A new bill in Albany could resurrect hopes for an independent agency dedicated to investigating prosecutorial misconduct. The proposed commission would give New Yorkers a direct avenue for filing complaints against prosecutors and make its misconduct findings and investigative proceedings public. It would also send dismissal recommendations to the governor for prosecutors with substantiated misconduct.

Assemblyman N. Nick Perry, a Democrat representing East Flatbush and Canarsie, introduced the legislation earlier this month. “So many people have been wrongfully convicted and, alarmingly, so many of these wrongful convictions have been blamed on misconduct by the prosecutors,” Perry said. “It is extremely important that when we have a process to bring your complaints, that the complaint will be seriously investigated, that the findings of wrongful convictions are not buried and discarded.”

Data from the National Registry of Exonerations shows that prosecutorial misconduct has historically been a key factor in wrongful convictions nationwide. And in New York, criminal defense and innocence organizations have long criticized the existing accountability mechanisms.

“For decades we have not been able to rely on the courts or prosecutors’ offices themselves to hold individual prosecutors accountable, even when they have already been found to have committed serious misconduct,” said Nina Morrison, senior litigation counsel at the Innocence Project. “We need this commission to provide greater independence and greater transparency to the process of investigating real grievances made by citizens against the prosecutors who serve their community.”

Right now, state courts can choose to sanction prosecutors privately without disclosing complaint proceedings to the public. And district attorney’s offices have frequently retained, or even promoted, prosecutors despite major ethical violations. A Gothamist investigation last year, for example, identified thirteen Queens prosecutors who held top leadership positions, even though their misconduct was flagged in court decisions that sparked mistrials, set aside verdicts, or nullified convictions.

This year’s assembly bill is not Perry’s first attempt at enacting a commission on prosecutorial conduct. In 2018, Governor Andrew Cuomo signed an earlier version of the legislation into law. But a court struck it down last year, after the District Attorneys Association of New York (DAASNY) raised constitutional concerns.

A spokesperson for Albany County District Attorney David Soares, who was the lead plaintiff in DAASNY’s legal challenge, declined to comment on the new bill, noting that the litigation concerning the original bill is still pending.

Morrison, the Innocence Project attorney, says that the grievance committees, which currently investigate attorney misconduct in New York for the courts, are not equipped to handle cases involving prosecutors.

“Prosecutorial misconduct cases require a lot of expertise, and many attorneys who work for the grievance committee don’t have a background in criminal law,” she said, adding that the committees sometimes fail to properly investigate prosecutorial misconduct specifically because of their heavy workloads, which include numerous probes of attorneys accused of administrative violations like financial misappropriation or fraud.

Morrison points to the high-profile recent example of Glenn Kurtzrock, a Suffolk County prosecutor who resigned in 2017 after a defense attorney found he had failed to turn over key evidence in the murder trial against Messiah Booker. Among other things, Kurtzrock withheld materials implicating an alternative shooting suspect, as well as information that undermined the credibility of one of the prosecution’s main witnesses.

Hours after Booker’s defense team began describing the evidentiary violations, the District Attorney’s office offered to drop Booker’s murder charge down to burglary, which he accepted. That day, the Suffolk County District Attorney asked Kurtzrock to resign.

Despite the serious nature of Kurtzrock’s violation, the disciplinary consequences from the court system itself was fairly limited. In December, an appellate court suspended Kurtzrock’s law license for two-years, in part, because the court believed that there was “no showing that he engaged in any similar conduct in any other cases.”

Morrison argues that this finding was based on a misunderstanding of Kurtzrock’s record. In fact, Kurtzrock had been the lead prosecutor on another murder case in which prosecutors withheld evidence and secured the conviction of Shawn Lawrence, a Black man who served six years of a 75-to-life sentence in prison before he was finally exonerated in February of 2018. Despite the fact that Lawrence’s exoneration was widely reported on at the time, the court did not refer to the case in its disciplinary decision about Kurtzrock.

“There’s a fair amount of evidence that when it came to Glenn Kurtzrock, they fell down on the job,” Morrison said, referring to the court-appointed grievance committee who investigated him. “It took nearly four years for him to be disciplined. The decision that resulted from their investigation and prosecution contained a fundamental error about his history.”

Kurtzrock’s attorney, who previously told Newsday his client did nothing wrong in the Lawrence case, declined to comment for this story. In a statement, a spokesperson for the Suffolk County DA’s office, Kurtzrock’s former employer, said the office is reviewing all of his past cases. “Once that analysis is complete, we will provide a report on our findings to both the public and to the Grievance Committee so they may determine if any further investigation or additional sanctions are necessary,” the DA’s office said.

The bill to create a new state commission on prosecutorial conduct has moved out of committee and is now on the Assembly floor. A spokesman for Assemblyman Perry said he hopes it will be voted on next week.

George Joseph reports for the Race & Justice Unit at Gothamist/WNYC.