Independent Oversight of Prosecutors Could be Valuable in Some Cases - Sam Rosenthal

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    An October 3, 2013 Law360 article quoting New York Partner Sam Rosenthal discusses a measure proposed recently by Brooklyn Democrat N. Nick Perry. The legislation would create a state commission in New York on prosecutorial conduct whose 11 members would be chosen by the governor, the majority and minority leaders of the Legislature and the Court of Appeals. The panel would be tasked with holding prosecutors accountable for abuses in policing. The legislation was published after Gov. Andrew Cuomo predicted investigators on his anti-corruption Moreland panel — empaneled in July and loaded down with prosecutors after the Legislature refused to pass his campaign finance reform and anti-corruption bills — would likely begin issuing subpoenas to lawmakers who have refused to divulge details about their outside sources of income. A newly published sponsor's memo says Perry is pushing for the panel, which would be modeled after the state's Commission on Judicial Conduct, because a number of high-profile cases have fostered increased discussion and analysis of prosecutorial misconduct and related wrongful convictions. Despite Perry's concerns there are key ways in which prosecutors can — and sometime are — checked, according to Mr. Rosenthal. “Prosecutors are supervised not only within their departments, within the executive branch, and also when they go into court. The courts themselves have the ability to punish their misconduct and for prosecutorial abuses — and that does in fact occur," Rosenthal said. “There aren't that many ways in which judges are supervised." That said, he agreed with the notion that there nevertheless appear to be cases in which independent oversight of prosecutors could be valuable. “Sometimes they cross the line — and there ought to be a way to do something about it,” Mr. Rosenthal said. “But if this commission is intended as a way of responding to the Moreland Commission, that's probably not an adequate justification for it.”

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