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Lawsuit stalls panel designed to probe prosecutorial misconduct

Keith Bush thinking about his future while overlooking

Keith Bush thinking about his future while overlooking Long Island Sound toward Long Island at Seaside Park in Bridgeport, Conn., on March 30. Credit: Newsday / J. Conrad Williams Jr.

The newly created state Commission on Prosecutorial Conduct won’t be examining alleged misconduct in the “innocent man” case of Keith Bush anytime soon because of legal opposition to the watchdog agency by a statewide group of prosecutors.

Bush says the new state commission should investigate possible wrongdoing by several past and present Suffolk prosecutors who had access to Bush’s case but never disclosed evidence of another potential suspect, John W. Jones Jr. On May 22, a Suffolk judge cleared Bush of the 1975 murder of North Bellport teenager Sherese Watson, after Bush had served 33 years in state prison.

“It is the perfect case” for the new state commission to investigate, said Bush’s attorney, Adele Bernard, who runs the New York Law School Post-Conviction Innocence Clinic.

In May, a report by Suffolk District Attorney Timothy Sini’s Conviction Integrity Bureau concluded that Bush’s trial prosecutor had deliberately hid evidence about Jones.

However, Bush’s call for an independent probe of alleged prosecutorial misconduct in his case is being effectively thwarted by the District Attorneys Association of the State of New York, of which Sini is a member. The group has filed a lawsuit challenging the legality of the commission, which was approved by the State Legislature and Gov. Andrew M. Cuomo in March. Appointments to the 11-member commission — as well as any potential probes of prosecutorial misconduct — have been put on hold while the state lawsuit filed in Albany plays out.

“Understand that prosecutors are not against oversight,” said Morgan Bitton, the DA group’s executive director. “We are however opposed to the unconstitutional commission set up by this legislation that violates the separation of powers and interferes with prosecutorial discretion.” In its lawsuit, the association argues that oversight of prosecutors is already in place with the state’s grievance process, which applies to all attorneys.

Cuomo said the new commission is necessary to root out prosecutorial misconduct, stop wrongful convictions, and avoid costly retrials and settlements at taxpayer expense. The investigative agency would have powers to admonish, censure, or recommend the termination of employment of prosecutors who have behaved unethically. Supporters say Cuomo’s new panel is similar to the state’s Commission on Judicial Conduct regulating judges.

“You have people like Bush sitting in jail for years because of the malfeasance of a prosecutor and in those cases, they should be punished,” said State Sen. Phil Boyle (R-Bay Shore), a sponsor of the bill creating the new commission. “Most prosecutors are honest and hardworking but there’s a need for oversight — we do that with judges and we should do that here.”

Court papers defending the new commission have cited the alleged wrongdoing in the Bush case and the need for oversight. “Prosecutors who engage in misconduct rarely face even the slightest admonishment,” according to a legal brief filed by Bernhard’s clinic and several others opposing the DA's group in the lawsuit. “Serious sanctions are even more uncommon. This is true despite the often devastating consequences of such misconduct.”

For Sini, the question of whether the new state commission will investigate the Bush case is a complicated one.

He has been critical of past practices by some in Suffolk law enforcement, particularly his predecessor, Thomas Spota. Spota told Newsday he doesn’t remember the Bush case and said he doesn’t ever recall Gerard Sullivan, the prosecutor in the Bush case and once a law partner with Spota, doing anything improper when they worked together.

Spota is expected to begin a trial Nov. 12 on federal charges that he covered up a prisoner beating by former Suffolk Police Chief James Burke. In February 2016, Burke pleaded guilty and was given 46-month sentence.

In 2017, Suffolk prosecutor Glenn Kurtzrock was forced to resign for alleged prosecutorial misconduct in several Suffolk murder cases, eventually including that of Shawn Lawrence, who was freed after six years in prison.

Last month, reacting to problems found in the Bush case, Bernard and Sini’s office received two federal grants totaling $850,000 to work together in reviewing more than 100 other claims of innocence in past Suffolk convictions and recommend any systemic changes in the county’s law-enforcement system.

However, Sini has supported the statewide DAs group in opposing the new state commission on constitutional grounds. Sini declined to be interviewed for this story. But his office has said privately that an independent probe of the Bush case isn’t necessary. They expressed confidence that the CIB’s lengthy review was thorough but didn’t yield enough legal evidence to charge any police or prosecutors with wrongdoing.

Sullivan — a key player in the Bush drama — died in 1993. The CIB determined that Sullivan knew about a written statement that Jones, the other potential suspect in the Watson murder, gave to Suffolk homicide detectives, placing himself at the murder scene at the time of the teenage girl’s killing. But Sullivan never revealed that evidence at Bush’s 1976 trial in violation of legal rules.

In addition to Sullivan, a Newsday investigation found several Suffolk prosecutors had access to Bush’s file over the past four decades — including two who are now judges and a third who remains employed in Sini’s office — though no evidence has been disclosed publicly that they knew about Jones’ existence. All have declined to be interviewed.

Though grateful to Sini’s CIB probe that led to his exoneration, Bush remains frustrated that no Suffolk official so far has been punished for alleged improprieties in his long-running case. “I don’t think all the questions will be answered in my case unless there is an independent reviewer like this commission,” said Bush. “If the president can be impeached, why are prosecutors above the law? I lost 44 years of my life because they tried to hide the truth.”

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