Bronx Assemblyman Nelson Castro was caught red-handed and indicted in 2009 for acts of perjury in connection with his qualification for the ballot. Instead of blocking this man from office, federal prosecutors offered a deal. Castro would be allowed to walk, eventually, if he agreed to wear a wire while serving in the Legislature. He signed on. He not only served out his term, but while on the prosecutor's hook ran for re-election twice, and won both times. That is, he continued to serve in public office while an admitted felon, with the prosecutorial complicity.
The results after four years: another Bronx assemblyman, Eric Stevenson, bagged for corruption; another scramble among New York politicians to sponsor anti-corruption measures; lots of additional talk about corruption in New York being more rampant than anywhere else in the nation (there is no standard of proof for public discourse); and considerable prosecutorial self-congratulation, accompanied by pledges of eternal vigilance and promises of more to come.
Also, one assemblyman will likely enter the Guinness Book of World Records for successive days wired while in office. And a former state senator, Shirley Huntley of Queens, also was wired by federal prosecutors.
In recent polls on trust in institutions, Americans said that they held the military in highest regard, and trusted the Congress least. Forget the politicians; give us the praetorians.
Maybe that's why so many of our aspiring chief executives in New York want to be prosecutors, politicians in praetorians' garb. It works.
Gov. Tom Dewey was a federal prosecutor; so was Mayor Rudy Guiliani. As Gov. Andrew Cuomo recently reminded us, the attorney general of New York is not a criminal prosecutor. But Eliot Spitzer found a way to use previously neglected powers of the office to become the sherriff of Wall Street, and ride the resulting publicity to his ill-fated governorship. And Cuomo, following in his footsteps, did more or less the same thing.
"For any speech or debate in either house of the Legislature," the state constitution says, "the members shall not be questioned in any other place." Peter Galie, the pre-eminent contemporary authority on the New York Constitution, tells us that the reason for this provision is that "Freedom to debate openly any issue or question without reservation is indispensable to effective representative government."
Of course, members are not immune from the consequences of their statements while off of the legislative floor, and are elsewhere in the state constitution held accountable for official misconduct. But is it possible that the informed discourse we seek on issues would be even harder to obtain from legislators worried that a colleague is wearing a prosecutor's wire?
I was a county legislator and legislative leader for 12 years, and have professionally hung around the state Legislature — soaking and poking — for more than four decades. I know that most legislators are honest, and that legislating is very much about building trusting relationships.
But no matter how honest a member is, how trusting will he or she be, how forthright, if any colleague may be a walking tape recorder?
We are rightly critical of our state Legislature. Money plays too big a role. Elections are not competitive. Issues are rarely truly debated. Corruption is far too big a problem, and must be curbed. But barely limited prosecutorial discretion is not the way to restore real representative government.
Am I the only one in New York who is worried about the implications for our representative democracy of the growth in government by prosecutor?
Gerald Benjamin teaches at the State University at New Paltz.