The idea of an official commission to investigate prosecutorial misconduct would hardly seem like a threat to life as we know it. It will no doubt be staffed by the usual suspects, the blue ribbon types who speak in moderated tones and have a proven facility to make excuses and rationalizations for impropriety whenever possible. Like the Civilian Complaint Review Board types, who quickly become co-opted into officialdom.
That prosecutors who engage in impropriety have to already endure stern lectures in the rare instance when they’re caught is bad enough. And if they do it again, well, then they have to endure another stern lecture. That will show ’em.
And so, the idea of a state prosecutorial misconduct commission to address impropriety received a less-than-loving embrace from . . . prosecutors.
District attorneys made an 11th-hour appeal to state legislators Wednesday to oppose the creation of a commission to investigate complaints about overzealous or unethical prosecutors and recommend sanctions, including possible removal from office.
It’s not as if this sort of thing is unheard of, since it’s a variation on a theme already employed to address judicial impropriety.
Sponsors of the bill, A1131/S24, said at a legislative forum that it is modeled closely on legislation that created the state Commission on Judicial Conduct.
So what’s the big deal? The poster prosecutor in opposition trotted out to pitch their problems at a three-hour legislative hearing was none other than newly-elected Bronx District Attorney Darcel Clark.
Bronx District Attorney Darcel Clark, Albany County’s P. David Soares and Oneida County’s Scott McNamara told the sponsors of the bill that there are ample checks and balances in place to curb abusive practices by district attorneys or their assistants.
Clark said that although prosecutors are often involved in adversarial proceedings, they are also challenged to do their jobs in an even-handed way by trial judges, defense attorneys, ethics rules applying to lawyers and prosecutors and to the risk of having their convictions overturned by appellate courts.
“We can be easy targets at times,” Clark said. “When we do our work, there are always unhappy customers.”
Clark was the perfect spokesmodel for the potentially victimized prosecutors. Former Bronx assistant made judge, because she matched the required demographic. She was on the short list for the minority female seat on the Court of Appeals (New York’s version of the Supreme Court), but was passed over for someone smart and honest.
And indeed, prosecutors can be “easy targets,” mostly because they engage in impropriety without any shame whatsoever because they’re the good guys. One might take umbrage with her characterizing criminal defendants as “unhappy customers,” but she was just being cute.
Of course, in the Bronx, the “customers” tend to be particularly unhappy given the years they spend in jail awaiting trial, for being too poor to cover the needless bail and presumed innocent even though Darcel knows they’re all guilty, because prosecutors screw with the law that requires a speedy trial. And judges let them. Judges, like Darcel when she was that judge.
And who was there to challenge the potentially-victimized District Attorneys? White men, natch.
Among others who appeared Wednesday at the forum were Pace Law School Professor Bennett Gershman, a legal ethics expert who said he favors creation of a commission.
Gershman said studies have shown that prosecutorial misconduct is a leading cause of wrongful convictions, but he said prosecutors suffer few consequences under the existing attorney disciplinary system or the courts for not doing their jobs fairly or ethically.
“We are not talking about mistakes, we are not talking about [the exercise of] discretion, we are not talking about the failure to prosecute,” Gershman said. “We are talking about blatant, egregious and flagrant misconduct, and it happens a lot.”
None of this is new or surprising, of course. If this wasn’t the case, there would be no call for a prosecutorial misconduct commission in the first place. There are no checks and balances, as Darcel claimed, because District Attorneys see no harm when their minions are doing the work of the angels putting the evil criminals away for the good of society. Conceal Brady? Never happens, and when it does, it isn’t Brady anyway, and when it is, it doesn’t matter because the defendant was guilty. No problem here, because no harm, no foul. See how those checks and balances work?
But the real fear is that prosecutorial misconduct will put them to the test, force prosecutors to have to answer the complaints of “blatant, egregious and flagrant misconduct, and it happens a lot.” The Bronx is a criminal justice toilet, and Darcel is the queen sitting on her throne. The last thing she wants is anyone looking hard at her office, her assistants, how her toilet never gets flushed.
In fairness, it was this way before Darcel took over Rob Johnson’s seat, and it’s so friggin’ awful that Robin Steinberg and Bronx Defenders have gone to court to end the years of delay, with presumptively innocent defendants sitting on Rikers (when they aren’t being beaten) until they would rather die than await their day in court.
So sad? Not to Darcel. After all, no queen wants to have someone looking at the blatant misconduct over which she reigns, sticking their official noses into her sovereignty over her personal toilet bowl. This is particularly true when the queen isn’t too bright or too honest, even though she’s enjoyed the benefits of filling seats requiring her particular combination of immutable traits.
An easy target, Darcel? You bet you are. Not because criminal defendants are “unhappy customers,” but because you’re an apologist for “blatant, egregious and flagrant misconduct,” which comes naturally from your time as an assistant in the trenches. Want to avoid scrutiny? Stop engaging in prosecutorial misconduct. And “it happens a lot.”
And no, there’s nothing cute about you, even if they made you the poster prosecutor. Nothing.
H/T Kathy Manley