Push for New Discovery Laws; Politico Article Points Out Severe Problems
WEDNESDAY, SEPTEMBER 30, 2015

Politico New York magazine carries an excellent article on the need for new discovery laws.

Under New York’s Criminal Discovery law, prosecutors in most cases are allowed to withhold a vast amount of evidence until a trial begins. John Schoeffel, Staff Attorney in the Special Litigation Unit; Peter Mitchell, Staff Attorney in CDP Administration; and Seymour W. James, the Attorney-in-Chief are quoted in the article. 

“If we want a criminal justice system that is fair and equitable, it seems to me that we ought to make sure people are receiving effective counsel,” Seymour James told POLITICO New York. “How do you professionally counsel someone to take a plea or not if you don’t know what the evidence is against them?”

 

 

 

Politico New York
Criminal justice advocates push for new evidence rules 
By Colby Hamilton
September 29, 2015 

The night before her client’s murder trial was set to begin in Brooklyn in 2012, defense attorney Ikiesha Al-Shabazz received a box from the district attorney’s office, filled with witness statements, evidence reports and four hours of surveillance footage.

“I was pretty much in tears,” Al-Shabazz recalled. “My client is facing life. Do you really think that’s reasonable to have me go out in the hall and sit and digest what’s in this box in the next hour?”

Whether or not it was reasonable, the delay in providing evidence was legal under New York’s criminal discovery law.

That law, in place since 1979, allows prosecutors in most cases to withhold a vast array of evidence — including police reports, witness names and statements, as well as any witness’ criminal history or pending charges against them — until a trial begins.

Defense attorneys have long complained that those delays hamper their ability to build an effective defense, leading to a high number of wrongful convictions, while also burdening the system with cases that could have been settled with plea agreements, if attorneys had known the extent of the evidence against their clients.

In Al-Shabazz’s case, she pleaded with the judge to allow her an evening to review the evidence, and the surveillance footage ultimately showed her client was elsewhere during the crime.

“The government said my client wasn’t on the tape at all,” she said. Her client was acquitted.

Advocates for reforming the process are hopeful that the national conversation over criminal justice could help change the criminal-discovery process in New York State.

“If we want a criminal justice system that is fair and equitable, it seems to me that we ought to make sure people are receiving effective counsel,” Seymour James Jr., attorney-in-chief for the Legal Aid Society, told POLITICO New York. “How do you professionally counsel someone to take a plea or not if you don’t know what the evidence is against them?”

Under the current law, the state’s 62 district attorneys each control the discovery process in their respective counties, leading to stark differences between neighboring jurisdictions.

“Our experience is that Manhattan is by far the most strict,” said John Schoeffel, an attorney with the Legal Aid Society’s Criminal Defense Special Litigation Unit, which serves as the primary public defender across New York City’s five boroughs.

According to Schoeffel and others, the office Manhattan District Attorney Cyrus Vance Jr. provides scant information about each case until the start of the trial.

“They turn over witness statements — if you’re lucky — the night before, or the Friday before, if the trial starts on Monday, and they play strictly by the statutory rules of Article 240,” Schoeffel said, referring to the statute that governs discovery.

“In a complaint or an indictment on a felony case, they won’t include the name of the person making the accusation,” said Peter Mitchell, another Legal Aid attorney who practices in Manhattan. “It says something like, ‘Police Officer X says that he is informed by a person known to the district attorney’s office.’ And that’s it,” Mitchell said. “So even something as basic as who’s charging me with this crime is covered. They’ve really pushed the limit.”

Mitchell and Schoeffel said that level of disclosure is unique among city prosecutors, and that Vance applies the same rigid rules to violent and non-violent felonies.

Vance’s chief assistant, Karen Friedman-Agnifilo, said in a statement that defense attorneys’ concerns over Manhattan’s supposed restrictiveness “is more of a perception than a reality.”

“Our track record demonstrates that we engage in early and expedited discovery practices, provided witness safety is not affected,” she said.

Friedman-Agnifilo pointed to expedited discovery that has been available in more than 11,000 low-level quality of life cases since 2011, which she said had an inconsistent track record of participation. In addition, she noted that Manhattan engaged in a year-long open-file discovery pilot project between 2013 and 2014, but said the results “were inconclusive and did not expedite pleas or dispositions in any meaningful way.”

Just across the East River, Brooklyn is generally considered the most forthcoming county in the city, notwithstanding the experience of Ikiesha Al-Shabazz.

“Brooklyn is the best,” said David Louis Cohen, an attorney in private practice who handles cases across the city. “You get more discovery, earlier and easier for the most part, in Brooklyn than any borough in the city.”

Cohen said he had just come from the initial court appearance in an attempted murder case in Brooklyn.

“I was handed a stack of discovery,” he said, which included police reports, medical records and other information critical to the trial.

Experiences in the other boroughs are somewhere in between.

On Staten Island, former D.A. Daniel Donovan adopted a process similar to that of Brooklyn’s, and one attorney who had previously worked in Manhattan described a much more open process in the Bronx, saying the two counties were “like night and day.”

(Defense attorneys say Queens is more restrictive than the other outer boroughs, but still better than Manhattan.)

The patchwork rules aren’t limited to the five boroughs.

“We don’t get everything — we get more than the statute would allow,” said Tim Donaher, the appointed Public Defender for Monroe County, who described a relatively open process that takes a case-by-case approach.

But Donaher said the situation is drastically different in Ontario County, just to the southeast, where Monroe County residents who are sometimes arrested at the mall in nearby Victor “don’t get anything.”

“Had they done that one mile over the border, they would have gotten some measure of discovery from the [Monroe] D.A.’s office as a matter of course,” he said.

Ontario County District Attorney Michael Tantillo disagreed with Donaher’s characterization. While he acknowledged his office’s official policy was a strict interpretation of the statute, Tantillo said he and his staff are flexible.

“Any time a defense attorney wants to, and requests to, sit down with me or one of the assistant district attorneys to go over a case, we will always agree to meet with the attorney,” Tantillo said. “To those lawyers who are enterprising enough to reach out to us, we will absolutely entertain their request.”

In January, the New York State Bar Association released a 147-page report that urged reforms to the state’s criminal discovery process. The report noted that New York lags behind dozens of other states in its discovery laws, ranking among the 13 most restrictive, alongside Alabama, Georgia, Kentucky, Louisiana, South Dakota and Wyoming. It also noted that some conservative states have enacted reforms in recent years, including Texas, after former governor Rick Perry signed some of the most open discovery laws in the nation in 2013.

The report recommends changes to New York’s statute to allow early disclosure of witness information and other information, such as police reports, evidence and information favorable to the defense, intended exhibits, and greater disclosure of expert opinion evidence. In turn, the report said defense attorneys should have a greater obligation to provide reciprocal discovery for the prosecution, and agreed-upon timetables that prosecutors can reasonably meet.

The bar association report followed a task force convened by the state’s chief judge, Jonathan Lippman, in 2014, which also recommended changes to the system, including the disclosure of witness statements and information at least 30 days before trial, the creation of a pre-trial discovery scheduling conference, and fixing trial dates to encourage a faster discovery policy.

Both reports also attempt to address the biggest concern among prosecutors — that they retain the ability to redact or suppress witness information in order to protect witnesses from intimidation.

Gerald Mollen, the district attorney of Broome County and the current president of the District Attorneys Association of the State of New York, said his group has examined the issue of discovery reform “extensively” and continues to oppose statutory reforms.

“The culture of witness intimidation and threats has changed dramatically over the last decade,” Mollen said, noting that his policy in Broome was one of early voluntary disclosure. But he said witness information is now being used to intimidate witnesses on social media, as well as more direct attempts, especially in gang cases, to confront witnesses who are identified. The changes are leading him to reconsider his office’s stance toward discovery.

“That never existed when I was first a prosecutor, and now it’s ever-present,” he said, noting that the law allows D.A.s, who “reflect the values and the criminal justice concerns in that local community,” to make important decisions about what evidence to disclose and when.

“If you create a statute [change], that call would no longer be mine or the prosecutor’s,” he said. “It would be a judge who’s never met with a victim or a witness, never evaluated a case in that way.”

The long-standing stalemate in Albany has stalled any attempts at reforms in the Legislature, including one last session that was filed by Assemblyman Joseph Lentol of Brooklyn. Lentol’s bill mirrored most of the reforms suggested by Lippman’s task force and the state bar association, including a 15-day timetable for prosecutors to hand over witness information.

“It’s not really the protection of witnesses they’re concerned about,” said Lentol, noting that witnesses are often police officers and other professional experts. “It’s trial by ambush. They have the deck stacked in their favor, so why should they give it up?”

The reforms are unlikely to progress in the face of opposition from Republicans who control the State Senate, and generally side with district attorneys on questions of criminal justice.

Albany County District Attorney David Soares, said his own office engages in “a very liberal discovery process” — with some exceptions in certain cases — but that advocates contribute to the impasse when they refuse to acknowledge prosecutors’ concerns.

“They have staked out a position,” he said. “No one is moving toward the center because it’s a zero-sum game. … It’s not the issue of D.A.s losing control of the process. It’s also safeguarding the identity of people who may not want to be involved in the criminal justice system. There’s not a whole lot of thought that’s going into these discussions.”

But reformers, including the state’s chief judge, remain hopeful that a national tide can help spur change in New York State.

“I think we’re coming to a turning point in the sense that the criminal justice system is, to some degree, having a crisis of confidence in terms of the public’s support,” Chief Judge Jonathan Lippman said. “I think discovery is such an organic part of the system that it very much lends itself with a lot of these issues — wrongful conviction, grand jury and bail reform — all of it to me is about, for the most part, a level playing field.”

This article appears in the new issue of POLITICO New York magazine.