Even as new cases emerge that highlight the flaws in the state’s new bail-reform law, three city District Attorneys with very different constituencies have continued to make the case against another sweeping criminal-justice reform affecting the discovery process, in which prosecutors turn over all relevant information to lawyers for the accused.
One is the requirement that this be done within 15 days of a defendant’s arraignment, which is the process by which he or she is moved from police custody into the jurisdiction of the courts. The speeding of the material’s being turned over to lawyers for the accused was meant to level the playing field by giving defense attorneys full information that might pinpoint weaknesses in the prosecution’s case that would dissuade them from making plea deals that in light of those problems were not fair to their clients.
Bronx District Attorney Darcel Clark argued last September before the State Senate’s Rules Committee that this was an unrealistic deadline considering all the material that could be involved and the DAs’ lack of some vital technology that could speed the process. It can require producing witness statements, police accounts, incident reports, medical records, ambulance reports, footage from officers’ body-worn cameras, ballistic reports and social-media channels that may have contained statements or videos concerning a crime.
“Currently we have no way to file electronic discovery, and our storage and e-mail systems are overwhelmed,” Ms. Clark testified.
And even as the DAs hire additional staff to help deal with that requirement (they can seek 30-day extensions, but some say setting the deadline at that 45-day mark is a more-realistic standard), they have serious concerns about protecting witnesses under the new law. It requires that they turn over contact information for the witnesses, potentially placing in defendants’ hands information that could aid them or those close to them a means of intimidating or physically harming those witnesses to discourage them from testifying. Although the DAs retain the option of seeking a protective order to preventive disclosure of this information, there is no guarantee they will get one.
DA Clark last year warned that “this is absolutely going to have a chilling effect on witness cooperation.” Manhattan DA Cy Vance also used the phrase “chilling effect” to describe the impact of this change.
And Staten Island DA Michael McMahon shares that concern, and told this newspaper’s Richard Khavkine that when both witnesses and victims learned their personal information was being given to defense lawyers, they expressed “a high level of incredulity.” He said it would be “unconscionable” if either of those groups wound up facing further danger as a result of this requirement.
He expressed a certain incredulity himself that state lawmakers apparently didn’t consider these pitfalls before speeding the law into effect as part of the state budget deal last spring. “Clearly the people who wrote and passed this law did so in a bubble, he said. “They probably never looked at a prosecution file in their life.”
That would not be true, however, of Governor Cuomo, who worked as an Assistant District Attorney in the Manhattan DA’s Office before following in his late father’s footsteps by pursuing a career in politics. So what’s his excuse for the ill-considered aspects of the new law, and why isn’t he doing more to pressure Assembly Speaker Carl Heastie to join Senate Majority Leader Andrea Stewart Cousins in moving to correct its egregious drawbacks?
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