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Prosecutorial oversight movement underway

Complaints about prosecutors could be reviewed by an independent commission under a  proposal pending in the state Legislature.

The Commission on Prosecutorial Conduct would be patterned after the state Commission on Judicial Conduct, created by the Legislature in 1974 and made permanent in 1976. It reviews complaints about the state’s judiciary.

The idea came from a March 2011 summit of several different organizations, conducted by It Could Happen To You Inc., an organization founded about six months earlier by Bill Bastuk, of Irondequoit, who was still stinging from his own experience with the criminal justice system.

The bill to create the Commission on Prosecutorial Conduct, originally an It Could Happen To You white paper, is being sponsored by Sen. John A.  DeFrancisco, R-Syracuse; and Assemblyman Nick Perry, D-Brooklyn.

“I don’t think any state has this right now,” DeFrancisco says in a “Your Voice with Sen. John DeFrancisco” video posted May 14 on his website (http://bit.ly/Rj89Pz).

He noted there are two parts to the proposed commission which would have 11 members, the same as the Commission on Judicial Conduct, with three appointed by the chief judge of the Court of Appeals; two by the governor; two each, the Senate and Assembly majority leaders; and one each by the minority leaders.

“It may be a legitimate allegation,” DeFrancisco notes. “It may be something totally spurious that someone just is knocking the fact that he got caught and got prosecuted, but there’s no real forum to determine the truth of these allegations or to determine whether the prosecution did anything wrong or not.”

A spokesman for the District Attorneys Association of the State of New York on Friday said the association is reviewing the legislation (S6286, A8634) and has no official position at this time.

DeFrancisco, who is an attorney and former Onondaga County assistant district attorney, said prosecutors have more discretion than any other public official, choosing not only who to prosecute, but how and where it ends up.

“With that broad discretion, I believe, comes a substantially greater amount of accountability,” he said. “Right now, we learn of prosecutorial misconduct several years after someone has gone to jail and they later are released and the state pays a lot of money. There’s really no accountability to that prosecutor.”

DeFrancisco said a judge in the Bronx, earlier this month, “blew up” at a prosecutor for withholding something in a rape case causing someone to be held in jail. He said the judge banned the assistant district attorney from his courtroom.

“Big deal,” he added. “That doesn’t remedy the situation. That doesn’t hold him accountable because the individual’s still going to be prosecuting somebody in another court before a different judge.”

The situation sounds similar to what happened to Bastuk, who was charged in 2008 with raping a 16-year-old girl. He alleges an assistant district attorney repeatedly tried to withhold the accuser’s diaries, which he needed to defend himself. He said they contained entries predicting the date and time he would rape her.

Bastuk, a former Irondequoit town councilman and Monroe County legislator, claims the prosecutor “used every trick in the book” to avoid turning the materials over. He was acquitted at trial nearly a year later, but said it cost him $150,000 and a second mortgage on his home.

Bastuk, who had done advocacy work previously, formed It Could Happen To You Inc. at the suggestion of his wife and attorney and began advocating for reforms in the criminal justice system.

DeFrancisco said the Commission on Judicial Conduct is a place where people can file a complaint which disinterested individuals review and either determine there is nothing to it or discipline the judge for that type of activity. He asked why there should not be a similar commission with respect to allegations against prosecutors.

“That’s the whole purpose of the bill,” he said. “It will not only clear the name of prosecutors who are being — things are being said about them that are not true — but, it will also provide some type of remedy against those prosecutors who are not acting ethically.”

The bill calls for the creation of the Commission on Prosecutorial Conduct to serve as a disciplinary entity to review complaints of prosecutorial misconduct, enforce the obligation of prosecutors to observe acceptable standards of conduct and establish reasonable accountability.

It was passed May 6 by the Senate Judiciary Committee and forwarded to the Finance Committee, which DeFrancisco chairs, to determine how much the commission would cost. In the Assembly, the measure is still pending in the Judiciary Committee.

Bastuk said a prosecutor could appeal any determination directly to the state Court of Appeals. If the court were to uphold a removal decision, the matter would be forwarded to the governor for final action.

He said his organization is seeking to create a system of uniform best practices for district attorneys and assistant district attorneys.

“Right now, we’ve got this crazy quilt of 62 jurisdictions in which every DA has its own culture,” Bastuk said. “There are no systematic best practices.”

He said it works both ways; that the commission could also protect prosecutors against accusations of misconduct. He said prosecutors could turn to the commission for an independent analysis.

Bastuk said another important element is to look at what went wrong with a conviction or indictment and recommend cures so it does not happen again.

He compares it to a patient dying in a hospital. Bastuk said there is an independent body that investigates the death and comes up with curative action.

He estimates such a system overseeing prosecutors could save millions in lawsuits and unnecessary trials.

If passed, the act to establish the commission, according to the bill, would take effect Jan. 1.

“We are working very hard to try and get this through this session, so we’ll see what happens,” Bastuk said. “We’re just very excited about the progress and we commend the senator and assemblyman and all the sponsors and members who have already voted for this bipartisan approach to fix a broken system.”

Bastuk, a former Irondequoit town councilman and Monroe County legislator, was charged in 2008 with raping a 16-year-old girl. He alleges an assistant district attorney repeatedly tried to withhold the accuser’s diaries which he needed to defend himself. He said they contained entries predicting the date and time he would rape her.

Bastuk claims the prosecutor “used every trick in the book” to avoid turning the materials over. He was acquitted at trial nearly a year later, but he said it cost him $150,000 and a second mortgage on his home.

Bastuk, who had done advocacy work previously, formed It Could Happen To You Inc. at the suggestion of his wife and attorney and began advocating for reforms in the criminal justice system.