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How to Make New York as Progressive on Criminal Justice as Texas

It’s time for the state to end the system that leaves defendants in the dark about the evidence against them.

Credit...Leonardo Santamaria

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In New York, prosecutors operate within a draconian system that gives them free rein to leave defendants in the dark about aspects of their cases for months or even years.

In cases big and small, state law authorizes prosecutors to withhold key evidence from defense lawyers and their clients until the eve or sometimes the day of trial. Prosecutors in New York do not have a legal obligation to turn over in a timely fashion all police reports, witness names, DNA evidence, surveillance footage or anything else from their investigative files.

Though a 1963 Supreme Court decision found that prosecutors have a constitutional duty to turn over anything significant that may exonerate a defendant, that ruling has not been consistently enforced because prosecutors who flout the rule are rarely punished.

Advocates for defendants say this entrenched legal structure in New York puts a “blindfold” over the eyes of defense lawyers and their clients. And it runs up against Americans’ basic understanding of how fairness is meant to work in the legal system.

By preventing access to even the simplest information about a pending case, prosecutors thumb their noses at the presumption of innocence that is owed to every person accused of a crime. They also run the risk of forcing the accused to make an impossible choice: Plead guilty with little to no information about their case or go to trial and risk an even harsher punishment.

New York’s law means that cases take longer to resolve, leading to backlogs; that defense lawyers are unable to advise their clients about the charges against them, let alone guide them through an often life-altering process; and that wrongful convictions can occur, in both extreme and not-so-extreme cases.

Most states, including the law-and-order bastion Texas as well as North Carolina and New Jersey, have changed their laws and procedures to allow open and early disclosure of evidence in criminal prosecutions, which has led to fairer outcomes and deterred prosecutorial abuse.

Now New York has a chance to join the mainstream on this issue.

By repealing the outmoded statute that allows for 11th-hour evidence disclosure and passing legislation that would make access to this information automatic at or near the beginning of a criminal case, New York lawmakers could level the playing field for defendants and bring the state closer to its progressive ideals.

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transcript

Attorneys discuss the problems with New York’s criminal discovery rules.

“I think when I think about discovery, I think about unfairness.” “We are blind. We’re in the dark. We have no idea what the facts are.” “Witnesses disappear. Surveillance tape gets taped over. We don’t have the opportunity as the defense to learn the truth.” “People’s lives are affected.” [music] “So what is discovery? Discovery is evidence. What is evidence? Evidence is police reports.” “Witness statements, photos, videotape, a little slip of paper with what might seem like a note that isn’t relevant but can be.” “Discovery is really the heart and soul of a case. It’s the meat of a case.” “It’s all the evidence that the prosecution has relating to a criminal case. And they have an obligation to turn it over to the defense attorney.” “It’s just, when are we going to get it?” “The prosecutor does not have to give you that information until the eve of trial, the day of trial.” “That’s too late. You head into a trial representing someone, and you don’t have any evidence.” “A case file that, for a year, was this thick suddenly now becomes this thick. And unfortunately, sometimes the piece of paper that may convince a prosecutor to drop a case isn’t revealed until 12 or 14 months down the road.” “Our client was charged with having committed an armed robbery. This was an innocent person that was held for 18 months before his trial. We didn’t have any of those police reports earlier on, and that’s because New York State law says that the D.A.’s office doesn’t need to turn that over. And so they’re not going to.” “They claim that there was a gun in the bag. When they tested the bag for fingerprints, there were 13 fingerprints on that bag, none of which matched my client’s. We ultimately won this trial, but my client was this close to going to prison. Had we gotten this evidence before — “ “Had the prosecutors disclosed that information — “ “We might have been able to negotiate something where my client didn’t have to go through the stress and the emotional turmoil of trial.” “We could have made an application for release of our client pending the outcome of the case.” “It could have saved an innocent person from being held for 18 months on Rikers Island.” “It’s a tragedy because it happens every day across New York State.” “Most cases end up as some type of plea bargain or some type of resolution short of trial.” “The vast majority of what we’re talking about with discovery reform is allowing individuals to make informed decisions. You want them to understand what is the evidence before them. You want them to understand what the consequences are.” “And I think it’s really difficult for them to understand why the system is set up this way. And oftentimes, I’ll have clients say, well, that doesn’t seem right. What do they have on me? I want to know. Or, I didn’t do it. I want to see that video, because it’s not me.” “If they had the strong evidence against him, why not show it?” “The lawyer response is, well, that’s what the law says. And the client response, understandably, says, well, then the law is unfair.” “When you’re actually able to present this evidence — good, bad or indifferent — to our clients, it really just changes the whole trajectory of the case.” “You really realize how arcane our system is when you go to a national conference or you speak to the lawyers of other jurisdictions, and you tell them about your discovery laws, and they look at you like you have three heads.” “I guess we’re a progressive state as New York. You would be shocked to know that almost every state has better discovery laws than us.” “States in the South — Texas is number one with discovery. Texas. I think New York state, if we’re going to be the progressive state, we ought to be No.1. We should probably have a discovery law that just says, the district attorney shall, within five days of arrest, turn over everything. And anything that comes in after that, they’ll turn over.” “All they have to do is walk to a copy machine, make a copy and hand it over.” “If we create a system whereby everyone is forced to get the discovery early — “ “It would help both sides, really.” “Overall, everyone gets to learn more about the case.” “Early discovery is about fundamental fairness. And I think that is something that, as New Yorkers, as public defenders, as prosecutors, we could all come together and agree that fundamental fairness should drive our criminal justice system.” [music]

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Attorneys discuss the problems with New York’s criminal discovery rules.

Prosecutors defend New York’s current system not on its merits but with fearmongering, arguing that reforms will leave witnesses and victims at risk. Disclosing the identity of a person with direct knowledge of an incident under investigation, the thinking goes, would hamper the state’s ability to protect him or her and to fight crime.

But there are sensible ways of dealing with witness safety concerns. The Brooklyn district attorney’s office, which has for decades made its evidence files readily available, shows that reform is possible. Likewise, the states that have left the old model behind have seen no need to go back to it.

It’s time for New York lawmakers to bring the rest of the state in line with this essential notion of justice.

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A version of this article appears in print on  , Section A, Page 22 of the New York edition with the headline: Take the Blindfold Off Defendants. Order Reprints | Today’s Paper | Subscribe

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