Federal court upholds ruling opening prosecutor discipline records to the public

A federal appellate court last month ruled that prosecutorial disciplinary proceedings and records should be public.  Eagle file photo by Jacob Kaye

By Jacob Kaye

A federal appeals court recently upheld a lower court ruling that found that New Yorkers have the right to access prosecutorial disciplinary proceedings and records, which are currently shrouded in secrecy.

The United States Court of Appeals for the Second Circuit ruled in favor of Civil Rights Corps, a criminal justice nonprofit, and a group of law professors who challenged the constitutionality of a New York State law that keeps the work of its grievance committees secret.

The professors first sued the state in 2021 after they published nearly two dozen complaints against current and former prosecutors in the Queens District Attorney’s office. Though the state and the Queens DA’s office argued the complaints – and any subsequent investigation, findings, or disciplinary action taken against the prosecutors – should be confidential, the law professors and Civil Rights Corps said otherwise. They sued the state, arguing that discipline imposed by the grievance committees was presumptively public.

A federal district judge agreed in a 2024 ruling, which was appealed by the state and upheld by the Second Circuit at the end of July.

“A presumptive First Amendment right of access attaches to both Second Department proceedings, including all documents and records reasonably implicated in understanding those proceedings, and the Committee’s dispositions,” the ruling read.

The court said that the state could not prohibit access to grievance committee proceedings and records “without making specific, on-the-record findings justifying confidentiality.”

Peter Santina, the managing attorney of the prosecutorial accountability project at Civil Rights Corps, called the ruling “very important.”

“Prosecutors are the most powerful law enforcement officials in the country and they typically have absolute immunity from lawsuits,” he said.

“This is a huge ruling for the public's right to know what is happening in these times of growing authoritarianism,” he added. “It's more important than ever that powerful government officials are held accountable, and that the public knows what agencies and government bodies are doing when they are supposed to be investigating allegations of misconduct.”

Neither the state attorney general’s office, which represented the state in the case, nor the Queens DA’s office responded to the Eagle’s request for comment.

While the ruling drew praise from the Civil Rights Corps, the New York State Bar Association, an amicus curiae in support of the state in the case, said that it was disappointed by the overturning of the longstanding confidentiality mandated by New York Judiciary Law Section 90(10) for ethics proceedings.

“The decision introduces practical challenges for the Grievance Committee by shifting the burden to justify confidentiality in matters that historically remained protected during the investigatory stage,” Taa Grays, the NYSBA’s president, said in a statement. “Though we do not have a formal role in attorney discipline, the association stands ready to make sure that confidentiality is safeguarded and public confidence in the administration of justice is maintained.”

Currently, complaints against attorneys are submitted to a grievance committee – there’s one for each of the state’s four Appellate Divisions. The committee begins by screening the complaint and, if necessary, elevating it to be investigated. The committee’s staff then determines whether there is probable cause of professional misconduct warranting public discipline. If authorized by the committee, the Appellate Division can begin formal disciplinary proceedings.

Brad Leventhal (left), a former bureau chief in the Queens district attorney’s office, was found to have committed prosecutorial misconduct by a judge. He has yet to be disciplined publicly by the state’s grievance committee.  Eagle file photo by Paul Frangipane

Complaints against prosecutors can be sent to the state’s notoriously dormant Commission on Prosecutorial Conduct, which does not have the authority to discipline prosecutors.

The entire process, from start to finish, is presumed to be confidential under the section of the state’s judiciary law deemed unconstitutional by the federal courts.

The law was called into question when the Civil Rights Corps and the law professors began publishing prosecutorial misconduct complaints in 2021 on a website called Accountability NY. Each of the complaints was based on rulings by judges in which prosecutorial misconduct was found.

Two of their earliest complaints regarded former Queens ADAs Brad Leventhal and Charles Testagrossa, who had been found by then-Queens Criminal Court Administrative Judge Joseph Zayas, who now serves as the chief administrative judge, to have “deliberately withheld” information about potential suspects in a 1996 murder case that led to the wrongful conviction of three men, Gary Johnson, George Bell and Rohan Bolt.

Four days after Zayas’ ruling, Testagrossa resigned from his post as chief of investigation in the Nassau County district attorney’s office. Leventhal, who was working at the time as the Queens Homicide Bureau chief, resigned several weeks later, citing “mutual concern that his continued employment had become a distraction from the critical, on-going work of the office.”

Neither Leventhal nor Testagrossa has faced public disciplinary action from the state’s grievance committee, nor did they face any internal disciplinary action in their respective district attorney offices.

“New York’s system is antiquated, and its imposition of secrecy when lawyers are disciplined is contrary to First Amendment principles,” said Gregory Diskant, a senior litigator at Patterson Belknap who represents the law professors in the case.

Not long after the complaints against Leventhal, Testagrossa and around 20 others were published, the Queens district attorney’s office and attorneys for the City of New York attempted to force the professors to remove the complaints from the public’s eye and prevent them from publishing further complaints online. They claimed that because of the grievance committee’s privacy rules, the law professors had violated state law by posting the complaints publicly, regardless of whether or not the complaints were already public record as a result of judicial rulings.

The professors continued to publish additional complaints against prosecutors – the most recent batch of complaints was published in 2023.

Santina said the group has continued to look for instances of prosecutorial misconduct detailed in judicial rulings as their case has made its way through the courts.

“Stay tuned,” he said.