Advocates for domestic violence survivors back Hochul’s proposed discovery changes

Over a dozen women’s and victims’ rights groups are calling on state lawmakers in a new letter to approve changes to New York’s discovery laws proposed by Gov. Kathy Hochul as part of her executive budget. The fight over the tweaks are sure to dominate this year’s budget negotiations, as both legislative chambers removed them from their rebuttals to Hochul and criminal justice advocates are waging a campaign against them. 

In 2019, Democrats in New York approved changes to the laws that govern how and when prosecutors must provide evidence to the defense, a process known as discovery. Prior to the reforms, the laws heavily favored prosecutors, allowing them to hold onto evidence that could aid a defendant’s case until literally the eve of the trial. The reforms, which took effect in 2020, put in place strict timelines tied to the state’s speedy trial law, with significant consequences for mistakes and omissions. 

Criminal justice reform advocates lauded the reforms, but prosecutors quickly began fighting to tweak the law due to the burden it placed on their staff and concerns that cases were being dismissed based on what they considered minor technicalities.

In the letter to state lawmakers, which was shared exclusively with City & State, 15 groups representing women and survivors of domestic and sexual violence called on the state Legislature to approve the governor’s proposed tweaks, which criminal justice reformers have characterized as tantamount to a wholesale repeal of the 2019 reforms. The letter signatories – which include the National Organization for Women NY, Metropolitan Council on Jewish Poverty, My Sister’s Place and Sanctuary for Families – said that the current law has led to too many domestic violence case dismissals on technicalities. “We have seen domestic violence prosecutions dismissed in record numbers for mere technical violations of discovery rules, leaving vulnerable survivors without urgently needed orders of protection and dashed hopes of justice,” the letter reads. 

Hochul’s proposed changes to the discovery law would partially decouple discovery compliance from the state’s speedy trial requirements. The speedy trial requirements require that prosecutors certify that they are ready for trial within a certain amount of time after someone is arraigned on criminal charges; if they can’t meet that deadline, a judge must dismiss the case, to preserve the defendant’s Sixth Amendment right to a speedy trial. The current discovery law lets prosecutors stop the speedy trial clock once they certify that they have turned over all discoverable material to the defense – but that clock is retroactively turned back on if a mistake in the discovery process later comes to light. And speedy trial violations can only be remedied through dismissal.

The governor’s pitch would permit less severe remedies if prosecutors exercise “good faith and due diligence” when certifying discovery compliance but then turn over more evidence after what would have been the speedy trial deadline. While prosecutors may still face consequences including dismissal due to the omission of evidence, the cases would not be automatically dismissed. The governor’s budget proposal would also limit to 35 days a defense attorney’s right to challenge discovery certification, which is meant to disincentivize defense attorneys from waiting until the speedy trial clock has already lapsed. And it would reduce the scope of evidence that prosecutors are required to turn over from materials “related” to the case to those “relevant” to the case, reducing the compliance burden for technical and pro forma documents.

“Right now, domestic violence cases are being frequently dismissed for failure to timely turn over a single document, even when all its contents have previously been provided to defense counsel in a different form,” reads the letter from the 15 groups. “Dismissal of a domestic violence case for a late disclosure of a single piece of paper in a voluminous record… not only does not serve the interests of justice but often leaves victims in greater danger than they were in originally.”

The letter included four anecdotal accounts of domestic violence and sexual misconduct cases were dismissed due to small mistakes made during the discovery process. In one, a judge dismissed a case of forcible touching of a woman by her neighbor because an assistant district attorney had failed to obtain a “pre-arraignment report” that the groups claimed was not relevant to the facts of the case. In another, a judge dismissed an intimate partner violence case because of the prosecutor’s “inadvertent failure” to provide the defense with text messages between police and the victim. “The victim, whose life had been upended by the case for almost three years, was shocked and inconsolable the day she was told about the dismissal,” the letter reads.

Manhattan District Attorney Alvin Bragg, who is pushing for Hochul’s changes, thanked victim’s rights advocates for offering their support and reaching out to lawmakers. “Domestic violence survivors are being denied justice and much-needed orders of protection by flawed discovery laws,” Bragg said in a statement. “The examples raised by these survivor advocates are horrific and indicate a breakdown of the system that should be holding offenders accountable.”

The letter is addressed to state Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie, both of whom removed Hochul’s proposed changes from their chamber’s one-house budget resolutions. The legislative leaders have been resistant to rollbacks to landmark criminal justice reforms passed in 2019 like on discovery and bail, but Hochul has successfully forced through changes to the laws during past budget cycles.

The letter is also addressed to state Sen. Zellnor Myrie and Assembly Member Jeffrey Dinowitz, the chairs of each chamber’s Codes Committee. Myrie recently introduced his own legislation meant to address concerns from district attorneys about the discovery laws. Myrie’s bill, which criminal justice reform advocates support, would provide district attorney’s offices direct access to police databases in New York City to gather evidence needed for discovery, so that they would not have to relying on the department to manually provide them with such evidence. But Myrie has not ruled considering other changes, and prosecutors have said that the legislation alone would not fix the problems they are seeing. 

Criminal justice reform advocates have lobbied against changes to the discovery law in the past, including in 2023 when prosecutors quietly tried to get tweaks into the budget. This year is no different, with advocates and public defenders coming together to form the Alliance to Protect Kalief’s Law. It references the case of a Black boy held for years in pre-trial detention for a low-level theft charge a judge ultimately dismissed. Kalief died by suicide after his release, and his shocking death spurred criminal justice reform action.

The advocates warn that Hochul’s proposal would return New York to the “bad old days” of discovery prior to the 2019 reforms, a characterization that prosecutors have roundly rejected. “Repealing New York’s discovery laws will not ‘reduce delays,’ ‘streamline case processing’ or ‘close loopholes,’ as the Governor claims,” reads the website for the Alliance to Protect Kalief’s Law. “Instead, it will gut Kalief’s Law, leading to more wrongful convictions, coerced plea deals, and clogged courts.”

The coalition argues that if the law is changed so that prosecutors no longer have to fear that cases will be dismissed if all evidence is not turned over before the speedy trial deadline expires, then prosecutors will become much more lax about turning over evidence. And its members say relaxing the requirements around discoverable materials would lead to prosecutors arbitrarily deciding what they consider to be relevant, to the detriment of defendants.

Advocates who oppose the governor’s proposal have also pointed to data suggesting that case dismissals have only increased in New York City, not statewide, since the discovery reforms went into effect in 2020. They blame the case dismissals not on the discovery law itself, but on the New York City Police Department’s apparent inability to transfer evidence to prosecutors in a timely manner. That’s why they support Myrie’s bill to streamline prosecutors’ access to police evidence.

Read the full letter from women’s and victims’ rights groups below: