WSJ: Cuomo Bid to Relax New York’s Discovery Laws Ignites Debate

Our client’s story in the Wall Street Journal underscoring New York's problematic discovery statute. During his two years fighting the case, our client lost multiple jobs and he was shunned by some members of his family. This could all have been avoided if the prosecutors more quickly turned over crucial evidence in discovery, as occurs in other jurisdictions across the country.

Wall Street Journal
Cuomo Bid to Relax New York’s Discovery Laws Ignites Debate
By Corinne Ramey
Jan. 22, 2018

Five people robbed a man at gunpoint in the Bronx on May 13, 2015.

Prosecutors said Terrence Wilkerson was one of them and charged him with first-degree robbery and other crimes. They offered the 42-year-old Bronx resident a plea deal, but Mr. Wilkerson didn’t take it, maintaining his innocence.

During Mr. Wilkerson’s two years fighting the case, he lost construction and handyman jobs and was shunned by some family members. “Once someone pins something like that it’s a label and it’s hard to shake off,” he said, of the criminal charges.

A jury found Mr. Wilkerson innocent at trial. But his lawyers say his legal ordeal could have been avoided if the law had required prosecutors to more quickly turn over evidence that ultimately cleared Mr. Wilkerson—a process known as discovery.

Under current law, prosecutors don’t have to give defense attorneys some evidence, such as witness statements, until a trial begins.

New York and three other states—Louisiana, South Carolina and Wyoming—have the most restrictive discovery laws in the U.S., state officials say. New York Gov. Andrew Cuomo has proposed making these laws less restrictive, including by mandating prosecutors share evidence such as witness statements and search warrants much earlier in the legal process.

These changes, which Mr. Cuomo, a Democrat, detailed in proposed legislation last week, require legislative approval. The New York State Bar Association and a state judicial task force have also recommended changes to the state’s discovery laws.

A jury found Mr. Wilkerson innocent at trial. He said of his ordeal: “Once someone pins something like that it’s a label and it’s hard to shake off.”

Proponents of the current rules say they are necessary to protect witnesses, who fear violence or harassment. Critics have nicknamed current rules “blindfold laws” because they say lawyers can’t adequately prepare for trial and defendants must consider plea agreements without knowing the evidence against them.

“It’s often either trial by ambush or plea without any knowledge,” said Tina Luongo, an attorney in charge of the criminal practice at public-defender group the Legal Aid Society. Ms. Luongo called New York’s laws “terrible, antiquated, unfair and unjust.”

Legal Aid attorneys said Mr. Cuomo’s proposal, which includes disclosing witness statements but not name and contact information, doesn’t go far enough. The proposal also allows prosecutors to redact certain information, which they said puts too much decision-making ability in the hands of prosecutors.

But some prosecutors say protecting witnesses is crucial because it helps solve crimes. If prosecutors disclosed witness information, these witnesses would feel intimidated or threatened, they say. This would make people hesitant to come forward and cooperate with law enforcement in future crimes.

“These are people we sit down with and look in the face and say, ‘We will do everything we can to hide your identity,’” said Scott McNamara, president of the District Attorneys Association of the State of New York. Because the vast majority of criminal cases end in plea agreements and therefore don’t go to trial, the names of most witnesses are never revealed.

Mr. McNamara, also district attorney of Oneida County, said witness intimidation is worse now than any time in his career. “All of the defendant’s friends on Facebook threaten that person,” he said. “We see it time and time again: ‘I know where they live. Snitches belong in ditches.’”

Some prosecutors point to the case of Israel Ramirez, the bodyguard of rapper Busta Rhymes, who was fatally shot in 2006 during the filming of a music video. Hundreds of bystanders were present and at least 20 people called 911, a law-enforcement official said. But no one came forward.

The murder of Mr. Ramirez remains unsolved. Law-enforcement officials say witnesses are afraid to come forward.

Others say relaxing the state’s discovery laws could benefit both prosecutors and defendants. If defendants see the evidence against them they may take a plea sooner, said Meg Reiss, executive director of John Jay College of Criminal Justice’s Institute for Innovation in Prosecution. This could also help cases move faster through the court system.

As for Mr. Wilkerson, his lawyers say the evidence that proved his innocence was a phone number they received a year and a half after his arrest. The robbed man said the thieves called an escort service during the incident. But phone records showed the robbed man had previously called the same number, before and after the robbery was committed.

Mr. Wilkerson said he keeps reliving his legal battle.

“It’s a hard pill to swallow,” he said. “The whole thing is still bothering me as if it’s yesterday.”

This article originally appeared in the Wall Street Journal.