The state’s new discovery laws, on the books since Jan. 1 but which also apply to some cases that began earlier, are placing onerous demands on District Attorneys and their offices, city DAs have said.
And, they added, the new laws could potentially put victims in additional danger as well as reducing cooperation from witnesses.
Among the changes, Prosecutors must now share all discoverable materials—including contact information for witnesses—with defense attorneys as a matter of course, with judges required to favor disclosure.
Prosecutors also now have just 15 days to turn over all discoverable materials, but they are required to do so as soon as is feasible. Although prosecutors could be given an additional 30 days if there are large amounts of materials or they are not reasonably obtainable, a judge must consent to any extension.
Along with other changes in criminal-justice procedures legislated last spring, notably changes in bail rules, the modifications have fundamentally changed the prosecutorial landscape, said Staten Island’s DA, Michael McMahon.
“All of these provisions will affect our ability to fairly and equally apply the law and prosecute cases, and at the same time protect victims of crime,” he said in a Jan. 15 phone interview.
Bronx DA's Witness Worry
In September testimony before the Senate’s Rules Committee, Bronx DA Darcel Clark said the reforms could hinder prosecutions by discouraging witnesses from cooperating since prosecutors would no longer be able redact their identifying information as a matter of course. They would need to secure a protective order to do so—no sure thing.
“We can no longer tell witnesses with certainty that their identities will be protected until they testify at trial,” Ms. Clark said. “This is absolutely going to have a chilling effect on witness cooperation.”
Mr. McMahon agreed, saying the discovery directives, particularly when coupled to the new bail rules, had the potential for “deleterious effects” in that they could further endanger victims and even witnesses. Those outcomes, he said, were “unconscionable.”
Both victims and witnesses reacted with disbelief when told that their personal information was being provided to defense attorneys, he said. “We’re met with a high level of incredulity,” Mr. McMahon said.
Manhattan’s DA, Cyrus Vance Jr., also said the new mandates would have a “chilling effect” on witnesses.
The changes “undoubtedly will dissuade witnesses who live in all neighborhoods from reporting crime or agreeing to testify as witnesses,” he said at the Codes Committee hearing.
Proponents of the new discovery rules, which supersede the so-called “blindfold” laws, have said they have the potential to speed up cases and reduce jail terms. Loosening and accelerating the presentation of evidence means defendants and their attorneys also will no longer be made to consider plea offers without knowing the evidence.
But while some reforms were necessary, Mr. McMahon said, legislators—and by extension, Governor Cuomo—did not sufficiently think through what the new laws would demand prosecutorially, and also with regard to workload.
“Clearly the people who wrote and passed this law did so in a bubble. They probably never looked at a prosecution file in their life,” he said.
Mr. McMahon, a former City Councilman and Congressman who has been Staten Island’s DA since January 2016, said the criminal-justice reforms were disproportionate to any needed correctives. “We have from day one, since last spring, been pleading and arguing and making the case for modest changes,” he said.
15 Days 'Under Burden'
For instance, he said, a more workable discovery timeline would be 45 days, rather than the 15-day limit. “It’s an undue burden and I think that should be eliminated,” adding that his office has always had “an open discovery policy,” turning over materials to the defense typically within three weeks of arraignment.
He also called for additional protections and assurances for victims and witnesses.
Ms. Clark said that although she “embrace[s] the reforms,” with several of them “long overdue,” many of the modifications could prove burdensome for her office.
Specifically, she said, turning over materials within the 15-day window would prove challenging, even in routine cases.
Getting witness statements, police accounts, incident reports, medical records, ambulance call reports and reviewing relevant material, including officers’ body-worn cameras, ballistics reports, even social-media channels, she said, was time-consuming, in part because there is no workable system that allows easy access and sharing of records among law enforcement, courts, city agencies and other institutions.
“The lack of cutting-edge technology hinders us from implementing the discovery reform now,” she testified at the Rules Committee hearing. “Currently we have no way to file electronic discovery, and our storage and email systems are overwhelmed.”
All of the city’s DAs applied for and received additional funding from the city to help their offices meet the rules’ demands.
The Bronx DA’s office received just under $6.4 million to handle the additional tasks tied to reforms. Nearly $4.7 million of that is designated for salaries for trial preparation assistants, detective investigators and other personnel. The balance went toward technology upgrades, a spokeswoman for that office said.
Mr. McMahon said his office was hiring additional discovery specialists, paralegals and other aides. In the meantime, he said, existing staff has been working overtime to contend with the surfeit of demands.
“We have people working overtime and late since Thanksgiving,” he said. “It is a herculean task.”
But he added, the newly legislated criminal reforms in the aggregate “gum up the works so prosecutors can’t fairly prosecute cases,” he said.
His office, he said, “may have to make decisions based on the law rather than on the case.”
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