Supporters of a New York panel for investigating prosecutor misconduct say threats by state district attorneys to derail the effort forced lawmakers to put the underlying legislation under an unusual level of scrutiny — and design an even better tool for policing prosecutors in the process.

New York Gov. Andrew Cuomo signed the initial bill last year creating the oversight commission, but a new version adopted last month includes a series of amendments advocates said will give the commission a more robust oversight process, and better odds of surviving the group's ongoing legal challenge.

The District Attorneys Association of the State of New York fought hard in recent years to block the creation of a commission empowered to investigate prosecutors, calling it redundant, an encroachment on prosecutor independence, and constitutionally flawed.

Amid a public relations campaign and promises to attack the law in court, the group's president, Albany County District Attorney David Soares, also took the unusual step of calling on prosecutors statewide to boycott the commission and refuse any offers of appointments.

With barely contained glee, defense attorney Marvin Schechter said that threat in particular prompted legislators in Albany to include in the final version of the bill a provision that allows appointed commissioners who refuse to participate in its work to be replaced.

Another change made in response to association blowback allows for the appointment of retired prosecutors —a group Schechter called well-suited to the job but one less likely to stymie the commission's work than current prosecutors.

"We could not have gotten to where we are today without the help of the DAs association," said Schechter, a longtime commission proponent. "They were a major, major factor in getting this winning bill built."

Once up and running, the commission will be the first oversight body in the U.S. designed specifically to investigate misconduct by prosecutors. While district attorneys in New York are subject to the same court oversight and disciplinary process as other New York lawyers, in practice, such actions are exceedingly rare.

The near-total dearth of sanctions for New York prosecutors is a sign, criminal justice reforms advocates have long argued, that the normal process for policing lawyers is ineffective for a group with tremendous influence over who gets charged with crimes and what their punishments should be.

Advocates and lawmakers have also pointed to the state's high rate of criminal exonerations as evidence of a system that ignores even egregious prosecutor misconduct leading to wrongful convictions.

After years of debate among lawmakers — and persistent resistance by state prosecutors — a bill creating an 11-member oversight body of judges, prosecutors, and defense attorneys last year gained a rare degree of bipartisan support in Albany.

Upon signing the first version last summer, Cuomo called the commission a major step towards accountability and a means to uncover misconduct leading to "malicious prosecutions" that most frequently impacted "people of color and marginalized communities."

But facing concerns raised by the state attorney general about the separation of powers, including in the spread of appointment authority, Cuomo also said he'd reached a deal with legislators to make a series of fixes the bill. Those changes were also meant to counter Soares' assertion that nothing could correct what he described as a fatally flawed law, and to prepare for the group's promised lawsuit, which was filed in October.

As part of that defensive effort, the governor's office and legislative leaders also hired more than a half dozen outside lawyers to review the already-signed bill and come up with a plan.

Assemblyman Nick Perry, D-Brooklyn, who co-sponsored the bill, said he and other legislators had been confident the original bill was legally sound. But they also agreed to make substantive changes out of an abundance of caution in light of the District Attorneys Association's lawsuit and the attorney general's constitutional concerns.

Among the bigger changes was a shift in appointment power towards the executive branch, a move designed to clarify that branch's authority over the prosecutor function of the government. The final version of the bill also includes a "severability clause" so that parts of the law could be struck down without imperiling the entire commission statute.

Perry voiced confidence that the second version of the law, signed by Cuomo on March 27 and effective April 1, will survive the lawsuit and be sufficiently funded in the next state budget.

"I'm not an attorney, but I think I'm a good lawmaker, we spent a lot of time consulting with a lot of learned legal authorities, and it seems to me the bill is sound," he said.

"Whether the DAs like it or not, New York is going to have a commission working in the interest of justice," he added.

When contacted for comment, a Cuomo representative referred a reporter to a statement released on the bill signing, in which the governor referred to his ongoing concerns with the commission being "vulnerable to legal attack."

So far, Soares and his association have shown no signs of backing down.

Along with an amended complaint filed in Albany on April 1, the group asked the court for a temporary injunction, attacking what it called a sloppy legislative process and ongoing separation-of-powers problems with the bill, among other problems it says weren't corrected. The association also blasted what it called the panel's unchecked power to investigate prosecutors and punish prosecutors for virtually kind of action.

The commission's "unbridled oversight authority, combined with its power to destroy a prosecutor's career and ... compromise criminal cases, will impair prosecutorial independence and chill lawful conduct that meets (or may be feared as meeting) with the [commission's] disapproval," the association said.

Jim Walden of Walden Macht & Haran LLP, the lead attorney for the district attorneys, told Law360 that the governor had "effectively conceded" that even the amended bill was legally unsound. He also predicted that the law would be hit with a permanent injunction before the commission got off the ground.

"This leads to believe that this is not about the bill at all, but about vilifying hard-working prosecutors, scoring political points, and leading people to believe that reform is afoot," he said.

It's unclear when the first appointments will be made, but supporters said names are already being circulated in anticipation that the law will survive the court challenge. A hearing is scheduled in the Albany case on April 24.

Bill Bastuk, who leads criminal justice reform group It Could Happen to You, said Soares and other opponents had effectively raised a host of useful questions about how the commission would function, even as they tried to squash the idea altogether.

Bastuk, who lobbied in support of the commission, said an addition to the second bill of an appellate body comprised of the presiding justices of the four appellate departments was borne from pushback about prosecutor's abilities to appeal commission sanctions or calls for disbarment.

"By having judges from other departments [than a prosecutor's home department] on that panel, it avoids the possibility that one individual judge can be biased in favor of a prosecutor he or she knows" and sway a decision, he said. "So I do believe this really is a better bill in many ways."

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