Originally published July 10 by the Albany Times Union
By Richard A. Brown, Commentary
The topic of discipline of prosecutors has generated considerable attention in recent years. What is frequently forgotten, however, is that prosecutors, like all attorneys, remain subject to the grievance and disciplinary procedures in each of our four Appellate Divisions.
Just two weeks ago, in the Matter of Rain, the Appellate Division, Third Department suspended the former district attorney of St. Lawrence County Mary Elizabeth Rain from the practice of law for an array of ethical lapses. Grieved by a county court judge and urged by the District Attorneys’ Association to prioritize her investigation for the good of that county’s justice system, the committee thoroughly investigated the alleged transgressions, developing an unassailable record to support her discipline. Significantly, the court, while employing the current grievance mechanism, still made clear that prosecutors, because of the role they play in our justice system, are held to higher standards and are therefore more vulnerable to severe punishment.
Yet the Legislature, despite this reality, has now sought to create a separate, indeed duplicative, disciplinary system, making prosecutors the only members of the bar exposed to multiple investigative bodies.
Without addressing the profound state constitutional issues involved, it must be noted that the Legislature has taken this action, in spite of the fact that in September 2015 the New York State Commission on Statewide Attorney Discipline, in its final report to Chief Judge Jonathan Lippman, found that the contention that there is rampant prosecutorial misconduct which is ignored by the current disciplinary procedures is wholly without support.
That conclusion was hardly an outlier. In February 2017, the New York State Justice Task Force issued a report on Attorney Responsibility in Criminal Cases. The task force found that the term “prosecutorial misconduct” was employed far too frequently and without regard to its actual meaning, often applied to mere mistakes. Moreover, it concluded there was no need for a separate grievance body for prosecutors. Rather, it recommended taking steps to ensure that our current grievance mechanisms operate more efficiently and effectively.
Despite there being no evidence to suggest widespread prosecutorial abuse, the Legislature has delivered to the governor a jury-rigged bill, meant to mirror the Commission on Judicial Conduct. However, any analogy between the commission and this creation is, at best, a clumsy one.
Simply stated, judges and prosecutors are different. Their roles in our system are different. Judges are neutral. They preside over cases and controversies. Prosecutors, although quasi-judicial officers, are advocates. They pursue a result zealously. That result, of course, is justice. That pursuit must be undertaken without fear or favor and without concern for who might be offended, so long as the evidence supports it. Once convinced of the rightness of a prosecution, we are duty bound to pursue it. Conversely, if persuaded there is a failure of proof, no prosecution may be ethically commenced regardless of anyone’s disappointment.
Prosecutors create enemies when they commence investigations, regardless of whether they investigate a public official or a street gang. We create additional enemies when we refuse to commence investigations, if insufficient basis exists for doing so. Enemies often derive from the disappointing news to a victim that criminal charges cannot be brought. And of course, those who are the most guilty, of the worst crimes, vulnerable to the longest sentences, will always harbor particular enmity for their prosecutors. It is from the universe of the desperate and the disappointed that complaints will arise. Sadly, legislation intended to provide for oversight and transparency will only yield confusion and delay.
The investigation and the discipline described in Matter of Rain required more than two years to complete. Addressing that should be the primary focus of the Legislature. Providing the current grievance system with more resources and additional expertise to assess misconduct claims in criminal matters would have been a more useful answer.
I urge the governor to rectify this legislative misadventure.
Richard A. Brown is the Queens County district attorney. He previously served as an Appellate Division justice and counsel to Gov. Hugh L. Carey.