Lawmakers propose alternative to Hochul's discovery changes as budget negotiations drag on

Members of the Black, Puerto Rican, Hispanic and Asian Caucus rallied against Gov. Kathy Hochul’s proposed changes to the state’s discovery laws on Monday, while two New York City district attorneys made a case in support of the measure. The prosecutors expressed an openness to compromise, and lawmakers said they’d support certain language to tweak the law to codify a court decision clarifying the statute. But a final deal on the issue, which has in part held up the state budget for over a week, still remains elusive. 

As part of her executive budget proposal in January, Hochul included changes to the state laws that govern how and when prosecutors must turn over evidence to the defense. Her proposed language would modify the current law in a number of ways, namely by shifting from requiring prosecutors to provide the defense with all “related” to requiring all “relevant” evidence be turned over, and permitting consequences less severe than dismissal should minor or inadvertent discovery errors come to light after the speedy trial clock has run out. 

Bronx District Attorney Darcel Clark and Manhattan District Attorney Alvin Bragg spoke to reporters in Albany about the need for changes, reiterating their support for the intent of the initial 2019 reforms to make the discovery process more fair to defendants, while arguing that the reforms have had the unintended consequence of cases getting dismissed on technicalities or minor infractions. “We've been working really, really hard to come to a compromise in order to make some smart changes or tweaks to the law, so that we can avoid dismissals on technicalities,” Clark said. She added that the proposed changes are meant to “level the playing field for victims.”

A number of victims rights groups have highlighted instances in which domestic or sexual violence cases were dismissed due to a minor mistakes related to discovery. Although current law provides a variety of remedies for such mistakes other than dismissal, violating the speedy trial law results in automatic dismissal. That means that judges have often felt constrained to dismiss cases if issues with discovery, even small ones, occur after the speedy trial clock has already run out or after a prosecutor has filed a certificate of compliance to stop the clock, according to the district attorneys. 

Clark said that “everything is still on the table” when it comes to negotiating a compromise in order to get the budget passed, adding that legislative leaders have made counterproposals to the governor. Clark did not provide any specific details on what those counterproposals look like, but suggested that prosecutors have “compromised on things already.”

Shortly after Bragg and Clark spoke to reporters, members of the Black, Puerto Rican, Hispanic and Asian Caucus offered a counter-narrative, expressing strong opposition to the governor’s proposal and suggesting that they’d be willing to stay in Albany as long as it takes to prevent it from being approved. “We can fix the dismissal problems without dismantling justice,” said Assembly Member Michaelle Solages, chair of the caucus. “And we can protect all victims by making sure there's truth in every courthouse.” She and other lawmakers at the rally argued that the governor’s proposal would constitute an effective wholesale reversal of the 2019 reforms. 

Instead, Solages and others in the caucus said that they would support language that codifies a 2023 Court of Appeals decision in the case of People v. Bay. That ruling clarified in case law that a judge can impose less severe remedies for discovery mistakes even after a certificate of compliance has been filed and stopped the speedy trial clock, as long as prosecutors can prove that they acted in good faith and with due diligence. “Codifying the decision is what we need to do, not destroy the law,” Solages said, echoing an argument that New York City Public Advocate Jumaane Williams made last week. 

But lawmakers could not offer any specific details on what language would look like to codify that court decision or how it would differ from what the governor has already proposed. “Our leadership has our desires, and we're working with them – on both sides, in both chambers – to come up with language,” Solages said. “But at the end of the day, we have a court case that is a guiding light for this process.”

Legislators also signaled that, like the governor, they’re willing to stay as long as they need to ensure that discovery is done right. “Summers are beautiful in Albany,” said Assembly Member Gabriella Romero, who represents the state capital – repeating the same line Hochul used last week when asked about how late the budget may go.