Legislative leaders reach deal with DAs on discovery

The state budget, now over two weeks late, may be slightly closer to completion now that Assembly Speaker Carl Heastie has announced a “framework” of a deal on the issue of discovery. “I just briefed my conference, and we’re in a good place,” Heastie told reporters on Tuesday, additionally thanking New York City’s five district attorneys, whom he had been discussing the matter with. The non-fiscal issue has been a major priority for Gov. Kathy Hochul, who has said she would not sign a budget without changes to the law that governs evidence-sharing and has been holding up the budget until coming to an agreement. 

Details of the conceptual deal, which still needs a thumbs-up from the governor, remain murky. But Heastie said the compromise would allow judges to consider prejudice when it comes to missing evidence – a matter that had emerged as a key sticking point between prosecutors and public defenders.

District attorneys around the state, who have played an outsized role in the negotiations, have made it clear that they won’t budge unless judges can consider whether a missing piece of evidence would unfairly prejudice the defense before deciding whether to dismiss a case. Criminal justice reform advocates, meanwhile, have viewed that question of prejudice as a hard line in the sand.

Hochul was in Manhattan on Monday, once again making the case for her proposed changes to the discovery law, which would roll back parts of the 2019 reforms that were meant to even the playing field between prosecutors and defendants. She has been insistent that the changes are necessary to prevent the dismissal of cases on mere “technicalities,” which she says is unfair to survivors of domestic violence. “Three months ago, I stood up before our state, and I made a vow, and that was to fight for victims of domestic and gender-based violence,” Hochul said, referencing the introduction of her executive budget proposal in January. “A vow to fix loopholes that denies them justice and very often puts their lives in danger.”

Hochul has had district attorneys advocating for the changes as surrogates several times in the past week, and she herself has now held three different press conferences to push for the changes. At Monday’s event in Manhattan, she hammered home statistics that show that 94% of domestic violence cases were dismissed in 2023 in New York City. According to her office, that’s up from 70% of cases in 2019 before the reforms took effect.

The governor’s proposed changes to discovery, meant to narrow the pool of evidence prosecutors must turn over to the defense and to make it harder for judges to dismiss cases over discovery mistakes, have rankled public defenders and criminal justice reform advocates. The defenders have argued that the governor’s “tweaks,” which are strongly supported by the state’s district attorneys, would effectively amount to a wholesale repeal of the 2019 reforms and once again allow prosecutors to withhold crucial evidence until the eve of a trial.

The debate over the discovery law is highly technical and hinges heavily on the specific language used in the law. The governor released proposed language in her executive budget proposal back in January, and state Sen. Cordell Cleare released her own alternative proposal earlier this month.  

One of the key issues in dispute is the matter of prejudice, or the degree to which a piece of evidence directly impacts the defendant’s case. 

The Court of Appeals, the state’s highest court, ruled in the case People v. Bay that a judge must consider a prosecutor’s good faith and due diligence when making a decision about missing evidence. If a court finds that evidence was not turned over before the speedy trial deadline elapsed, but that the prosecutor exercised good faith and due diligence in seeking to turn over evidence, then they cannot dismiss the case. But in cases where the court finds that prosecutors did not exercise due diligence and a missing piece of evidence was only found after the speedy trial clock has run out, then they must dismiss the case.

“There is no rule of ‘strict liability’; that is, the statute does not require or anticipate a ‘perfect prosecutor,’” Judge Caitlin Halligan wrote in the Bay decision. “On the other hand, the plain terms of the statute make clear that while good faith is required, it is not sufficient standing alone and cannot cure a lack of diligence.” 

The decision goes on to cite the factors that judges should consider when assessing whether or not prosecutors demonstrated due diligence. “Although the relevant factors for assessing due diligence may vary from case to case, courts should generally consider, among other things, the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People's response when apprised of any missing discovery,” Halligan wrote.

Prosecutors argue that it is not enough for judges to consider only good faith and due diligence. They also want judges to consider prejudice. They argue that even if a prosecutor mistakenly does not act with due diligence in looking for evidence and turning it over to the defense, a case still shouldn’t be dismissed if the missing evidence is trivial. “The point really is that nothing should be dismissed if it was inadvertent, if there's no prejudice to the defendant and whether or not it's looked at as a whole to be fair,” Queens District Attorney Melinda Katz said in Albany last week. “And that's really the language that the governor is proposing, which is that the judges look at the entire discovery as a whole, not just one document.”

Several legislators, as well as criminal justice reform advocates, have supported codification of the Bay decision. But district attorneys say that would not be sufficient. “It doesn’t factor in prejudice,” Westchester District Attorney Susan Cacace said of the Bay decision. “If something that's not turned over to by happenstance, despite the people's due diligence, is not relevant to the case, there shouldn't be a dismissal, unless prejudice,” Cacace said. 

However, under current law and the Bay decision, Cacace’s hypothetical would not lead to dismissal if prosecutors show they exercised due diligence. It’s a big reason why criminal justice reform advocates support the Bay standard. Eli Northrup, a public defender and policy advocate at the Bronx Defenders, called it “pretty damning” if prosecutors are saying that due diligence is too high a standard to hold them to. 

According to public defenders and criminal justice reform advocates, permitting the consideration of prejudice would remove the incentive for district attorneys to hand over evidence in a timely manner. “During the ‘blindfold era,’ the court was unable to enforce prompt discovery disclosure because it could not impose a consequence unless the defense demonstrated that late disclosure caused prejudice that couldn’t be cured with more time to review the material,” a fact sheet from the group Protect Kalief’s Law reads. In other words, the advocates argue that if prejudice is explicitly considered again without any other guardrails, the risk of dismissal would all but disappear in favor of delays to the trial, often to the detriment of the accused.

It sounded like there might be room for compromise, even on the issue of prejudice. But as of Tuesday afternoon, the specifics on what legislators may be agreeing to remain murky – particularly whether or not prejudicial evidence would lead to automatic dismissal after the speedy trial clock runs out or whether a judge could impose other cures like delays instead of dismissal. And the difference between the two is a major one for defense attorneys and prosecutors alike.