Backers of a New York commission for policing prosecutors are facing hard choices after a court found the watchdog to be in conflict with the state constitution, including whether to erase the group's authority to hand out punishments altogether.

If the third time is indeed the charm for the statute creating the commission, which was already revised once amid opposition from district attorneys, supporters may have to accept that the body must be stripped of its ability to directly sanction prosecutors in order to pass constitutional muster, according to experts.

That would leave individual appellate courts with the exclusive authority to penalize misbehaving prosecutors — an oversight authority many reform advocates see as underutilized, and a key reason that the commission was formed in the first place.

While the state hasn't announced next steps for the law after the Jan. 28 ruling — appeal the decision, rewrite the law, or both — some advocates say a less-powerful body can still shine a light on prosecutors who cross ethical or legal lines in pursuing convictions.

"It's all gotten very confusing and convoluted in this question of how to have this special appellate review system, and I don't know that it's even necessary," said Bennett Gershman, an expert on prosecutorial ethics at Pace Law School.

In mid-2018, Gov. Andrew Cuomo signed the first-of-its-kind legislation, which created a watchdog for investigating all kinds of conduct complaints — from basic negligence to "habitual intemperance" — against the state's 62 elected district attorneys and legions of assistant DAs who work under them.

As originally conceived, the 11-member commission of judges, prosecutors and defense attorneys would wield broad powers to initiate its own investigations, issue public reports, and censure or reprimand prosecutors. The commission could also call for the removal of prosecutors for cause.

Criminal justice reform advocates have long argued a watchdog with teeth was necessary to hold accountable a group of powerful lawyers, immune from civil actions, who wield enormous discretion in criminal cases with life-and-death consequences for defendants. Many have pointed to a near-total dearth of sanctions handed down by courts as clear evidence of a broken oversight system that looks the other way when it comes to prosecutor misconduct.

But amid sharp pushback from the influential state district attorney's office association and threats of a lawsuit, Cuomo also pledged to fix various constitutional flaws in the original version of the law.

Among the amendments included in the second version Cuomo signed last March was a process in which all the presiding justices of the state Appellate Division's four departments would hear prosecutors' appeals of determinations and sanctions by the oversight commission.

Under the original law, that role fell to the chief judge of New York's highest court, the Court of Appeals. The DA association has argued that this undermined the Appellate Division's exclusive — and constitutionally dictated — jurisdiction over all matters concerning attorney discipline, an argument they continued to raise against the system included in the amended statute.

In a lengthy dissection of the association's legal challenge, trial court Justice David A. Weinstein sided with the state on a number of key points, saying that it was "clearly permissible" for lawmakers to create a watchdog specifically for prosecutors and that the commission didn't invade DA authority.

But the judge did take issue with the appellate review process and legislators' attempt to "cobble together" a new kind of tribunal previously unrecognized by state law.

The court also noted the "diminutive" effect that the commission's power to publicly censure prosecutors would have on the judiciary's exclusive authority to regulate attorneys. The order also explored the possibility that a decision by the panel of presiding justices could conflict with an appeal of a prosecutor's disciplinary case that reached the state's high court.

"In short, creating an entirely separate avenue of appellate review from that created by the constitution is both impermissible under, and inimical to, the constitutional framework," he said.

The decision was a victory for the influential DAs association and its past president, David Soares, who lobbied extensively against what he characterized as an attack on prosecutor independence.

"This case was never about whether the conduct of state prosecutors could or should be overseen," said Jacob Gardener of Walden Macht & Haran LLP, co-counsel for the association, following the court decision. "It was solely about whether the method of oversight chosen by the Legislature is constitutional. As the court held, it is not."

Justice Weinstein's focus on what was intended to fix a previous flaw in the law raises a serious question about the viability of a body with its own power to sanction line-crossing prosecutors.

And in order to cure the appellate problems, some have suggested that the law be rewritten yet again so that all final sanctions and reviews of findings be in the hands of a prosecutor's local appellate department — the same oft-criticized structure now in place.

Defense attorney Marvin Schechter, who has been a vocal advocate for the commission, said a second "fixed" statute could do away with the censure-and-reprimand authority but include a dictate that all decisions by appellate panels stemming from commission investigations be made public. Under New York rules, attorney discipline matters are confidential unless and until a final sanction order.

The increased transparency would put pressure on courts and DAs to take the commission seriously, he argued, and thus mitigate the commission's loss of independent power to issue sanctions.

"There is a political side to this," he said. "If the commission issues a report and the New York Times editorial board says 'look what terrible thing happened in this case or that, and are they going to disbar this guy or not,' will the courts ignore it? I don't think so."

Other supporters noted that if the law was written to allow prosecutors to appeal commission findings directly to appellate panels, that would bypass the court's department-specific grievance committees.

Those committees, which are made up of unpaid attorneys and nonattorneys supported by court staff, investigate complaints against lawyers who practice in their jurisdictions and choose which cases to refer up to appellate judges for review and final dispositions.

"To me, the focus of this has always been to have a commission that is looking exclusively at prosecutors, and to help decide what kind of misconduct merits discipline and what doesn't," Gershman said. "And very often, the grievance committees don't do it."

Manhattan criminal defense attorney Joel Rudin, who joined an amicus in support of the commission, said even a nonbinding commission finding of misconduct would generate publicity, pressure DAs to take internal action or otherwise have a "salutary effect" on the justice system.

"We all know the present oversight is woefully inadequate, and there is a widespread belief that the grievance committees just don't follow through or find excuses" not to charge prosecutors, he said.

Rich Azzopardi, a senior Cuomo adviser, said the governor's office was reviewing Justice Weinstein's decision and exploring whether a legislative fix is an option.

Assemblyman Nick Perry, D-Brooklyn, who co-sponsored the commission bill, also indicated that no decision had been made on what to do next. He described the court decision as largely favorable for the state, and a "roadmap" for a review structure that will pass constitutional muster.

"What remedy does the prosecutor have if he argues a given finding was not justified?" Perry said. "He would go to the courts, just like he does now, and the judges certainly have jurisdiction there, under the constitution."

--Editing by Aaron Pelc.

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