Lawyers Question Consequences Of Cuomo Recusal

Bruce Green in City Hall, March 12, 2010

Media Source

By Sal Gentile and Andrew J. Hawkins

Attorney General Andrew Cuomo said on Thursday that ethical questions prompted him to recuse himself from his office’s investigation into Gov. David Paterson. But Cuomo’s decision may raise even more ethical questions, legal experts and former prosecutors say, including what happens to the two weeks’ worth of work Cuomo’s investigators have already done.

Cuomo said that his office has already reviewed thousands of pages of documents and interviewed dozens of witnesses, including members of Paterson’s staff and the woman at the center of the abuse case.

Paul Shechtman, a former chair of the State Ethics Commission and former chief of the criminal division for the U.S. Attorney’s office, suggested that the independent counsel charged with supervising the investigation, former Chief Judge Judith Kaye, might want to retrace some of Cuomo’s steps, given that she will be responsible for issuing a final report on the matter.

“Any special prosecutor of Judith Kaye’s experience and ability will want to re-interview key witnesses before they make any final determination,” Shechtman said. “I have a sense of how tirelessly Attorney General Cuomo’s lawyers and investigators have worked on this matter, and it’s regrettable that that work has to be redone.”

Reached Thursday afternoon, Kaye declined comment about her new role. Cuomo’s office did not return a call seeking information on how the investigation would be staffed going forward, though Cuomo has the authority to keep attorneys in his office working on the case. Kaye herself will not be paid for her work, and will be handling the case independently of Skadden Arps, the firm where she is of counsel.

Shechtman also suggested that Cuomo might have avoided the appearance of impropriety altogether by referring the allegations against Paterson to their respective district attorneys, which have jurisdiction in both cases. Bronx District Attorney Robert Johnson has already said his office is weighing whether to open an investigation into the domestic abuse case.

“Conflicts of interest could have been avoided here if these matters were referred in the first instance to the appropriate district attorneys’ offices, which historically are the state’s special prosecutors,” Schechtman said.

Schechtman’s opinion was not shared by Roy Simon, a professor of law at Hofstra University and the vice chair of the state Bar Association’s Committee on Standards of Attorney Conduct.

“I don’t think she has to duplicate the investigation,” Simon said, adding that Kaye would have to decide on a case-by-case basis whether witnesses or documents already reviewed by the attorney general’s office would have to be reanalyzed.

“If she thinks more investigation is necessary, she will send them out to re-interview somebody, get more documents, or do whatever is necessary to complete the investigation,” Simon said.

And Bruce Green, a professor of law at Fordham University and former assistant U.S. Attorney, rejected the idea that Cuomo could have avoided conflicts of interest by referring the Paterson cases to their respective district attorneys. Green argued that such a decision would have seemed even more political, by creating the appearance that Cuomo was avoiding the investigations for the sake of his own political career.

“He’s the elected attorney general. He has the authority and mandate to investigate public corruption,” Green said.

Of the suggestion raised by some that instead of turning matters over to Kaye, Cuomo drop the investigation, Green added, “That would be the most brazenly political decision-making possible.”