Q&A: How one DA handles recusals

John J. Flynn is Erie County District Attorney and president of the District Attorneys Association of the State of New York. Flynn is also chair and past president of the National District Attorneys Association. Without commenting directly on the Megan McDonald case, Flynn spoke about how recusals work. This interview was edited and condensed for space.

Can you talk about the different ways a DA would decide to recuse themself?

The first one's easy. I'm the DA. My son gets a DWI. Obviously, I've got a direct conflict there. That's a no brainer. I'm going to get a special prosecutor to handle my son's DWI. But if you believe that you have some kind of an internal conflict or if you believe that it is just going to look bad, that it's going to be a public-perception problem of handling this case, even though you may feel that it's not, that's a reason to get a special prosecutor.

Sometimes, defense attorneys are elected district attorney. Would that trigger a recusal?

There are those that fall more in the category of a public perception. If a case was prosecuted under a D.A. who was (the defendant’s) previous defense lawyer, that's going to be an automatic conflict right there. Obviously, he can't be the DA when he was previously a defense lawyer on the same case.

How do you start a recusal?

If a district attorney says, "You know what? I believe there is a conflict here," then we as a DA's office file a motion with the judge. Only certain judges can hear these motions. In New York, it's either the administrative judge of the district that you're in or someone designated by the administrative judge.

Can anyone suggest a conflict exists?

The defense lawyer can make the same motion, too, saying "I believe the DA has a conflict here and, me, the defense lawyer, I'm asking you to appoint a special prosecutor." Now, that's very rare. In my six and a half years that only happened once: 99 out of 100 times, it is the DA making the motion.

Do you recuse your office often?

I probably do one a month, for various reasons. One: I know a lot of people in this town and a lot of people I know get a DWI or whatever. And I've got 200 staff members here. Invariably, like once every few months, someone on my staff has a brother or a sister or a son get a DWI or whatever or something. So we’ve got to get a special prosecutor.

The appearance of a conflict can sometimes be enough for a recusal?

I take that public perception aspect pretty seriously, and I don't want the public thinking that I'm doing anything wrong. I'm super sensitive to the public's thinking that anything is amiss here. So if it's a close call, I'm going to ask for a special prosecutor, and then the judge can just say no. Then I'm covered now. So if anyone criticizes me for handling the case, I can say, "Hey, I tried to get it removed. I asked the judge and the judge said no." But it's all up to the DA and what their personal preferences are. I file a lot of recusal motions.

Can a DA recuse themself before it gets to the prosecution phase of a case?

Yes. You can get a special prosecutor assigned even before you make an arrest. I've done that. In the investigation aspect, you can go to the court -- it's called a “John Doe motion for recusal.” I go to the court and say, "Judge, I'm asking for a John Doe special prosecutor here on an investigation, where I believe that I should not be handling this investigation. And I want a special prosecutor appointed to just do the investigation." We're pre-arrest, pre-everything, here. That's much rarer, and you don't necessarily have to do that.

Why not?

Because you can have the State Police or the Buffalo Police Department or whatever, you can have them be the lead investigator and the main investigator and say to them: "Listen here, I don't want to know anything about it. OK? So I'm going to put one of my deputy DA's in charge of this, and create a Chinese wall. You, State Police, do the investigation. You lead the investigation and you report back to my deputy DA and brief him or her. Once you complete your investigation and we're about to make an arrest, at that point we'll get a special prosecutor." Once the arrest is made, I definitely can't handle it because my name is on every piece of paperwork. There's definitely a conflict once an arrest is made, but not necessarily pre-arrest during investigation. As long as you create a Chinese wall.

Are there times a Chinese wall won’t work?

The nature of the conflict may dictate which way you go. If it's an office-wide conflict, then obviously you can't create a Chinese wall. An office-wide conflict would be if the target happens to be a relative of an employee of the office. You can't create a Chinese wall for that, obviously. The conflict permeates the office and you have no choice but to do a John Doe special prosecutor.

Reach Peter D. Kramer at pkramer@gannett.com. To support this kind of reporting, subscribe at www.lohud.com/subscribe.

This article originally appeared on Rockland/Westchester Journal News: Q&A: Erie County DA John Flynn on how and when to recuse