How the Justice Center for the Protection of People with Special Needs currently does business opens up a dangerous door, and sooner or later it will get challenged.
The name, corny as it is, does indicate the center has our most vulnerable citizens in its best interest, and it probably does. Really, who doesn’t want to make sure those with developmental disabilities, autism and other issues aren’t abused, neglected or harmed in any way?
And there is clearly a need for such oversight. Since opening its doors in June 2013, the center has investigated thousands of cases. Given the nature of the victims, and the media attention that some of the more shocking crimes generate, the center, despite some criticism, has probably done some great things and does have the potential to do even greater things.
At issue, though, is how Gov. Andrew Cuomo set it all up and how the noble objective is carried out.
As the law is written, the center acts as a carte blanche special prosecutor in all complaints filed at any of the more than 3,000 state-sanctioned, licensed or certified facilities. It is designed to work “concurrently” with local district attorneys, and while a cooperative agreement is innocuous at first glance, even admirable, it is the crux of a legal challenge and at the root of why it’s such a dangerous door.
Think about it.
A political appointee with the power to investigate and bring criminal charges whenever they see fit. The appointee doesn’t answer to the people via an election, or to anyone except the person who did the appointing.
Should that person have a grudge, what’s to stop the “special prosecutor” from investigating and/or bringing charges against the political or personal foe. The prosecutor does not have a check and balance like a district attorney or the attorney general – the only two entities having the power to bring criminal charges according to our state’s constitution – who answer to the electorate.
“A person’s reputation can be ruined, employment terminated and finances placed in jeopardy, regardless of whether that person is later acquitted or the charges dropped,” wrote Court of Appeals Justice Jenny Rivera in a dissenting opinion of a recent criminal case that claimed the Justice Center’s jurisdiction is unconstitutional. “Under our constitution and case law, the awesome power of unchecked prosecutorial authority requires oversight and cannot be held by an unelected official.”
I’m not saying the center’s special prosecutor/inspector general, Patricia Gunning, has any sort of political axe to grind, or that she would necessarily grind an axe on Cuomo’s behalf, but a less scrupulous person in that position could have that power. Protecting people with special needs certainly doesn’t deal with the type of clientele that would be in anyone’s political cross-hairs, but it does open the door to that scenario playing out should Cuomo and the legislature follow the same model in other arenas.
And they are already trying.
In light of a bid-rigging scandal that landed a top Cuomo aide and others under indictment, the governor wants appoint a full-time special prosecutor to investigate, and when necessary prosecute, allegations of wrongdoing in the state’s procurement process.
Just acting on a hunch here, but I’m guessing how state contracts are awarded and to whom they are awarded is a bit more politically charged than going after underpaid, undertrained, over-worked staff who deal with a difficult segment of the population.
There really shouldn’t be any difference, though, because once the door is open, there is no way to restrict some and allowing others to walk through. Potential motive is secondary to the basic premise Rivera talked about.
The case is known as The People versus Davidson and it started in Tompkins County when the Justice Center brought assault charges against an employee of Finger Lakes Residential Center for juvenile delinquents, Martesha Davidson, for hitting a 14-year-old in December 2013.
Her attorney didn’t “preserve” the constitutional challenge as the case worked its way through the lower courts, but Attorney General Eric Schneiderman stepped in and argued the state constitution does not allow the Justice Center to prosecute without having the “consent” of the local DA. Furthermore, the AG argued, that the local DA must take responsibility for the case.
Because of the preservation technicality, the majority on the Court of Appeals didn’t address the constitutional issues, but Rivera must have thought it important enough to write a strongly worded dissenting opinion. Schneiderman quoted her opinion in a letter opposing the creation of a special prosecutor to oversee the state’s procurement procedures.
The issue, and Schneiderman, are also front and center in the case of Marina Viviani, a former teacher at the LaSalle School on Western Avenue who the Justice Center charged with raping one of her former students.
Her attorney, Michael Pollok, did not make the same mistake as Davidson’s attorney and made the constitutional issue a focal point of his defense. Schneiderman wrote a brief recommending Judge Thomas Breslin clarify the role District Attorney David Soares played in the case.
Did his office grant consent to the Justice Center? Or did it just sign off on the Justice Center’s desire to bring charges? In the brief, Schneiderman’s office again extensively quotes Rivera’s opinion so the issue is not going away.
There is a bit of chess-like strategy afoot with Viviani too.
Pollok claims the proof the Justice Center has against his client is tenuous at best, and at worst the “victim” has ulterior motives and fabricated the entire story. Of course, all defense attorneys say that, but I’ve seen some of what Pollok has and I would be shocked if any jury in the world would convict Viviani of rape.
The Justice Center prosecutors must know they have a weak case, and, more importantly, they must know there won’t be any technicality preventing the constitutional questions from coming under judicial scrutiny. If they dismiss the charges, the constitutional challenge goes away too.
This time, anyway.
Sooner or later, the issue will be addressed. Despite honorable intentions, the door Cuomo opened to create the Justice Center should remain closed.
Jim Franco can be reached at 518-878-1000 or by email at email@example.com.