Watchdog for prosecutorial misconduct inches toward action after 2 years on hold
ALBANY — After two years in limbo, a statewide commission meant to investigate charges of prosecutorial misconduct may finally begin its work this year — a move proponents of the commission call long overdue.
The Commission on Prosecutorial Conduct, which has seen its share of resistance from court challenges, has been inactive since former Gov. Andrew Cuomo signed legislation in 2021 formally creating the body, intended to independently investigate allegations of prosecutors misusing their power. Though Cuomo resigned from office shortly after his signature, the onus fell on his successor, Kathy Hochul, to make the necessary four appointments required from the executive chamber.
For months afterward, none of those appointments were announced, even as Hochul allotted $1.75 million in two consecutive state budgets to fund the commission’s work. The commission has never convened.
But Hochul's office said Thursday the governor has made three out of her four appointments: Andrea Glenn Loigman, a Westchester defense attorney, Daniel Alonso, who formerly worked in Manhattan’s district attorney's Office and Phillip C. Hamilton, a trial attorney in New York City. Staff are currently vetting a fourth pick.
The inertia has baffled some observers who had worked closely on the issue.
“We want to see it come to fruition and to see what is out there,” said Susan Bryant, executive director of the New York State Defenders Association. “Because so much of this has been under a shroud of mystery for us.”
The Commission on Prosecutorial Conduct was intended to correct a system that proponents say shields prosecutors from public scrutiny even in cases where they send innocent people to prison based on faulty evidence or corruption.
According to the criminal justice nonprofit Innocence Project, New York has the third-highest number of wrongful convictions in the nation.
“The government is supposed to regulate the conduct of attorneys to protect the public from future harm, especially with prosecutors who are powerful government lawyers,” said Peter Santina, an attorney with the nonprofit Civil Rights Corps. “Their misconduct harms the least-powerful — those who don’t have the means to hire lawyers to fight for them.”
In December 2021, then-chief Judge Janet Difiore announced her three picks for the commission: retired judges Michael J. Obus and Randall T. Eng and professor Michael A. Simons, dean of St. John’s University School of Law.
Eng said as of Thursday, he has not received any communication directing him on future commission activity.
At least two other appointments were made in 2022 by Senate Majority Leader Andrea Stewart Cousins and Assembly Speaker Carl E. Heastie: defense attorney Amy Marion and attorney Mayo Bartlett, who previously worked for the Westchester County district attorney’s office.
Two other appointments are reserved for Republican leaders in the Legislature. A spokesperson for Senate Minority Leader Rob Ortt said he has not made his appointment but will have one “in the very near future.”
But even without Ortt’s pick or that of Assembly Minority Leader Will Barclay, the commission has a quorum, meaning it could technically start investigating complaints immediately.
The current process to discipline prosecutors accused of misconduct is through grievance committees appointed by each Appellate Division, composed of both attorneys and non -attorneys. Yet these committees operate largely away from public scrutiny and rarely release disciplinary measures taken against prosecutors, even when a court has found that a prosecutor broke the rules.
Prosecutors operate in a system of near-absolute qualified immunity, rarely having to resign or face consequences even when their actions result in wrongful convictions, proponents of the commission have contended.
As the country increasingly grapples with how to confront abuses of power in the criminal justice system, from police departments to district attorneys’ offices, the need for independent watchdogs has become more clear, Santina said.
“It’s something everyone should be able to agree on, which is that powerful government leaders need to follow the rules,” Santina said. “And when they don’t, something needs to happen.”
The commission has a turbulent legal history; first proposed in the Legislature in 2018, it became the target of a lawsuit from the District Attorneys Association of New York, which argued that the commission would interfere with the ability of district attorneys to do their jobs. It was struck down by a judge in 2020. A second iteration of the commission that was meant to address those concerns, at least partially, passed in June 2021.
The body’s 2024 budget allocation of $1.75 million provides for 19 fulltime employees, including an administrator who must be a member of the New York bar and cannot be a former or active prosecutor.