How New York Lets Prosecutors Off The Hook for Misconduct

Not a single prosecutor appeared to have been disciplined for on-the-job misconduct in 2019. Even the state prosecutors association supports reforms.

Rory Fleming   ·   September 1, 2021
The Ontario County Courthouse | Doug Kerr

In Canandaigua, a small town near Rochester, Jeffrey Taylor recently retired as an Ontario County Assistant District Attorney. In the thirty years he held the job, he successfully argued cases before the state’s top court and received recognition for his charming photographs of the local courthouse, where Susan B. Anthony was put on trial in 1873. This year, he’s running for Webster Town Justice.

But Taylor has also been found by courts to have committed repeated acts of prosecutorial misconduct—without ever receiving consequences from the state bar. His case exemplifies what critics say is a state court system that acknowledges prosecutorial misconduct, but rarely demands personal accountability for it.

In a burglary case, Taylor allowed a state witness to lie about not receiving immunity in exchange for her testimony. In a child sex abuse case, Taylor twice said one of the victims didn’t talk about certain details on the stand out of fear that people would think he was gay, despite this not being in the record. And in another sex abuse case, he misled the jury on the state of the law. 

In a 2012 ruling, the Fourth Appellate Division of the New York Supreme Court wrote that it had “repeatedly admonished Mr. Taylor for various acts of misconduct, yet the record on this appeal establishes that his misconduct has continued.”

To date, Taylor has no public record of attorney discipline, according to online records from the New York State Unified Court System.

Taylor could not be reached for comment. Ontario County DA James Ritts told New York Focus that there was no documentation of discipline for Taylor, but added that “around the third decision Mr. Taylor was reassigned to local courts and removed from the felony rotation.” (Ritts himself has been slapped by the bench for misconduct.)

State leaders have long tried to find new ways to ensure that prosecutors act according to their ethical responsibilities, and former Governor Andrew Cuomo signed legislation to create a prosecutorial ethics commission in June.

But many sources familiar with the court system call for more far-reaching changes in policy and prosecutorial culture. Even the president of the state prosecutors association told New York Focus that "the grievance process should be re-examined to improve the discipline process.'' 

This year, a new coalition of professors and public interest groups called Accountability NY launched an effort to create consequences for prosecutors found to have committed misconduct. This group has filed bar complaints against 21 current and former Queens prosecutors since the beginning of the year, and it plans to expand to other New York City boroughs soon.

Harmless Error?

The definition of prosecutorial misconduct depends on who you ask, but the basics are well-established. Prosecutors can’t hide evidence that could reveal a defendant’s innocence; they can’t strike jury candidates on the basis of race or gender; and they can’t use certain arguments in trial, such as implying that a person is guilty because of their refusal to testify.

There’s no way to reliably know how frequently misconduct occurs, given that much of it never comes to light. But a study from the National Registry of Exonerations examining the 2,400 exonerations on record from 1989 to early 2019 found that prosecutorial misconduct was a factor in 30 percent of the cases. In these cases, prosecutors’ bad behavior resulted in wrongful convictions of innocent people. In untold others, judges have found prosecutors to have engaged in misconduct but ruled it to be “harmless error.”

New York’s primary mechanism for prosecutorial accountability is the state bar’s “grievance committees” in each of the four appellate divisions of the New York Supreme Court. These committees take complaints from members of the community, then investigate and determine whether discipline is warranted.

Critics like Brooklyn Law School professor Cynthia Godsoe say the grievance committees are feckless - in part because "prosecutors have a lot of power and prestige with the bar" and are reluctant to punish their own.

Representatives of the Seventh Judicial District of the Fourth Appellate Division, which handles attorney disciplinary matters for Ontario County, where Taylor practices, and seven others, did not respond to questions from New York Focus. These included queries on whether the Division collects any data on how many complaints are made against prosecutors, how many of those complaints result in an official investigation, and what percentage of those investigations result in discipline.

Calls made to other Judicial Districts were also not returned. 

But in 2019, the most recent year the New York State Bar Association has published data on bar complaints, not a single prosecutor appeared to have been disciplined for on-the-job misconduct. (The most common reasons for discipline were instead forms of misconduct that can only be committed by private practice attorneys, such as the misappropriation of client funds, as well as the commission of crimes.)

It's unclear how many complaints of prosecutorial misconduct were even investigated; state law requires that misconduct investigations are kept private until discipline is actually imposed.

Prosecutors Open to Some Accountability

Anthony Jordan, president of the influential state district attorneys’ association, told New York Focus in a statement that the grievance process should be strengthened by implementing the recommendations of the New York State Justice Task Force, a body that was created by former Chief Judge Jonathan Lippman in 2009.

Those recommendations include specialized training on criminal law for grievance committee members, better data collection, representation from both the prosecution and defense bars on the committees, and ensuring that court findings of misconduct spur investigations.

Instead of enacting these changes, the legislature opted to create the new prosecutorial ethics commission.

In the meantime, Jordan said, individual DAs take it on themselves to promote prosecutorial accountability.

“In addition to external checks on the conduct of prosecutors, individual District Attorney's offices have their own established procedures and protocols for ensuring the ethical conduct of prosecutors. Failure to to maintain proper conduct can lead to sanctions against an Assistant District Attorney which may include retraining or even dismissal in some appropriate instances,” he said.

But prosecutors’ offices tend to be highly secretive about what internal consequences attorneys face for misconduct, if any.

The Brooklyn DA’s Office recently issued a report examining 25 wrongful convictions its Conviction Review Unit discovered. The Brooklyn DA reopened the cases and ultimately asked judges to dismiss the charges in each. Cumulatively, the wrongfully convicted individuals in the report spent 426 years in prison for crimes that they did not commit. 

Twenty-one of these wrongful convictions involved prosecutorial misconduct, including concealing potentially exculpatory evidence and emphasizing baseless witness testimony to help ensure a conviction. But when asked whether any prosecutors who handled these cases were disciplined, Brooklyn DA spokesman Oren Yaniv only said that, as a general matter, “substantiated misconduct is referred to the Grievance Committee.”

Asked about whether the office has a general protocol to address discipline for prosecutors who have committed misconduct leading to wrongful convictions, Yaniv said that “there is no specific protocol for wrongful convictions, but all allegations of prosecutorial misconduct are investigated internally to determine if any discipline, up to termination, is appropriate.” 

One borough over, Alvin Bragg recently won the Democratic primary to be the next Manhattan DA. Before the primary, Bragg told New York Focus that he would purge convictions in which prosecutors found to have committed misconduct have played a role, but he did not respond to requests to provide more details for this article.

A New Commission

Citing the need for more effective discipline mechanisms, Governor Andrew Cuomo signed a bill in June to create a new Commission on Prosecutorial Conduct.

Avid political watchers might have suffered from a bout of deja vu. Cuomo signed a bill creating a commission with the same name back in 2018. After threats of litigation from the district attorney association, Cuomo and legislative leaders agreed to suspend the commission before it became active.

Attempting to preempt reincarnations of the commission, the association sought a declaratory judgment that it was unconstitutional. Albany County Judge David A. Weinstein agreed with the prosecutors, finding that the commission, located in the executive branch of government, usurped the authority of the judiciary to discipline unethical attorneys. 

The commission created by the new version of the statute is different from the original in that it will not exercise independent authority to discipline prosecutors. Instead, it will simply offer recommendations to the various appellate divisions of the New York Supreme Court—meaning that the committees currently responsible for disciplining prosecutors will continue to call the shots.

Both versions also charge the commission with advising the governor on whether prosecutors should be removed from office. Removal of a DA is power already vested in the governor by the state constitution, but governors seldom use it.

Godsoe, who closely watched as the bill moved through the legislature, said the commission is an “important and necessary step” but is far from a complete solution.

“While the commission contains many important provisions—including those reiterating the ability of the governor to remove a prosecutor for misconduct—it also relies on the state’s current bar disciplinary process, which seems to be neither transparent nor effective,” Godsoe said. “Hopefully, the commission will bring much-needed attention and reform to this issue, including from the self-regulating legal profession.”

In the meantime, Jeffrey Taylor will continue to run his campaign for local judge. If he is elected, he won’t be the first judge in the area elected to the bench despite a history of substantial misconduct.

After losing her candidacy for Ontario County DA to Ritts, Kristina Karle ran for one of Ontario County’s trial judge seats and successfully became its first female judge. She is now one of only three trial judges in the county.

Yet Karle, whose secretary declined to make her available to comment, was found by courts to have repeatedly committed prosecutorial misconduct in multiple cases—misstating evidence in one case, improperly grilling a defendant for impregnating three women and failing to pay child support in another, and, in a third, using a string of impermissible tactics so “egregiously improper” that the top state court reversed the conviction.

Like Taylor and Ritts, Karle has no public record of discipline with the state bar.

9/2: A paraphrase of a comment by Professor Cynthia Godsoe has been clarified.

Rory Fleming is an attorney and legal journalist. His journalism and academic work has been cited in the Minnesota Law Review, Wisconsin Law Review. Hofstra Law Review, U. of St. Thomas Law Review, Harvard Law and Policy Review, UC Berkeley Journal of Criminal… more
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