Gov praises changes to discovery reforms
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Governor Kathy Hochul was joined by Queens District Attorney Melinda Katz, Staten Island District Attorney Michael McMahon, Bronx District Attorney Darcel Clark, Manhattan District Attorney Alvin Bragg and Brooklyn District Attorney Eric Gonzalez to celebrate changes made to the state’s discovery laws on Wednesday. Photo via Governor Hochul’s office
By Jacob Kaye
Governor Kathy Hochul and the city’s five district attorneys celebrated changes to the state’s evidence-sharing laws that were worked into the state budget Wednesday.
While the governor’s celebration came before the release of the actual language of the changes to the state’s discovery laws by the legislature, Hochul was quick to hail the legislation as a win for her, prosecutors and crime victims.
Hochul initially proposed a number of rollbacks to the state’s discovery reforms, which first went into effect a little less than half a decade ago, during her State of the State address in January. The governor and prosecutors argued that the evidence-sharing requirements spelled out in the reforms were too difficult to meet and had led to a spike in dismissed cases.
The policy issue quickly became one of the most contentious points of negotiation between Hochul and the legislature, which eventually agreed to pass several of the changes Hochul initially proposed.
Changes to the state’s discovery law were one of several budget items that delayed the passage of the fiscal document by over a month.
“I've said all along, I would hold up over a $250 billion budget on this issue,” the governor said on Wednesday. “Here's why – behind all the legal jargon that some may not quite comprehend, there's real people's lives at stake here. That's why I wouldn't leave. That's why I couldn't walk away from this fight.”
Though a number of Hochul’s rollbacks did not make it into the final budget, several elements of her proposed changes to discovery did.
At the heart of the legislation is language that more clearly allows for judges to use their discretion when deciding whether or not to toss a case over a prosecutor’s failure to turn over evidence to the defence.
Under the new legislation, prosecutors only need show they worked with due diligence to turn over evidence and that a judge can determine that due diligence by looking at the “efforts made by the prosecutor to comply with the requirements [of the law]; the volume of discovery provided and the volume of discovery outstanding; the complexity of the case; whether the prosecutor knew that the belatedly disclosed or allegedly missing material existed; the explanation for any alleged discovery lapse; the prosecutor's response when apprised of any alleged missing discovery; whether the belated discovery was substantively duplicative, insignificant or easily remedied; whether the omission was corrected; whether the prosecution self-reported the error and took prompt remedial action without court intervention; and whether the prosecution’s delayed disclosure of discovery was prejudicial to the defense or otherwise impeded the defense’s ability to effectively investigate the case or prepare for trial.”
The legislation also requires a judge to issue their decision in writing should they find a prosecutor did not perform their due diligence in turning over the evidence.
The budget bill also puts a clock on defense attorneys’ ability to challenge a prosecutor’s certificate of compliance, or a court document stating they’ve finished the evidence sharing process. Under the legislation, defense attorneys have 35 days to challenge a COC.
“For the first time, we'll be easing this enormous burden on our prosecutors by narrowing what they have to turn over,” Hochul said on Wednesday. “It's that simple.”
“And we're ending the gotcha game where defense lawyers cannot wait to the last possible second and raise a perceived discovery omission,” the governor added. “They say, ‘Gotcha, now [the case is] going to be thrown out.’”
The state’s 2019 discovery reforms were passed after defense attorneys and criminal justice advocates said prosecutors were routinely withholding evidence until the eve of trial and putting defense attorneys at a disadvantage.
The reforms put a clock on how long prosecutors had to turn over evidence or risk having a case dismissed. It also more clearly defined what evidence prosecutors needed to send over to the defense.
In the years after the reforms’ passage, New York City saw a major increase in the dismissals of a handful of case types. However, the dismissal rate for indicted felonies, which account for the most serious crimes, remained virtually unchanged.
“The fact that something is getting indicted tells me that prosecutors see that as a really serious case that they want to prosecute with robustness,” Chief Administrative Judge Joseph Zayas said during a February budget hearing. “They are complying with their discovery because that is their really important case.”
Nonetheless, the state’s prosecutors became the biggest advocates for discovery rollbacks.
On Wednesday, all five of the city’s DAs said that they met constantly with legislative leaders over the past several months, advocating for changes to the discovery law that the lawmakers passed half a decade prior.
“It is the sign of effective leadership when our leaders change and be flexible on the laws of the state,” Queens District Attorney Melinda Katz said on Wednesday.
