With little public progress made, Cleare introduces her own discovery bill

It seems at least one state lawmaker may be starting to get fed up with the budget delays around discovery and the alleged recalcitrance from district attorneys to negotiate over changes to the law. With details of those talks and proposed compromises still shrouded in mystery, state Sen. Cordell Cleare decided to introduce her own language on Wednesday. Just don’t read too much into it. 

Gov. Kathy Hochul, as part of her executive budget proposal, pitched tweaks to the discovery reforms approved in 2019. Although criminal justice advocates have argued that the changes would effectively allow for a wholesale rollback of the law, Hochul and prosecutors have said the amendments are necessary to address a stark increase in case dismissals in sometimes serious cases for what they call minor discovery infractions.

Cleare’s new bill would codify the Court of Appeals decision in the case of People v. Bay. That 2023 decision established factors that a judge can consider when deciding on prosecutors’ compliance with discovery laws, which govern how and when prosecutors must turn over evidence to the defense. It interpreted the current law to mean that a judge would not be required to automatically dismiss a case due to a discovery mistake if prosecutors exhibited due diligence and good faith in their efforts.

Cleare’s legislation presents a number of factors that a judge can consider pursuant to Bay when deciding on whether a prosecutor exercised due diligence and good faith. Those include the extent of their efforts to comply with the discovery law, the amount of evidence already provided, the amount that is missing and the complexity of the case. “These factors provide a roadmap from which judges may fairly assess the prosecution's diligence,” a sponsor’s memo for the bill reads. 

The Black, Puerto Rican, Hispanic and Asian Caucus – which Cleare belongs to – has advocated for adopting the Bay standard as a compromise on the debate around discovery. On Monday, caucus members rallied in support of the prospect. Assembly Member Michaelle Solages, the chair of the caucus, indicated at the time that she did not have specific language in mind yet, but she said she trusted legislative leaders to use Bay as “a guiding light” in negotiations. 

A spokesperson for Cleare referenced the caucus, and said that she consulted with other members about the legislation. “The position enumerated in the bill has been widely discussed for some time and the NYSABPRHAL Caucus (had) a Press Conference on it earlier in the week,” Chris LaBarge, Cleare’s legislative director, said in a statement. “Senator Cleare spoke to members/colleagues, advocates and practicing attorneys before introduction.” Solages did not return a request for comment about whether the caucus supports Cleare’s proposal. 

A spokesperson for state Senate Majority Leader Andrea Stewart-Cousins said that Cleare introduced the bill independently and her legislation doesn’t represent the Senate Democratic conference’s current position on discovery. 

On the other side of the debate, district attorneys have said multiple times during recent trips to the state Capitol that while they support codifying Bay, that alone would not be enough. The prosecutors have pushed hard for Hochul’s proposal, and Assembly Speaker Carl Heastie charged on Tuesday that they haven’t been willing to compromise. The district attorneys want to add prejudice against a defendant as a third factor for a judge to consider on top of due diligence and good faith. It would allow a judge to determine whether the missing evidence has prejudice to the defendant, which they say is necessary to ensure that a case doesn’t get tossed over a minor piece of evidence that doesn’t impact the defense. 

Speaking to reporters on Wednesday, Queens District Attorney Melinda Katz suggested that prosecutors like herself might be willing to accept a codification of Bay, if that were expanded to include prejudice. She said that “Bay requirements plus the prejudice… sounds like the right way to go forward.” But Katz and other district attorneys have also emphasized the need to change the standard for discovery from all material “related” to a case, to all materials “relevant” to it. While the question of prejudice inherently goes hand-in-hand with a change like this, it would theoretically ease some of the burden and stress on prosecutors if the world of evidence they need to turn over gets narrowed.