NY Discovery Reform Feud Simmers Between DAs, Defenders

By Rachel Rippetoe | May 17, 2024, 8:03 PM EDT ·

person examining legal documents at desk

Prosecutors and other law enforcement advocates are pushing New York state lawmakers to make changes to a 4-year-old law that imposed what critics say are burdensome new requirements to more quickly hand over evidence to criminal defendants during discovery. (iStock.com/Tero Vesalainen)

Months after taking a plea deal to avoid being sent to Rikers Island on drug charges, Staten Island resident Jason Serrano ended up being exonerated in 2020 when body camera footage emerged showing a police officer planting marijuana in the car Serrano was riding in.

That it took so long for Serrano and his attorneys to learn about the video's existence is a reflection of what New York's laws regarding the release of exculpatory evidence looked like before a landmark reform bill passed in 2019, said Kalle Condliffe, staff attorney with Criminal Defense Practice Training Unit at the Legal Aid Society.

New York used to be one of a handful of states where prosecutors faced no penalty for handing over evidence on the eve of trial, or for neglecting to provide discovery materials before a defendant signed a plea deal.

"You can imagine, if a case is pending for a month to three years without a person accused of a crime seeing the evidence against them, it's hugely impactful on their lives," Condliffe said. "And at a certain point, if a prosecutor makes an attractive enough offer that maybe won't require them to go to jail or won't require them to have a permanent criminal record, they might decide, 'I'm not guilty of this, but I'm going to take the plea anyway. Because I can't afford to wait. And I don't know what they have.'"

In 2019, advocates rallied to pass sweeping reforms requiring prosecutors to turn over all evidence they have against a defendant to his or her attorney.

Since the law went into effect, however, opponents have argued that it has placed a massive burden on local district attorneys to quickly collect and turn over an enormous amount of data, and that failures to comply have resulted in thousands of speedy trial dismissals involving defendants who pose a threat to public safety.

In a statement to Law360, Michael McMahon, the district attorney for Richmond County and president of the District Attorneys Association of the State of New York, said the reforms had "put a strain on district attorneys' offices in their efforts to obtain voluminous and oftentimes duplicative materials from the agencies who are in actual possession of that information."

"That difficulty has resulted in an increase in the number of cases dismissed by the courts for minor failures to obtain or produce sometimes obscure pieces of information, even though the prosecutor was diligent and acted in good faith," he added.

While even some of the state's most progressive district attorneys advocated for rolling back some of the reforms during negotiations over last year's budget, the law has remained unchanged.

But according to Hannah Meyers, a fellow at the Manhattan Institute who has been a prominent voice in favor of paring down the reform, the pressure campaign will continue even if, so far, there have been no public discussions of rollbacks ahead of this year's state budget.

"There is a more organized, concerted coalition behind the scenes: individuals and groups you might not imagine because of the politics have gone and made a plea to change the law," she told Law360. "We'll see if that happens this year, or next year, but it will happen eventually because it's untenable."

McMahon said that, as a general matter, his organization "supported full and open discovery in a way that does not compromise the rights of victims or public safety," but added that changes were needed.

"The laws must be amended so victims of crime do not see their cases tossed on minor technicalities," he said. "I urge our governor and lawmakers … to look at proposals that will address some of the issues district attorneys throughout the state have identified through practice that would make minor tweaks to the law while keeping and respecting the spirit of openness and fairness underlying the 2019 reforms.

Proponents of the change, meanwhile, are keeping vigilant.

"We have an enormous amount of power in the community, and we will organize and be in Albany to fight because this is too important," said Gina Mitchell, attorney and policy advocate for the Queens Defenders. "We can't have our fundamental rights being sacrificed for attrition and HR problems. It's just not acceptable."

Life Before Discovery Reform

Condliffe, who also spent several years as a public defender in the Bronx, said that before the discovery reforms, defense attorneys were forced to do a lot of their work blindfolded, and that prosecutors' unwillingness to comply with discovery requests dramatically extended the process for their clients.

Under New York's speedy trial laws, prosecutors are required to state that they're ready for trial within 90 days of arraignment for misdemeanor cases, and within six months for felony cases. But without any real requirement for prosecutors to hand over discovery to opposing counsel, the statement could be utterly meaningless, Condliffe said.

"There was absolutely nothing tying their readiness for trial [to] not just disclosing [evidence] to the defense, but to even obtaining it for themselves," she said.

Because all a prosecutor needed to do to stop the speedy trial clock was give an empty statement of readiness, Condliffe said, cases could drag on for years after the initial 90-day or six-month deadline as prosecutors could stall handing over discovery for as long as they wished.

Before the reforms in 2020, Condliffe said, she would frequently see prosecutors, as early as the day of a defendant's arraignment, say they were ready for trial. At such an early stage of the case, however, no defense attorney would agree to start without any opportunity to review evidence.

"That would be completely malpractice to do that," she said.

So they would request more time from the judge and ask the prosecutors to turn over evidence, the prosecutor would not comply, and the case would drag on into oblivion, Condliffe said.

Fewer than 1% of criminal cases in New York go to trial in a given year, according to data from the New York State judiciary. As most cases end instead with a plea deal of some kind, defense attorneys, before the reforms, were forced to advise their clients through the plea bargaining process without having all the information about their case.

"Previously, you really couldn't talk about the nuts and bolts of what the case against your client was," Mitchell said. "And so even when you're doing your job well, it would be coercive because you're explaining an offense to someone without a really good grasp of what kind of trial is going to play out."

Often, Condliffe said, plea deals would be tied directly to clients waiving speedy trial time and giving up their request to see the evidence.

"In a lot of cases, it was sort of explicit," she said. "It would be like, 'If you waive speedy trial time, and you don't make me get you any more material, then I'll talk to my supervisor about making the offer you want.'"

This had serious impacts on the criminal justice system as a whole, Mitchell said, leading to some taking plea deals for crimes they didn't commit.

"Each step of the criminal legal system there is potential to be unbelievably coercive," Mitchell said. "So the more discovery we have, the more we are able to advise the client one way or another … but it's incredibly difficult to advocate for a client effectively without discovery."

But Meyers said many stories of prosecutors never disclosing evidence are overblown, and that, regardless of the amount of discovery to which a defense attorney has access, plea bargaining benefits defendants.

"In many cases, the defendant knows what they did, they know if they're guilty, they know right away the weight of the evidence against them," she said. "The advantages of guilty plea bargaining is that it offers speed and certainty, both to the prosecutor who represents the people of New York, and it avoids a very long, very costly trial to the criminal defendant."

After Discovery Reform

While New York's discovery reform bill lifted a veil for defense attorneys, Condliffe said, it came at an awkward time.

Three months after the changes went into effect at the beginning of 2020, the COVID-19 pandemic hit, and Gov. Andrew Cuomo issued an executive order suspending the speedy trial clock. That pause essentially shut down the most important aspect of discovery reform.

"Basically, for almost the entire first year of this law being on the books, there was no enforcement mechanism for its success," Condliffe said.

But by the end of 2021, when the courts were returning to their normal operations, opponents of the reforms began to make themselves known. That December, New York State's Division of Criminal Justice Services published a survey of 54 district attorneys offices out of the 62 across the state, most of which reported that the reforms had left their staffs "overworked and overburdened."

It didn't help that the legislation came with almost no additional money for implementation to help prosecutors who had not previously had to parse so much information at the onset of a case.

"It immediately became clear that there needs to be a lot of money because it is so much leg work," Meyers said. "It's watching hours and hours of body camera footage and redacting it. It's going through all of these statements that are irrelevant and redacting them and sharing them. It's requesting lab data that's not going to be relevant. But now you have to do it."

Because of the extra work required on a ticking clock, the number of cases being dismissed because prosecutors were not ready on time jumped significantly. According to state data, speedy trial dismissals across New York went from 11,004 in 2019 to 36,516 in 2023, more than tripling.

"That's really significant when you think about 20,000-plus cases that would have been prosecuted, and that weren't because the prosecutors literally ran out of time," Meyers said. "I can't express to you the enormity of what that means for the criminal justice system. It has a huge impact on domestic violence cases and on other types of offenses that really matter, even if they're not, you know, a murder. "

Overall dismissals increased from 40% of all case dispositions in 2019 to 50% in 2023, and in conjunction, guilty pleas went down from 50% of all dispositions in 2019 to 39% in 2023.

A majority of this disparity played out in local courts, which tend to prosecute misdemeanors and lower-level crimes. The disparity was far less stark when looking at superior courts, where guilty pleas dropped from 80% in 2019 to 74% in 2023, and dismissals increased just 2%.

Condliffe said that while there has certainly been an increase in dismissals, that was not necessarily a bad thing. Many cases being dismissed, she said, were flimsy cases to begin with and not backed by strong evidence, which she says she presumes is why prosecutors would choose not to prioritize them.

"We're presuming people guilty by saying the right outcome is that they should be taking the plea, acting as though everybody who comes through the system and is arrested is deserving of a punishment," she said. "I'm not saying every single person is innocent, but it's also the prosecutors' burden to prove that."

Meyers, however, said she found that a harmful mentality for crime victims.

"That's not justice, [suggesting] if they ran out of time it means it wasn't a legitimate case," she said. "If there's a victim, there's evidence, then there's a case to be made. Time constraint doesn't mean it shouldn't have been prosecuted."

In addition to the stain a speedy trial dismissal can have on a district attorney's reputation, Meyers said, the reform is demoralizing for line prosecutors as the job has become much more burdensome.

"It's a Sisyphean job because you're constantly working on these cases that you still have to be triaging all the time," she said. "We are losing so many qualified, seasoned prosecutors and it is so hard for these D.A.'s offices to hire anyone."

McMahon, the Richmond County district attorney and leader of the state district attorneys association, agreed.

"The burdens related to retrieving, preparing, and exchanging discovery have contributed to a crisis when it comes to recruitment and retention," he said.

On the other hand, Condliffe argued that the extreme growing pains district attorneys' offices have experienced implementing the reforms only showed how little time they were spending gathering evidence for cases before the discovery requirements became tied to real consequences.

"Although there should have been the resources in place for prosecutors to quickly obtain all the evidence and then disclose it to the defense, they were not built into the prosecutors' workflow at that point because they had the ability to slowly get whatever they wanted, gather it at their own pace," she said.

And although Condliffe and Mitchell acknowledged that the law requires more work for everyone involved, including defense attorneys who also have to sort through all the evidence they are now being provided with, they both said these administrative difficulties do not outweigh the benefits the reform has for their clients.

"We've absolutely had cases [since the reform] where we've gotten body-worn camera footage and there was no lawful basis for the stop and seizure or search of our client or the police are saying that the client says something, and they absolutely do not, so it's allowed us to investigate" Mitchell said. "We're talking about wrongful convictions and people spending more time in prison or having devastating collateral consequences. I just think it is deeply problematic to somehow put that in the same conversation around attrition and staffing issues in the D.A.'s office."

The Fight

The discontent among prosecutors in the state came to a head during the 2023 legislative session, when New York City's district attorneys, who are among the most progressive in the state, quietly pressed leaders in Albany to include rollbacks to discovery reform in the state's budget.

Multiple news outlets confirmed in April 2023 that Manhattan District Attorney Alvin Bragg, Bronx District Attorney Darcel Clark and Brooklyn District Attorney Eric Gonzalez urged lawmakers in closed-door sessions to make changes including placing part of the discovery burden on defense attorneys, asking that they be required to identify outstanding evidence they want and to request it through a motion, which would halt the speedy trial clock and allow prosecutors more time to collect the evidence.

Once they caught wind of the proposals, over 50 public defenders' offices and legal aid groups across the state called on lawmakers to reject the proposal. The negotiations ultimately fell apart, and no rollbacks were included in the budget.

"This is something that the district attorneys had brought to our attention, asking for changes," Gov. Kathy Hochul told the Queens Daily Eagle at the time. "We thought we had a plan that met the needs, and the district attorneys decided that that was not the path."

But what did come out of the budget negotiations was $160 million in new funding to support the implementation of discovery reform, including a $50 million allocation to prosecutors and public defenders in New York City that was earmarked for technology improvements.

McMahon said the additional money went a long way in helping to address some concerns from prosecutors about the increased workload the reforms had caused.

"Additional funding by the state has helped greatly in investing in modern technology and up-to-date hardware and software as well as training the existing workforce of district attorney's offices and investing in the workforce of the future," he said.

Condliffe and Mitchell, however, said the defense bar still has not received notification of additional funding from the 2023 budget for discovery reform implementation.

"We don't really know right now how implementation is going to be bettered by an increase in funding. We haven't seen it yet," Condliffe said. "But you have to give it the time to have that impact. You can't keep chipping away at this standard without fully funding the implementation and giving it a chance to work."

But Meyers says more funding won't fix all that is wrong with New York's discovery reform.

"Discovery reform has had so many of these impacts on the way the criminal justice system in New York functions, and they've all been negative," she said. "You can try to collect the evidence more quickly, but you're not going to ever get over that hump of having such an enormous, meaningless burden."

Meyers said that more political players in the state agree with her than are letting on, but that the political environment can be chilling for progressives or Democrats to speak out against any kind of criminal justice reform. While so far there has not been the kind of all-out legislative fight this year as happened in 2023, she said it was coming eventually.

"What advocates have found is that even when the most progressive agencies and officials go behind the scenes to Albany and say, 'We really need to fix this law coming from a progressive standpoint,' the legislature will not budge," she said. "Which makes sense politically because it's a huge win for them, no matter how much you say there are tens of thousands more domestic violence cases that go without justice."

But district attorneys' offices around the state are in a pressure cooker, Meyers warned, and eventually it will burst.

"If you think about the political pressure on most progressive D.A.s right now because of discovery reform, they look bad," she said. "Even the prosecutors who have their official office policies that they don't prosecute these low-level offenses, there are hundreds and thousands of cases that they're dismissing that they don't want to, and it's not in their control. So they look worse because of discovery reform."

Mitchell said there at least appears to be some agreement between most prosecutors and defense attorneys that more funding will solve many of the problems that arose in the early going of discovery reform's implementation. Both defenders' and prosecutors' offices are currently working on hiring full-time discovery attorneys and beginning to implement new technology that can help easily share data as it becomes available, she said.

But if there's even a hint of the possibility of rollbacks of the reforms, Mitchell said advocates will be on the ground ready to fight.

"We have to remain vigilant," she said. "We have to continue to push the clear message that discovery reform is based on very foundational concepts of fairness and equity and the integrity of the criminal legal system."

--Editing by Peter Rozovsky.

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