Establishes guidelines of professional conduct for activities by district attorneys and other public prosecutors; includes prohibition against certain extra judicial statements and defines a duty of prosecutorial care.
BILL NUMBER: S120
TITLE OF BILL : An act to amend the county law, in relation to establishing guidelines of professional conduct for activities by district attorneys
PURPOSE OR GENERAL IDEA OF BILL : This bill codifies several of the statutory, constitutional and ethical obligations imposed upon district attorneys into a single code of professional conduct enforceable by the Temporary State Commission of Investigation.
SUMMARY OF SPECIFIC PROVISIONS : Adds a new section 708 to the County Law establishing guidelines of professional conduct for activities by district attorneys and other public prosecutors:
Section 708(1) prohibits a district attorney from making certain types of extrajudicial statements which are likely to prejudice materially a criminal proceeding and enumerates which extrajudicial statements are permitted;
Section 708(2) provides that district attorneys shall make timely disclosure of all BRADY material and shall exercise reasonable care to prevent their subordinates from making a prohibited extrajudicial statement;
Section 708(3) establishes a duty of prosecutorial care and provides that a district attorney shall not intentionally avoid pursuit of certain evidence, fabricate evidence or intentionally mislead a defendant or potential witness;
Section 708(4) empowers the Temporary State Commission of Investigation to conduct investigations in connection with any alleged violation of the code of conduct;
Section 708(5) provides that a district attorney who violates any provision of the code is guilty of misconduct and in addition to any prescribed punishment, he or she is liable for treble damages in a civil action;
Section 708 (6) provides that a district attorney or other public prosecutor shall resign his or her office when he or she becomes a candidate for another office;
Section 708(7) provides that this section shall apply to all district attorneys and public prosecutors, including those in counties wholly contained within a city.
EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER : Present rules for district attorneys are codified in the Lawyers' Code of Professional Responsibility. Attorneys who violate these ethical rules are subject to disciplinary action by the Appellate Division pursuant to section 90 of the Judiciary Law.
According to Disciplinary Rule 7-103(B) public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he or she knows or it is obvious that the charges are not supported by probable cause.
A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to a defendant who has no counsel, of the existence of evidence, known to-the prosecutor or other government lawyer, that tends to negate the
guilt of the accused, mitigate the degree of the offense or reduce the punishment.
According to DR 7-107A lawyer participating in or associated with a criminal or civil matter, or associated in a law firm or government agency with a lawyer participating in or associated with a criminal or civil matter, shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in that matter.
According to the Disciplinary Rules an attorney may state the following in a criminal matter:
7. In a criminal case: a. The identity, age, residence, occupation and family status of the accused. b. If the accused has not been apprehended, information necessary to aid in apprehension of that person. c. The fact, time and place of arrest, resistance, pursuit, use of weapons, and a description of physical evidence seized, other than as contained only in a confession, admission, or statement. d. The identity of investigating and arresting officers or agencies and the length of the investigation.
JUSTIFICATION : The conduct of New York state's sixty-two district attorneys and their assistants are governed by the Lawyers' Code of Professional Responsibility, case law precedents, constitutional and statutory requirements. When a district attorney is accused of violating these standards of professional conduct, he or she is considered no . differently than any of the thousands of private attorneys practicing law in New York State.
The consequence of this uniform treatment is that the same grievance committees that are ostensibly charged, for example, with investigating the alleged withholding of Brady material by a public prosecutor are also charged with investigating complaints lodged by citizens against private attorneys regarding a wide variety of alleged misconduct. Given the immense prosecutorial powers which district attorneys possess and their status as constitutional officers, their conduct should be regulated under New York State law rather than by the New York State Bar Association.
The New York State Commission on Judicial Conduct, an independent disciplinary body established over twenty years ago, oversees the ethical conduct and behavior of New York State's 3,300 judges. There is, however, no equivalent body which is singularly charged with supervising the conduct of New York State's district attorneys and their assistant prosecutors. This bill, accordingly, eliminates this incongruity by establishing a parallel oversight mechanism to guide the professional conduct of public prosecutors and to provide for appropriate disciplinary action.
This bill does not impose any additional obligations on district attorneys. It simply codifies several existing obligations under one section of law and grants the Temporary State Commission of Investigation (TSCI) the authority to pursue alleged violations. The
TSCI, as the public body already charged with investigating allegations of criminal activity or misconduct committed by public officials, is the perfect agency to oversee the conduct of the state's district attorneys and public prosecutors.
PRIOR LEGISLATIVE HISTORY : S.2500 of 2007
02/06/07 Referred to Local Government
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS : Unknown at the present time.
EFFECTIVE DATE : This act shall take effect on the 1st of January next succeeding the date on which it shall have become law.
STATE OF NEW YORK ________________________________________________________________________ 120 2009-2010 Regular Sessions IN SENATE (PREFILED) January 7, 2009 ___________Introduced by Sen. SAMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Local Government AN ACT to amend the county law, in relation to establishing guidelines of professional conduct for activities by district attorneys THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Legislative findings. The legislature hereby finds that district attorneys and other public prosecutors, as public officers charged with overseeing that justice is done, owe a duty of fair dealing to those accused and candor to the courts. This act seeks to ensure that New York state's district attorneys and other public prosecutors comply with these fundamental duties by establishing a minimum code of conduct to guide their behavior in the performance of their official responsi- bilities. The legislature also recognizes that the state and its citizens are served not only when the guilty are convicted but when criminal trials are fair and that our system of the administration of justice suffers when any accused is treated unfairly. This act seeks to guarantee that district attorneys and other public prosecutors make timely disclosure to the defense of all evidence required to be disclosed pursuant to the laws and the constitution of the state of New York and the constitution of the United States. The legislature further finds that collaboration between district attorneys and the press as to information affecting the fairness of a criminal proceeding is not only subject to regulation, but is highly censurable and worthy of penalties therefor. This act seeks to achieve a fair balance between a district attorney's or other public prosecutor's right of free speech and society's interest in protecting the integrity of the criminal proceedings and thereby guaranteeing a fair and impar- tial trial. It is the intent of this legislature to insure that informa-EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01994-01-9 S. 120 2
tion and statements made by district attorneys and other public prosecu- tors is not to solicit coverage for their cause by employing the news media solely with a view toward gaining some benefit or influencing public opinions rather than fulfilling the prosecutor's obligation to seek justice. The purpose of this act is to insure, to the extent prac- ticable, the fair and orderly judicial administration in the conduct of criminal proceedings. S 2. The county law is amended by adding a new section 708 to read as follows: S 708. GUIDELINES OF PROFESSIONAL CONDUCT FOR ACTIVITIES BY DISTRICT ATTORNEYS AND OTHER PUBLIC PROSECUTORS. 1. A. NO DISTRICT ATTORNEY OR OTHER PUBLIC PROSECUTOR SHALL MAKE AN EXTRAJUDICIAL STATEMENT WITH RESPECT TO A CRIMINAL PROCEEDING THAT A REASONABLE PERSON WOULD EXPECT TO BE DISSEMINATED BY MEANS OF PUBLIC COMMUNICATION IF SUCH DISTRICT ATTORNEY OR OTHER PUBLIC PROSECUTOR KNOWS OR REASONABLY SHOULD HAVE KNOWN THAT SUCH STATEMENT WILL HAVE A SUBSTANTIAL LIKELIHOOD OF MATE- RIALLY PREJUDICING A CRIMINAL PROCEEDING OR THAT SUCH STATEMENT PRESENTS AN IMMINENT AND SUBSTANTIAL HARM TO THE FAIRNESS OF THE CRIMINAL PROSE- CUTION OR INTERFERES WITH A FAIR TRIAL OR SUCH STATEMENT WILL HARM THE REPUTATION OF THE ACCUSED IN THE EVENT THAT THE ACCUSED IS SUBSEQUENTLY NOT FOUND GUILTY. B. AN EXTRAJUDICIAL STATEMENT ORDINARILY IS LIKELY TO PREJUDICE MATE- RIALLY A CRIMINAL PROCEEDING WHEN THE STATEMENT RELATES TO: (I) THE CHARACTER, CREDIBILITY, REPUTATION OR CRIMINAL RECORD OF A SUSPECT OR WITNESS IN A CRIMINAL INVESTIGATION. (II) THE IDENTITY OF A WITNESS OR THE EXPECTED TESTIMONY OF A WITNESS IN A CRIMINAL PROCEEDING. (III) THE POSSIBILITY OF A PLEA OF GUILTY TO THE OFFENSE OR THE EXIST- ENCE OR CONTENTS OF ANY CONFESSION, ADMISSION, OR STATEMENT GIVEN BY A DEFENDANT OR SUSPECT, OR THAT PERSON'S REFUSAL OR FAILURE TO MAKE A STATEMENT. (IV) THE PERFORMANCE OR RESULTS OF ANY EXAMINATION OR TEST, OR THE REFUSAL OR FAILURE OF A PERSON TO SUBMIT TO AN EXAMINATION OR TEST, OR THE IDENTITY OR NATURE OF PHYSICAL EVIDENCE EXPECTED TO BE PRESENTED. (V) ANY OPINION AS TO THE GUILT OR INNOCENCE OF A DEFENDANT. (VI) INFORMATION THE DISTRICT ATTORNEY OR OTHER PUBLIC PROSECUTOR KNOWS OR REASONABLY SHOULD HAVE KNOWN IS LIKELY TO BE INADMISSIBLE AS EVIDENCE IN A TRIAL AND WOULD IF DISCLOSED CREATE A SUBSTANTIAL RISK OF PREJUDICING AN IMPARTIAL TRIAL. C. AN EXTRAJUDICIAL STATEMENT IS NOT LIKELY TO PREJUDICE MATERIALLY A CRIMINAL PROCEEDING WHEN MADE WITHOUT ELABORATION AND CONCERNS THE FOLLOWING: (I) THE INFORMATION CONTAINED IN A PUBLIC RECORD. (II) THAT AN INVESTIGATION OF THE MATTER IS IN PROGRESS. (III) THE SCHEDULING OR RESULT OF ANY STEP IN THE PROCEEDING. (IV) A REQUEST FOR ASSISTANCE IN OBTAINING EVIDENCE AND INFORMATION NECESSARY TO THE PROCEEDING. (V) A WARNING OF DANGER CONCERNING THE BEHAVIOR OF A PERSON INVOLVED WHEN THERE IS A REASON TO BELIEVE THAT THERE EXISTS THE LIKELIHOOD OF SUBSTANTIAL HARM TO AN INDIVIDUAL OR TO THE PUBLIC INTEREST. (VI) THE IDENTITY, AGE, RESIDENCE, OCCUPATION AND FAMILY STATUS OF THE ACCUSED. (VII) IF THE ACCUSED HAS NOT BEEN APPREHENDED, INFORMATION NECESSARY TO AID IN APPREHENSION OF THAT PERSON.S. 120 3
(VIII) THE FACT, TIME AND PLACE OF ARREST, RESISTANCE, PURSUIT, USE OF WEAPONS, AND A DESCRIPTION OF PHYSICAL EVIDENCE SEIZED, OTHER THAN AS CONTAINED ONLY IN A CONFESSION, ADMISSION OR STATEMENT. (IX) THE IDENTITY OF INVESTIGATING AND ARRESTING OFFICERS OR AGENCIES AND THE LENGTH OF THE INVESTIGATION. 2. EVERY DISTRICT ATTORNEY AND OTHER PUBLIC PROSECUTOR SHALL MAKE TIMELY DISCLOSURE TO THE DEFENSE OF ALL EVIDENCE OF INFORMATION KNOWN TO THE PROSECUTOR THAT TENDS TO NEGATE THE GUILT OF THE ACCUSED OR MITI- GATES THE OFFENSE AND EXERCISE REASONABLE CARE TO PREVENT INVESTIGATORS, LAW ENFORCEMENT PERSONNEL, EMPLOYEES OR OTHER PERSONS ASSISTING OR ASSO- CIATED WITH THE DISTRICT ATTORNEY OR OTHER PUBLIC PROSECUTOR IN A CRIMI- NAL PROCEEDING FROM MAKING AN EXTRAJUDICIAL STATEMENT PROHIBITED IN SUBDIVISION ONE OF THIS SECTION. 3. IT IS THE RESPONSIBILITY OF EVERY DISTRICT ATTORNEY AND OTHER PUBLIC PROSECUTOR TO SEEK JUSTICE, NOT MERELY TO CONVICT. A. THIS SPECIAL DUTY EXISTS BECAUSE: (I) THE PROSECUTOR REPRESENTS THE SOVEREIGN AND THEREFORE SHOULD USE RESTRAINT IN THE DISCRETIONARY EXERCISE OF GOVERNMENTAL POWERS. (II) THE PROSECUTOR IS MORE THAN AN ADVOCATE BUT ALSO MAKES DECISIONS NORMALLY MADE BY AN INDIVIDUAL CLIENT AND THOSE AFFECTING THE PUBLIC INTEREST SHOULD BE FAIR TO ALL. (III) OUR SYSTEM OF CRIMINAL JUSTICE GRANTS THE ACCUSED THE BENEFIT OF ALL REASONABLE DOUBT. (IV) THE PROSECUTOR HAS A DUTY TO MAKE TIMELY DISCLOSURE TO THE DEFENSE OF AVAILABLE EVIDENCE, KNOWN TO HIM OR HER, THAT TENDS TO NEGATE THE GUILT OF THE ACCUSED, MITIGATE THE DEGREE OF THE OFFENSE OR REDUCE THE PUNISHMENT. B. TO COMPLY WITH SUCH DUTY OF PROSECUTORIAL CARE: (I) THE PROSECUTOR SHOULD NOT INTENTIONALLY AVOID PURSUIT OF EVIDENCE MERELY BECAUSE OF THE BELIEF THAT IT WILL DAMAGE THE PROSECUTION'S CASE OR AID THE ACCUSED. (II) NO PROSECUTOR SHALL FABRICATE EVIDENCE OR INTENTIONALLY MISLEAD AN ACCUSED OR ANY POTENTIAL WITNESS TO A CRIMINAL PROCEEDING. 4. THE TEMPORARY STATE COMMISSION OF INVESTIGATION ESTABLISHED PURSU- ANT TO CHAPTER NINE HUNDRED EIGHTY-NINE OF THE LAWS OF NINETEEN HUNDRED FIFTY-EIGHT SHALL HAVE THE DUTY AND POWER TO CONDUCT INVESTIGATIONS IN CONNECTION WITH ANY VIOLATION OF THE GUIDELINES OF PROFESSIONAL CONDUCT FOR ACTIVITIES BY DISTRICT ATTORNEYS AND OTHER PUBLIC PROSECUTORS PURSU- ANT TO THE PROVISIONS OF THIS SECTION. 5. A DISTRICT ATTORNEY OR OTHER PUBLIC PROSECUTOR WHO VIOLATES ANY PROVISION OF THIS SECTION IS GUILTY OF MISCONDUCT, AND IN ADDITION TO ANY OTHER PUNISHMENT WHICH MAY BE PRESCRIBED THEREFOR, HE OR SHE FORFEITS TO THE PARTY INJURED TREBLE DAMAGES, TO BE RECOVERED IN A CIVIL ACTION. 6. A DISTRICT ATTORNEY OR OTHER PUBLIC PROSECUTOR SHALL RESIGN HIS OR HER OFFICE WHEN HE OR SHE BECOMES A CANDIDATE FOR ANOTHER OFFICE EITHER IN A PARTY PRIMARY OR IN A GENERAL ELECTION, EXCEPT THAT HE OR SHE MAY CONTINUE TO HOLD HIS OR HER POSITION AS DISTRICT ATTORNEY OR OTHER PUBLIC PROSECUTOR WHILE BEING A CANDIDATE FOR ELECTION TO OR SERVING AS DELEGATE IN A STATE CONSTITUTIONAL CONVENTION, IF HE OR SHE IS OTHERWISE PERMITTED BY LAW TO DO SO. 7. THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL DISTRICT ATTOR- NEYS AND PUBLIC PROSECUTORS INCLUDING THOSE IN COUNTIES WHOLLY CONTAINED WITHIN A CITY. S 3. This act shall take effect on the first of January next succeed- ing the date on which it shall have become a law.