Cuomo taking Tankleff case has plenty of precedents

BY MATTHEW CHAYES | matthew.chayes@newsday.com

10:37 PM EST, January 12, 2008

It happened upstate in the racially charged Tawana Brawley case, when civil rights advocates questioned the objectivity of the local district attorney to investigate rape charges.

It happened when the Bronx District attorney said his personal feelings about capital punishment made him uneasy about seeking a death sentence for an accused cop killer.

And it happened in North Carolina when the district attorney prosecuting three Duke lacrosse players charged with gang rape became the subject of an ethics panel.

Now, at the request of Suffolk District Attorney Thomas Spota and others, the state attorney general has been asked to be the prosecutor in the Martin Tankleff case -- reinvestigating the evidence and looking into the possibility that the killer, or killers, of Tankleff's parents are still at large.

In this case, Tankleff's supporters have made the request because they question Spota's objectivity. Spota has asked for one to investigate new evidence Tankleff has brought forward.

Picking the office of Andrew Cuomo, New York state's top law enforcement officer, to handle the case is rare, though not unprecedented, said Stephen Gillers, legal ethics professor at New York University Law School.

"It's convenient. It's got a big staff. It's got a big budget," Gillers said. "This case has attracted substantial notoriety. Cuomo has to make sure that whatever he concludes is able to win public acceptance as legitimate."

The choice of the attorney general -- the job Spitzer held before becoming governor -- "shows how significant the issues are in Tankleff," said Barry Kamins, president of the New York City Bar.

"I think it signifies the importance that the governor has placed on the Tankleff case by virtue of putting Cuomo on it," Kamins said.

"The governor could have chosen any person. It didn't even have to be a prosecutor. It could have been a former prosecutor."

An outside counsel is typically appointed when circumstances in a case create a perception of a possible conflict of interest for the original prosecutor to go forward. Former Nassau District Attorney Denis Dillon, a strident abortion foe, would send abortion-related cases to a neighboring jurisdiction. Cuomo's father, Gov. Mario Cuomo, appointed Charles Hynes, now Brooklyn district attorney, special prosecutor in the Howard Beach race case because victims refused to cooperate with the Queens district attorney.

In all those cases, the governor's authority to appoint a special prosecutor came from his constitutional duty to "take care that the laws are faithfully executed" as well as a provision of the Executive Law allowing the jurisdiction of local prosecutors to be superseded.

Depending on the order commissioning them -- either by the governor or a court official -- special prosecutors can convene grand juries, issue subpoenas, bring charges and have similar powers to local prosecutors.