District attorney watchdog on hold

ALBANY, N.Y. _ Gov. Andrew M. Cuomo and state legislative leaders have agreed to delay the appointment of a commission that was created to investigate misconduct by district attorneys under a law that is set to take effect Jan. 1.

The agreement, filed late Friday, was crafted in response to a legal challenge from the state District Attorneys Association, which filed a lawsuit in October seeking a court order declaring the law unconstitutional.

But neither side retreated from its position: The governor's office said the law's constitutional defects will be repaired through legislative amendments and the commission will be established; the District Attorneys Association declared its members will "not tolerate unconstitutional interference" in their work.

The legislation, signed into law by Cuomo in August, incited a fierce response from the District Attorneys Association, which argued in court papers that the law "unlawfully subjects prosecutors to discipline without any governing standards, in contravention of their due process and equal protection rights."

Cuomo had acknowledged when he signed the bill creating the Commission on Prosecutorial Conduct that it "suffers from several flaws." An analysis by the state attorney general's office found the legislation was poorly crafted and would likely not withstand a court challenge because of "several constitutional defects."

But Cuomo said those defects could be repaired through legislative amendments after the Legislature returns to Albany in January.

The new stipulation "is consistent with what we've said all along _ the current version of this legislation must be amended and should not go into effect before those issues are resolved," said Tyrone Stevens, a spokesman for the governor. "We're proud to usher this piece of criminal justice reform into law, and we're confident that once amended, this groundbreaking reform will strengthen public trust in our justice system."

Albany County District Attorney David Soares, president of the district attorneys association, indicated the group would revive the litigation should the state leaders proffer a new version of the law that is legally deficient.

"The constitutional infirmities inherent in the legislation that would have established a Commission on Prosecutorial Conduct are incurable," Soares said in a statement. "Should the Legislature and the governor seek to create a constitutionally appropriate mechanism to improve the oversight of the conduct of prosecutors and all attorneys in our state, the District Attorneys Association of the State of New York stands ready to help find effective legal solutions."

The state's district attorneys have said there is already a system to review misconduct by attorneys, including prosecutors, and that the governor has the authority to remove a district attorney for cause.

Proponents of the legislation, which passed the Assembly and Senate, have included state Sen. John DeFrancisco, R-Syracuse, who said there was a critical need to create the commission and pointed to instances of people wrongfully convicted of crimes as one justification.

The state Association of Criminal Defense Lawyers also supported the bill, citing what the group said is a "lack of public accountability" by prosecutors who violate ethics rules and criminal procedure laws.

The analysis, released Aug. 13 by the office of Attorney General Barbara Underwood, was done at the request of Cuomo's office and highlighted flaws in the legislation. The 11-page report raised questions about the breadth of the commission's authority, and also the manner in which appointments would be made, including naming judges as members.

The stipulation suspending the litigation requires state leaders to keep the district attorneys apprised of any developments next year in their efforts to retool the legislation. If the law is not amended by June 30 _ after the scheduled end of the legislative session _ the lawsuit challenging the original version of the law will be revived, according to the agreement.