Criminal justice groups, public defenders start campaign to defend discovery law

Criminal justice advocates are ramping up their opposition to proposed changes to the state’s discovery laws as prosecutors around the state double down on their push to tweak the statute that governs how long they have to hand over evidence to defense attorneys. On Tuesday, the recently created Alliance to Protect Kalief’s Law launched a new website ahead of what could end up being a major budget fight between legislators and the governor as public safety concerns continue to rank as a top voter worry.

As part of her executive proposal, Gov. Kathy Hochul introduced what would be the most significant changes to the state’s discovery laws since the reforms took effect in 2020. New York City district attorneys have tried – unsuccessfully – for several years to enact certain rollbacks to the landmark reforms, but this is the first time that the governor has actually included such rollbacks  in her proposed spending plan.

Under current law, prosecutors effectively have 90 days to hand over all relevant evidence to the defense in misdemeanor trials and six months for felony trials. Failing to provide the evidence before that clock runs out generally violates the state’s speedy trial law, leading the case to be dismissed. Prosecutors have bemoaned the law and blamed it for an increase in dismissals in New York City as they have struggled to comply with the requirement to hand over all evidence to the defense. 

Under the governor’s proposal, discovery requirements would largely be decoupled from the speedy trial law and the requirements for prosecutors to get a discovery certification would be relaxed. This would essentially remove some teeth from the law; prosecutors would still be expected to turn over all relevant discovery to the defense, but it would make it harder to dismiss a case if that doesn’t happen completely in the necessary timeframe. Hochul framed the changes as minor tweaks to close loopholes, partly in response to concerns over crime and recidivism, and prevent cases getting thrown out on technicalities. But criminal justice advocates charge that it would gut the law and allow prosecutors to return to their old, pre-2020 practices with impunity.

Lawmakers made changes to the state’s discovery law in 2019 as part of broader criminal justice reforms that also included bail reform. At the time, changes to both the bail and discovery laws were in large part inspired by the case of Kalief Browder, a Black boy held for several years on Rikers ahead of trial for a low-level theft charge that was ultimately dismissed. Browder died by suicide after his release. “Prior to these laws being enacted, cases would drag on for years without people having access to the evidence against them, leading to wrongful convictions and prolonged pretrial incarceration,” the new website reads, before prompting visitors to read more about Browder’s case.

About a day before the website launch for the Alliance to Protect Kalief’s Law, all five New York City district attorneys penned an op-ed in the Times Union espousing the benefits of Hochul’s proposed changes to the discovery law and defending it against criticism. “We want to be clear: These changes are not a rollback of reform or a return to the old laws that permitted disclosures on the eve of trial,” they wrote. The prosecutors from the five boroughs said further adjustments to the law are needed to address the increased dismissal rates.

In response, criminal justice reform advocates say that the 2019 discovery reforms have been a resounding success and don’t require further changes. “The DAs have been trying to roll back discovery since it was enacted in 2020,” said Amanda Jack, director of policy at the Legal Aid Society. She said that district attorneys succeeded in minor tweaks in 2022 to close what they considered a loophole, but “have tried an inside game every year since.” It’s why groups like Legal Aid started the Alliance to Protect Kalief’s Law this year as the fight bursts into the open. “It’s the exact same proposals that they’ve been making since it was implemented,” Jack said.

Other groups involved in the coalition include the NAACP New York State Conference, Center for Community Alternatives, the New York Civil Liberties Union, other public defender offices from around the state and Kalief Browder’s brother, Akeem.

Jack said that while they don’t support making changes to the law, the coalition does back separate legislation from state Sen. Zellnor Myrie and Assembly Member Micah Lasher that would allow prosecutors direct access to police records so they can gather evidence more quickly and then turn it over to the defense sooner. Jack said that case dismissal rates have only increased in New York City, not other parts of the state, which suggests that the problem is specific to the city and can be solved by cutting through some of the bureaucracy between the New York City Police Department and the district attorneys’ offices. “It’s really a bill that gets to the efficiency of the matter, and makes police do what they’re already required to do,” Jack said.

Democratic lawmakers have historically been resistant to any rollbacks to criminal justice reforms, opposing Hochul’s changes to the 2019 bail reforms and quashing past talks around rollbacks to discovery. But leaders and members alike are especially conscious of public safety concerns that have historically helped to get Republicans elected, which could make them more open to the governor’s proposed changes. As the Alliance to Protect Kalief’s Law gets to work with rallies and lawmaker lobbying, though, Jack said she remains “hopeful” that lawmakers will remain steadfast in opposing the changes.