Andrew Cuomo lingers with signing it, being under pressure from the District Attorney's association.
New York Attorney General, also a prosecutor, reportedly recently provided Andrew Cuomo with a memorandum - which was only spoken about, but not published - that supposedly argues that the bill is unconstitutional, according to the State Constitution, and the Attorney General, the person and office that actually DEFENDS violators of state and federal constitution in court against their victims, claiming that it is their duty to do that under New York Public Officers Law Section 17, is now concerned about constitutionality of a bill.
I've written about that bill, and that, even though my heart is on the side of the wrongfully convicted, and against prosecutorial misconduct that I have seen for years in New York courts when I practiced as a criminal defense attorney, and even before that, when I worked as a legal assistant for a criminal defense attorney - the Commission fashioned after a toothless tiger wrought with conflicts of interest, the New York State Commission for Judicial Conduct - is not the solution.
The decision against prosecutor Mary Rain was authored by a panel of 5 judges where at least three of them - Garry, Mulvey and Devine - were exposed for their own misconduct and multiple violations of people's civil rights (which is a federal crime in the United States), but remain on the bench, with their law licenses intact.
Prosecutor Mary Rain was suspended for pitching to the jury a negative inference from the defendant's failure to deny his guilt during a police interrogation until directly asked (something many, many prosecutors do without any discipline, and that prosecutor Mary Rain, based on that, probably, considered as not even a disciplinary offense for a prosecutor to do),
Critics of the bill - legitimately - questioned, why the bill was even necessary since it duplicates the system of attorney discipline already in place. If that system does not work, or if it has a policy to selectively exclude prosecutors - why not try and reform that system? And why not address the issue of selective policies like that - after all, numerous people reported selective policies of grievance committees, including insiders:
1. of whitewashing powerful attorneys - through a lawsuit of a grievance committee prosecutor fired for whistleblowing;
2. of targeting minority lawyers - that was revealed in a testimony before the New York State Commission on Attorney Discipline in 2015 - and disregarded;
3. and now, in selective non-enforcement of attorney discipline against prosecutors. Suspension of Mary Rain does not count, since it was done on June 27, 2018, after the bill for creating the Commission for Prosecutorial Misconduct was approved by the New York State Senate on June 14, 2018, and then by the New York State Assembly on June 19, 2018.
Let's watch the panel of judges who suspended Mary Rain - something that never happened in New York history, suspension of the law license of a public prosecutor for prosecutorial misconduct.
Let's remember their names:
Elizabeth Garry;
Robert Mulvey;
Michael Lynch;
Eugene Devine;
Sharon Aarons
These political animals will go far. Watch out for their appointment to the New York State Court of Appeals, that is what usually happens when a judge of an intermediate appellate court makes a decision that is a favor to one of the political branches in the New York State government. And these 5 judges gave a BIG favor to the opponents of the Commission on Prosecutorial Misconduct.
Before they are elevated to the Court of Appeals, watch out for their re-election campaigns, since they are all, technically, Supreme Court justices that MUST be re-elected.
Garry was elected in 2006 for 14 years - and thus must run for re-election in 2020. Given that Garry was admitted to practice law in 1991, at the minimum age of 25 (18 - graduation from high school, 22 - from college, 25 - from law school), she is 54 now, 16 years from mandatory retirement at 70.
Mulvey was re-elected in 2014 for 14 years - his re-election campaign is not due until 2028.
Mulvey was admitted in 1981 at the minimum age of 25, he is at least 64 years now, 6 years from mandatory retirement in 2024, so he will retire before the need to get re-elected, so his job is the last sinecure to gain a better pension, not to mention to give political favors to some powerful people like a prosecutors' association (who knows when Mulvey's old sins would surface, one would never err to create powerful allies - to suspend one prosecutor in order to save all others from a more pointed commission dealing with prosecutorial misconduct).
Michael Lynch, a former prosecutor, was elected in 2005 - he will be up for re-election in 2019, watch out for this one, Cuomo might elevate him to the Court of Appeals to save him the need, and expense, of an election campaign.
Michael Lynch is 65, his mandatory retirement is within 5 years, so if he runs for re-election for another 14 years, that would be a major waste for taxpayers since he will only be able to fulfill 4 years of his 14 term. This is the most likely candidate for promotion to the New York State Court of Appeals out of this crew.
Eugene Devine - former public defender and former counsel for social services (a great combination) - was elected in 2006, so he is up for re-election in 2020.
Eugene Devine was admitted in 1976 at the minimum age of 25, is at least 67, will have to retire within 3 years, in 2021.
His re-election in 2020, one year before mandatory retirement, is also a waste of time. Of course, the Governor can prolong his stay by "certification" for 3 2-year spans, but not on the Appellate Division, in a lower court. He is also one of the more likely candidates for promotion to the New York State Court of Appeals - to save him from the need and risk of a re-election campaign and to boost his salary for retirement purposes.
Sharon Aarons - the only dark-skinned judge on the court and the only immigrant judge on the court (she was born in Jamaica) - was elected in 2009, her term is until 2023.
Sharon Aarons was admitted in 1990 at the minimum age of 25, so she is 53 now, 17 years from mandatory retirement. She may also be spared the need to run for re-election and promoted to the Court of Appeals, considering the big favor she has provided to prosecutors, as well as that the Governor is the former prosecutor and in debt to Chief Judge Janet DiFiore, also a former prosecutor, as I have testified to the New York Legislature at the time of her appointment by Cuomo. Yet, she was never a prosecutor, so she may be passed by. And, being of dark skin and being promoted to the Court of Appeals in New York may be a death sentence - given what happened to the only dark-skinned female judge of the New York State Court of Appeals Sheila Abdus-Salaam who was found dead in the Hudson river in April of 2017, although not prone to suicide by accounts of all who knew her, then the investigation quickly thwarted, closed in less than a month from her death, and a gay white man quickly appointed in her place, in June of 2017.
Sharon Aarons, given the political and other circumstances, may have to run for re-election in 2023 to keep her place on the appellate court - if she is not promoted to the NY Court of Appeals.
I am not saying that prosecutor Mary Rain did not commit misconduct. I am saying that it is routine in New York for prosecutors to do just the same, and never to get disciplined.
Mary Rain was obviously singled out by a political crew of judges as a sacrificial lamb to undermine the bill for the Commission for Prosecutorial Misconduct - a Commission that these judges, who are also licensing judges and judges who appoint those attorney grievance committees that engage in selective non-enforcement of attorney disciplinary rules against prosecutors - see as undermining their power over all attorneys, including prosecutors, and as a move that highlights that regulation of attorneys in New York is political.
Nothing like a political move in order to prove that attorney disciplinary system is not political, but who expects logic, intelligence or, God forbid, integrity from people who try to assert their power and advance their career?
But - back to the flaws pointed out by critics of the bill, and by prosecutors fighting against introduction of the Commission.
1. a system of attorney regulation and discipline already exists, prosecutors are part of it - so why duplicate it?
A valid point.
Of course, a public prosecutor should be removable from office only through impeachment, not through actions of committees of competitors appointed without input from the public - but, again, who looks for logic, or rights of the public, when the power of the self-chosen few is involved.
2. 8 out of 11 Commission members - a super-majority - are appointed by members of the government, while prosecutors are supposed to prosecute crimes committed by anybody, including and especially, the government.
A valid point.
But, right now prosecutors are disciplined by attorney grievance committees 100% appointed by the government, state intermediate appellate courts. In the Commission of Prosecutorial Misconduct, at least 3, a minority are appointed not by the government. So, validity of that point is undermined by the current system of attorney regulation.
At the same time, the editorial, published on June 21, 2018, 6 days before the first-in-New-York, PR-suspension of public prosecutor Mary Rain by the political crew of judges in the 3rd Department, pointed out that the government regulating prosecutors may do it for political reasons and not to protect the public from their misconduct - as was proven by Mary Rain's suspension.
3. The Governor has a power to remove prosecutors for misconduct already. Why duplicate that?
A valid point.
4. Documents of the Commission will be condfidential. Why should the public invest money into the Commission not knowing that it is doing its job - if it is fashioned on Commission for Judicial Conduct, it will be tossing the overwhelming majority of complaints without even an attempt at investigation, no matter how well-founded the complaint can be, and how many documents irrefutably pointing at misconduct would be provided in support of a complaint.
As to Commission for Judicial Conduct, a federal court sitting in NY already ruled - in answer to the lawsuit I brought on behalf of myself and my three clients - refusing to block attorneys "serving" in such Commission to practice under the circumstances of conflict of interest, or to derive advantage in litigation from their "service" on the Commission (of judicial conduct), refusing to declare that the lack of appellate review when complaints are tossed without an investigation is unconstitutional and refusing to declare that a full record of investigation on dismissal of a complaint against a judge should be provided to the complainant.
The court ruled as follows:
The court has declared that "a private citizen does not have standing to initiate or maintain a disciplinary proceeding against an attorney or a judge, or to appeal if the court or commission declines to discipline".
That's it.
That is the applicable precedent - to the new would-be Commission for Prosecutorial Misconduct, too.
The court blatantly told the victims of judicial misconduct whose complaints to the Commission for Judicial Conduct were tossed, without an investigation, by attorneys who practiced before the judge that was subject of the Commission's investigation, and who derived personal, financial, benefits from non-disciplining the judge - that the victims have no standing (no right) to complain if their complaints are tossed without investigation.
What kind of recourse is that?
Why does Commission of Judicial Conduct need to exist and suck public money?
Why does Commission of Prosecutorial Misconduct, fashioned after the Commission for Judicial Conduct, need to exist and also such public money - if the public HAS NO SAY in the actions of the Commission?
I understand, once again, that the wrongfully convicted groups want to do something - anything - to relieve the situation, but how will this money-sucker Commission will relieve the situation if it will be similarly permeated by conflicts of interest and where all proceedings will confidential and the public will similarly have no right to appeal tossing of meritorious complaints into the garbage without an explanation?
Do New York taxpayers have extra money to burn on more sinecures for those who will be "serving" the public by blocking the public from getting a remedy for great wrongs done to them by bad prosecutors?
That is my main objection to the creation of the Commission for Prosecutorial conduct, too. It is a waste of money and creation of a dangerous illusion that something is being done to resolve the glaring problem that the supposedly democratic New York has the most number of wrongful convictions after the racist death penalty case, Texas.
I understand the urge of wrongfully convicted New Yorkers to have SOMETHING, ANYTHING done to resolve the problem - as they are calling upon Govenor Cuomo to sign the bill.
Yet, signing this particular bill and putting into being the Commission the way it is created by the Legislature, will do more harm than good.
There are a couple of other points that - reportedly - the AG's office advised to the Governor about in a non-published memo, but I will abstain from commenting on the memo until I see it first-hand.
It is an interesting race - whether Cuomo will sign the bill, since there is an almost certainty that it will be challenged on state constitutional grounds, and, given that the New York State Court of Appeals is headed by a former state prosecutor who was cheered at her swearing-in ceremony by the DA's association in 2016, we know what the verdict of the court may be.
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