Albany considers multiple approaches to discovery reform

As Democrats seek to address concerns over random violent crimes in New York City and its subways, there is a wide spectrum of proposals to best address burdens on prosecutors caused by changes to the state’s discovery laws. While a proposal from lawmakers seeks to make compliance easier, one from the governor would make it harder for cases to get thrown out.

As part of major criminal justice reforms in 2019, lawmakers made changes to the laws that govern how and when prosecutors must provide defense attorneys with evidence relevant to the case. The current discovery laws require prosecutors to turn over evidence generally within 65 days of arraignment. If discovery requirements aren’t met before the state’s speedy trial law deadline, which is 90 days after arraignment for misdemeanors, cases can be dismissed. The reforms were meant to ensure that defendants have access to all relevant information in a timely manner that they could use to defend themselves, in order to make the trial more fair and even out what critics have decried as an uneven playing field. But district attorneys’ offices have struggled to comply with the law, leading to an increase in case dismissals on technicalities.

A day before the official start of the new legislative session in Albany, state Sen. Zellnor Myrie and Assembly Member Micah Lasher announced a new bill aimed at reducing the bureaucratic hurdles that have hindered prosecutors’ attempts to comply with the state’s discovery laws. The proposed bill would allow prosecutors to directly access police databases to more easily and quickly obtain the evidence and information that they are required under the law to turn over to the defense. The bill would not make any changes to the discovery laws’ timelines or requirements.

Legislators have resisted attempts to significantly roll back the landmark criminal justice reforms that they approved in 2019, including bail reform and discovery reform. While Gov. Kathy Hochul was able to push the state Legislature to tweak the bail laws, district attorneys’ efforts to get the discovery reforms pared back have not yet been successful.  For now, the state has just pledged additional money to help prosecutors comply.

But if Hochul has her way, the discovery laws may finally be weakened this year. Responding to concerns about public safety, the governor included significant changes to the discovery laws in her executive budget proposal. The proposed changes would roll back some requirements to get a discovery certification and largely decouple discovery compliance with the state’s speedy trial law. Overall, it would relax some of the standards that district attorneys offices would need to meet, and make it harder for cases to be dismissed over issues with discovery.

At a press conference in the Capitol on Monday, Myrie and Lasher pitched the advantages of their bill but were hesitant to directly compare it to Hochul’s proposal.

“I think this is very early in the process,” Myrie told reporters. “As Codes (Committee) chair, I think it’s important for me to be listening to all of the parties and all of the stakeholders. As you know, we're gonna be having our public protection hearing in about two weeks where we will have an official testimony on the governor’s proposal for all parties involved. I look forward to having that conversation.”

State Senate Majority Leader Andrea Stewart–Cousins also demurred when asked if she had a preference between Myrie’s bill and the governor’s proposal, referencing the early stage of legislative negotiations for state lawmakers and the executive chamber. 

“Our one-house (budget) won't happen until March, so we've got a whole month in between that conversation, so I couldn't tell you what I do expect or don't expect,” Stewart-Cousins said. “We're obviously, again, interested in a criminal justice system that is just, and we've done a number of things in order to assist district attorneys in terms of discovery. I think we're always open to hear how we can do more to make sure that the system works.”

A spokesperson for Hochul stood by her proposal and would not comment specifically on the bill introduced by Myrie and Lasher – but similarly expressed optimism about working together on changes. “Governor Hochul is proposing common-sense changes to New York’s discovery laws to streamline the discovery process, crack down on recidivism, and prevent legitimate cases from being dismissed on a technicality, while still maintaining the reforms’ original goal of protecting New Yorkers’ rights,” spokesperson Avi Small said in a statement. “The Governor looks forward to working with the Legislature on a final budget that keeps all New Yorkers safe.”

Myrie and Lasher’s proposed legislation already has the backing of Manhattan District Attorney Alvin Bragg and Brooklyn District Attorney Eric Gonzalez, who are both generally considered more progressive prosecutors. It also has the support of some criminal justice reform advocates like the Legal Aid Society, who have strongly opposed other changes to the discovery law.

Meanwhile, Hochul’s proposal also has Bragg’s support and got a thumbs-up from the District Attorneys Association of New York. The group’s president, Staten Island District Attorney Michael McMahon, said in a statement earlier this month that it is “a step towards restoring common sense to a process that will ensure that defense counsel has complete access as timely as possible, that victims’ rights are restored in the balance, and that unintended consequences are eliminated.” The association did not comment on Myrie and Lasher’s legislation when it was first introduced, and it did not immediately return a request for comment on Monday.