IT'S A BIRD, IT'S A PLANE....

With all the talk about the Special Prosecutor we thought we'd take a look at the appointment and powers of the office.

First, the official title of the appointed SP is "Special District Attorney." A Special District Attorney has the following powers:

1) Must be addressed as The Right Honorable Mr./Ms. Special District Attorney Esq.;

2) An SP has the same authority in an investigation or case that any District Attorney would possess;

3) That authority lasts through the final disposition of the matter;

4) They may, but are not required to, wear a cape;

5) They may have a secret identity, usually as a newspaper reporter, but this is not mandatory.

The SP is not born with these powers. Like Spiderman, these powers come from an outside source. In this case, County Law.

NY CLS County § 701 (2007)

§ 701. Special district attorney

1. Whenever the district attorney of any county and [fig 1] such assistants as he [fig 2] or she may have shall not be in attendance at a term of any court of record, which he or she is by law required to attend, or [fig 3] are disqualified from acting in a particular case to discharge his or her duties at a term of any court, a superior criminal court in the county wherein the action is triable may, by order:(a) appoint some attorney at law having an office in or residing in the county, or any adjoining county, to act as special district attorney during the absence, inability or disqualification of the district attorney and [fig 1] such assistants as he or she may have; or(b) appoint a district attorney of any other county within the judicial department or of any county adjoining the county wherein the action is triable to act as special district attorney, provided such district attorney agrees to accept appointment by such criminal court during such absence, inability or disqualification of the district attorney and such assistants as he or she may have.

2. If, for any reason, the appointment of a special district attorney cannot be effectuated pursuant to paragraph (a) or (b) of subdivision one of this section, the court shall then attempt to effect such appointment pursuant to the other such paragraph.

3. Where a special district attorney appointed under this section is a district attorney, he or she may direct the exercise of such powers and the performance of such duties by any assistant in his or her office in any case in which he or she serves as special district attorney to the same extent permitted by law in any case in which he or she serves as district attorney.

4. No appointment made under this section shall be for a period beyond the adjournment of the term at which made. Where, however, an appointment is required under this section for a particular case because of the disqualification of the district attorney, the appointment may be made for all purposes, including disposition. The special district attorney so appointed shall possess the powers and discharge the duties of the district attorney during the period for which he or she shall be appointed. The provisions of this section shall also apply to a county wholly contained within a city.

We've highlighted some of the more interesting points.

It appears that a District Attorneys Office may decline such an appointment. Which makes us wonder if the Office that is offered the appointment reviews anything prior to agreeing to act as SP. Can they take a peek and say, "Nah, not interested," or "Yippee, look at this!" Or, do they agree to the appointment and run the risk of getting a big, warm pile of....dumped on their desk? The former seems logical.

Although they possess the same powers as a District Attorney, the scope of that power is limited to the Order of the judge. They can only prosecute those named in the order. If further information is developed we are unsure of the process. Clearly, any potential crimes uncovered during an investigation won't be ignored. We're just unsure if the SP can apply to the Court for an amendment to the Order or if the whole process, as to other potential crimes, has to begin again from square one. Any lawyers out there care to fill us in? Feel free.

When the case is finished, the SP typically walks away before the press arrives and is never seen again - unless the city finds itself, once again, in grave danger.