Prosecutorial conduct oversight board takes shape
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Chief Judge Janet DiFiore named three appointees to the New York State Commission on Prosecutorial Conduct on Monday. Eagle file photo by Todd Maisel
By Jacob Kaye
New York State’s chief judge made three appointments to a new commission designed to provide oversight to investigations into prosecutorial conduct this week.
Chief Judge Janet DiFiore named Hon. Randall T. Eng, Hon. Michael J. Obus and Michael A. Simons, the dean of St. John’s University School of Law, to the New York State Commission on Prosecutorial Conduct on Monday.
The independent commission was created by legislation passed earlier this year and will have the power to conduct hearings, send subpoenas, examine witnesses, require the production of records and evidence and make recommendations to the Attorney Grievance Committee and the governor in relation to prosecutorial misconduct.
“We are most fortunate to have three such accomplished and well-regarded candidates as Judge Obus, Judge Eng and Dean Simons to take on this important assignment,” DiFiore said in a statement. “They bring vast legal knowledge and experience–along with unassailable integrity and a steadfast commitment to the fair administration of justice–to the newly established Commission on Prosecutorial Conduct. I am thankful to each of them for sharing their time and talents in carrying out the Commission’s duties.”
Obus was a staff attorney with the Legal Aid Society of Nassau County before being appointed to the New York City Criminal Court in 1986. He finished his judicial career as the Administrative Judge for the New York State Supreme Court’s Criminal Term in New York County in 2020.
Eng, who grew up in Queens, began his legal career as the state’s first Asian-American assistant district attorney in 1973. He finished his career as a presiding justice in the Appellate Division, Second Department in 2018.
Simons joined the St. John’s University in 1998 and was appointed dean of the law school in 2009. Prior to his career in academia, Simons worked as a staff attorney for the Washington Post and as a criminal defense attorney at a private firm.
When filled out, the commission will consist of 11 members, four of whom will be appointed by the governor, two by the State Senate, two by the State Assembly and Orbus, Eng and Simons, who were appointed by the chief judge of the Court of Appeals.
By law, DiFiore was required to appoint two retired judges, one with a public defense background and the other with prosecutorial experience, and one full-time law professor or dean with experience in criminal law.
The commission, in its current form, was created by a 2021 bill signed into law by former Governor Andrew Cuomo in June.
In 2018, the State Legislature passed and Cuomo signed into law a bill that created a similar commission. However, the law was struck down in court after a judge ruled that the commission, in its previous iteration, was a violation of the separation of powers.
Both bills were fought by the District Attorneys Association of the State of New York, which did not respond to request for comment for this story.
Sandra Doorley, the president of the association, urged Cuomo to veto the bill in a June letter.
“That the grievance system needs to be changed is not in dispute,” Doorley wrote. “How that change should be implemented remains subject to continuing, healthy debate. What is apparent to our members, and we believe is clear to anyone upon examination of the current proposal, is that it will fail in its mission of holding prosecutors to the highest ethical standards, while simultaneously triggering many unintended results that will damage our criminal justice system and further erode the public's confidence in it, as well as in our ability to govern.”
“To risk the advent of additional wounds to our joint reputations and the public’s perception at a time when we are all faced with such dramatic increases in violent crime is more than unwise,” the letter continues. “Rather, we must seek to foster confidence in us,while finding solutions to this spreading plague of gun violence.”
The 2018 form of the commission allowed the oversight body to dole out discipline to prosecutors and district attorneys based on its investigations. It now only has the power to make recommendations concerning discipline, a vital change that advocates say may do little to improve the issue of prosecutorial misconduct in New York.
“I think it's a promising step but it's certainly not a solution,” said Cynthia Godsoe, a professor at Brooklyn Law School and member of Accountability NY, a nonprofit that aims to shed light on prosecutorial misconduct in the state.
Godsoe, as a member of Accountability NY, is currently involved in an ongoing lawsuit against the city and Queens District Attorney Melinda Katz.
The lawsuit centers around a letter sent to by the city’s corporation counsel, Georgia Pestana, seeking to prevent the organization from publishing grievances against prosecutors on their website, in full view of the public.
The law professors claim the city and Katz, who Pestana said she was representing in the letter, were violating the professors’ First Amendment rights by preventing the grievances, which had been filed with the Attorney Grievance Committee, from being published online.
However, Pestana argued that the grievances are meant to be private and that Accountability NY’s publishing of them violated protocol.
The Attorney Grievance Committee is a relatively opaque body and it’s processes for determining prosecutorial misconduct are largely shielded from the public. The State Commission on Prosecutorial Conduct was created, in part, to bring more transparency to the mechanisms holding prosecutors accountable.
“I think the positive thing is that it just brings more transparency and attention to the problem of prosecutorial misconduct, which is very untransparent,” Godsoe said.
The law professor said that she and her colleagues believe there is a double standard when it comes to doling out justice in the state.
“It's very, very odd to me that public figures like prosecutors...have a really powerful role in a system where the defendant, the accused peoples’ names are all over the place well before conviction and are often incarcerated before trial,” Godsoe said. “I think there's a public interest in knowing when there has been, for instance, a judicial finding against a prosecutor.”
Russell Neufeld, a former public defense attorney and current volunteer with Accountability NY said that he hopes the commission is transparent about its practices and recommendations, bringing a new culture of accountability into New York.
“The concern is that the new commission, because all it can do is make recommendations, won't actually be able to change things and we won't actually have prosecutorial misconduct be something where the prosecutors involved are held accountable,” Neufeld told the Eagle.
“The way to make that not be true would be for the new members of the new commission to make sure that, in fact, what they do is transparent, that their recommendations are made public,” he added. “And if they find that the recommendations are being ignored, that they protest and that they make that public, and that they don't allow themselves to just be used to paper over the continued protection of misconduct within prosecutors offices.”
