the public to be justified because attorney licensing (and attendant discipline of attorney misconduct) allegedly protect the public from attorney misconduct.
Because of the need for a separate commission to deal with prosecutorial misconduct, it is apparent that that need is not satisfied, and not only in New York, but across the nation.
The need for attorney licensing is declared to the public to be justified because attorney licensing (and attendant discipline of attorney misconduct) allegedly protect the public from attorney misconduct.
Because of the need for a separate commission to deal with prosecutorial misconduct, it is apparent that that need is not satisfied, and not only in New York, but across the nation.
If misconduct of a particular class of attorneys, nearly the most powerful class of all attorneys (after judges), is systematically not addressed, leaving the public exposed to egregious harm from that misconduct, the question is - doesn't such non-prosecution of prosecutors undermine legitimacy of attorney regulation?
In my opinion, it does.
And you know what is wrong with Senator DeFrancisco's bill and why (in my opinion) it lacks credibility?
Listen to Senator DeFrancisco's video presentation of the bill.
Around 5 minutes into his speech, Senator DeFrancisco says that "almost all prosecutors do their jobs properly" and that the bill is allegedly only against a tiny number of prosecutors who commit misconduct.
Come on, Senator DeFrancisco.
You really lose credibility when you say that.
You wouldn't have introduced this bill if prosecutorial misconduct would not be rampant.
I, as a criminal defense attorney, have to see, as yet, a prosecutor, who would NOT conceal Brady material, who would NOT overcharge in order to coerce the defendant to plea-bargain, who would NOT intimidate defense witnesses, etc. etc. etc.
Such actions of prosecutors are now routine, and they are routine because of the absolute prosecutorial immunity that covers all prosecutors for any malicious and corrupt conduct during his or her prosecutorial activity, and because of a complete lack of disciplinary consequences as an attorney.
And absolute power breeds absolute corruption.
When you recognize that, Senator DeFrancisco, maybe your bill will gain a little bit of credibitility - which it totally lacks now.
And, by the way, modeling the proposed state commission on prosecutorial misconduct on the New York State Commission for judicial misconduct (a glorified shredder of public complaints against judges) is as good as announcing to people that it will be yet another waste of time and money and another decoy, a "Potiomkin village" meant to deflect public anger at unbridled prosecutorial misconduct by an appearance that it is "being taken care of".
Right.
And you know what is wrong with Senator DeFrancisco's bill and why (in my opinion) it lacks credibility?
Listen to Senator DeFrancisco's video presentation of the bill.
Around 5 minutes into his speech, Senator DeFrancisco says that "almost all prosecutors do their jobs properly" and that the bill is allegedly only against a tiny number of prosecutors who commit misconduct.
Come on, Senator DeFrancisco.
You really lose credibility when you say that.
You wouldn't have introduced this bill if prosecutorial misconduct would not be rampant.
I, as a criminal defense attorney, have to see, as yet, a prosecutor, who would NOT conceal Brady material, who would NOT overcharge in order to coerce the defendant to plea-bargain, who would NOT intimidate defense witnesses, etc. etc. etc.
Such actions of prosecutors are now routine, and they are routine because of the absolute prosecutorial immunity that covers all prosecutors for any malicious and corrupt conduct during his or her prosecutorial activity, and because of a complete lack of disciplinary consequences as an attorney.
And absolute power breeds absolute corruption.
When you recognize that, Senator DeFrancisco, maybe your bill will gain a little bit of credibitility - which it totally lacks now.
And, by the way, modeling the proposed state commission on prosecutorial misconduct on the New York State Commission for judicial misconduct (a glorified shredder of public complaints against judges) is as good as announcing to people that it will be yet another waste of time and money and another decoy, a "Potiomkin village" meant to deflect public anger at unbridled prosecutorial misconduct by an appearance that it is "being taken care of".
Right.
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