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BDS TESTIFIES BEFORE NYS SENATE HEARING ON THE IMPLEMENTATION OF PRE-TRIAL DISCOVERY REFORM

TESTIMONY OF:

 

Yung-Mi Lee – Supervising Trial Attorney

Criminal Defense Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York State Senate

Standing Committee on Codes

Hearing on the Implementation of Pre-trial Discovery Reform

September 9, 2019

My name is Yung-Mi Lee. I am a Supervising Trial Attorney in the Criminal Defense Practice at Brooklyn Defender Services (BDS), one of the largest legal service providers in Brooklyn. BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and tools for self-advocacy for over 30,000 clients in Brooklyn every year. I thank the New York State Senate Committee on Codes and, in particular, Chair Jamaal T. Bailey, for holding this oversight hearing on preparations for the implementation discovery reform.

BDS commends the New York State Assembly, Senate and Governor for the transformative criminal justice reforms included in the budget. These reforms go a long way towards correcting the unfair pre-trial justice system that currently exists, in which people languish in jail because they cannot afford bail, awaiting trial or considering a plea offer without access to police reports, witness statements, and other basic information needed to defend themselves. Senator Bailey, in particular, deserves praise for his deliberate consideration of the important details of the criminal discovery process and his successful efforts for real reform. I also want to recognize the tremendous work of countless public defenders, people impacted by the criminal legal system, their families, and many other advocates, all of whom organized and advocated across the state for several years to make these reforms a reality.

With these amendments to the bail, discovery, and speedy trial laws, most people who are arrested will be guaranteed release rather than incarceration and will have all the evidence and information related to their case. An important provision in these reforms requires police to provide appearance tickets as opposed to immediately incarcerating people alleged to have committed low-level offenses. Now, many more of the people we represent should never set foot in a jail cell, a vast departure from today’s reality. Given the devastating and even deadly impact that even 24 hours in jail can have on a person, particularly a young person or someone with a health condition, this change exemplifies the profound improvements to justice in New York that will begin on January 1, 2020. All that said, the efficacy of these reforms will depend on implementation and, for that reason, I am grateful to the Senate for its oversight of this process.

Why New York Reformed It’s Discovery Laws

Under the outgoing discovery statute, in New York, unlike most of the rest of the country, prosecutors and police are not required to provide police reports and other crucial evidence, or “discovery,” to people facing criminal allegations or their attorneys until trial begins – months or years after an arrest. More than 95% of cases never make it to trial; they either end in plea deals or dismissals. That means nearly everybody who is charged with a crime might never see all the evidence collected by police and prosecutors. In short, they were blindfolded. This “blindfold law” contributes to mass incarceration, wrongful convictions and court delays. This injustice has hugely disproportionate impacts on Black and Latinx New Yorkers, who are far more likely to be arrested and to be jailed on unaffordable bail. The pre-trial legal system effectively operates as a tool of coercion to plead guilty, regardless of guilt or innocence. However, earlier this year, led by reform champions like Senator Bailey and Assembly Member Joseph Lentol, New York followed in the footsteps of every other major jurisdiction and enacted landmark legislation to require open, early and automatic discovery, ushering in a new chapter in our state.

Implementing Discovery Reform

The criminal discovery reform legislation included in this year’s New York State budget generally requires all evidence and information in a criminal case to be turned over as soon as is practicable, and no later than 15 days after a criminal case begins and on an ongoing basis, It also mandates that prosecutors make these disclosures prior to the expiration of any plea offer.  Early and complete disclosure promotes fairness in the criminal justice system.  As such, the law does not limit discovery to the specified list of discoverable items.  A party can request and a court can order disclosure even if it is not specified within the law as long as it is relevant to the case.  This landmark reform also allows for the defense to adequately investigate a case so that even if items are not within the control or possession of the prosecutor, the defense can still move to preserve evidence or a crime scene and the defense can subpoena any additional items that are not in the prosecutor’s control.

Importantly, the law also includes special provisions requiring sanctions and remedies for non-compliance.  These remedies or sanctions include adjournments, reopened hearings, adverse inferences, excluded or precluded evidence, mistrials, or dismissal, depending on the possible impact of the discovery violation. Without a certification of compliance (i.e., that discovery is complete), the prosecutor will not be able to announce ready for trial and thus stop the statutory speedy trial clock under CPL §30.30.

Witness and Victim Safety

Prosecutors throughout the state and, except for Brooklyn, across New York City have long withheld discovery claiming public safety or witness safety concerns. While witness safety concerns are valid in a relatively small number of cases, the new law allows prosecutors to move for protective orders in those extreme cases. In Brooklyn, unlike most of the rest of the state, the Kings County District Attorney’s has a longstanding policy to provide discovery to the defense on an ongoing basis in most cases, thus debunking the myth that most cases raise witness safety or intimidation concerns. This policy has improved outcomes and streamlined cases.

The new discovery law protects witness safety and incorporates safeguards recommended by the New York State Bar Association’s Task Force on Discovery. The Task Force specifically endorsed exchanging names and addresses at an early stage. This Task Force included prosecutors, defense attorneys, judges and academics and addressed the need for both safety and disclosure of evidence. Here are five key points to remember: (1) In the vast majority of cases, there are no risks to witnesses – and often there are no civilian witnesses at all. The new law empowers judges to order that any and all evidence be withheld from people facing criminal allegations and their attorneys in the rare cases in which witness safety may be at risk. (2) Prosecutors from other states have endorsed reform, as have crime survivor advocates here in New York. (3) Judges already have tools to protect crime victims and other witnesses, including orders of protection, which prohibit all contact between defendants and any other party. (4) Prosecutors already have tools to protect crime victims and other witnesses, including felony charges for violating orders of protection or intimidating witnesses. (5) Discovery reform is NOT an experiment. The vast majority of other states have enacted legislation that both requires the timely disclosure of evidence, including witness information, and keeps survivors and witnesses safe.

Proposed Witness Portal as a Circumvention of the Law

The new law thereby balances the defense need to investigate competently – by requiring the disclosure of witness names and adequate contact information – with the need to protect witnesses in those rare cases where safety issues arise.  However, in response to the enactment of reforms, the New York City District Attorneys (collectively, the “DAs”) have informed us that starting on January 1, 2020, defense attorneys will not receive any contact information and instead a portal application would be required to contact witnesses in their respective cases (the “witness portal” or the “application”). Such a portal would be the “default” regardless of whether witness safety concerns are ever an issue. It is designed to hide the witness’ contact information and to allow the DA and the witness sole control over how they should be contacted.

This portal fails to comply with the statutory requirements of the new C.P.L. § 245.20(1)(c) and 245.20(7) because it does not provide “adequate contact information” for witnesses as will be required. It also runs afoul of the state and federal constitutions because it will prevent adequate investigations in many cases in violation of the right to effective assistance of counsel; it violates due process reciprocity requirements because the defense is still required to disclose “addresses” for all of its intended witnesses; and it will be an inadequate method for disclosing Brady witnesses. For these reasons, we adamantly object to the use of the witness portal and we are asking the State to intervene in the DAs’ use of the application in violation of the discovery statute, the Constitution, and ethical rules.

Additionally, the Legislature has already rejected a statutory proposal allowing for the use of such a portal as a method of communicating with witnesses. Throughout the legislative process, the District Attorneys Association of New York (“DAASNY”) vigorously opposed timely disclosing any witness contact information to defense attorneys. In an effort to reach a compromise, the New York County District Attorney’s Office proposed using a secure onlineportal — like the one proposed here — as the means for the defense to contact witnesses. This

proposal was submitted to the Executive and shared with the Assembly and Senate at the end of February 2019. The Legislature rejected that proposal and instead mandated that prosecutors disclose the “names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense.”  This mandate can only be interpreted to mean that prosecutors are required to give defense attorneys adequate information to contact witnesses directly, without an intermediary. The witness portal flagrantly contravenes the legislative intent to provide counsel with direct access to witnesses.

Timely Discovery

The first day of a criminal prosecution can derail a person’s life, discovery at the earliest possible moment is critical. The statute directs prosecutors to turn over all evidence as soon as is practicable, but no later than 15 days after arraignment. In other words, prosecutors should turn over all documents and reports in their file at the first appearance, also known as criminal court arraignments, including police reports, complaint room screening sheets (also known as Early Case Assessment Bureau reports), photographs, video recordings and witness and complainant statements. Most of these documents are immediately available to the Assistant District Attorney assigned to the case and, as discussed below, the new law requires interagency cooperation, so there is absolutely no excuse for withholding this evidence.

Discovery & Informed Plea Decisions

The statute also recognizes that people should make decisions about guilty pleas not only voluntarily, but also knowingly. That means that, at least seven days (or three in pre-indictment cases) prior to the expiration of a plea offer, prosecutors must turn over, in addition to the aforementioned items, any written or record defendants’ statements, grand jury testimony, names and contact information for law enforcement personnel involved in the case, names and contact information for witnesses, expert opinion and scientific reports and evidence, electronic recordings, exculpatory evidence, evidence that tends to negate guilt, evidence that reduces the seriousness of the charged crime or might reduce a sentence, summaries of all promises or inducements offered to people who may be called as witnesses, and more. I cannot overstate the importance of having early access to these items to review them with our clients and advise them on plea offers that may fundamentally impact them for the rest of their lives, whether with a period of incarceration, a permanent criminal record, a risk of deportation, or otherwise.

Interagency Coordination

Many of these items will require the NYPD and OCME to provide evidence to prosecutors that, under existing discovery practices, would often never actually be made available to the defense. Prosecutors will now be required to make efforts to communicate with NYPD and OCME to preserve and obtain documents and physical evidence. There is a due diligence requirement built into the statute. This free flow of information between the prosecutor, law enforcement, and other agencies is essential for discovery reform and compliance. The State Legislature and the New York City Council must ensure that NYPD, OCME, and other agencies providing discoverable material to the District Attorneys Office are compliant and assist the prosecution with this process.

Implementation by Defense Attorneys

Public defenders are actively preparing for the new era of criminal discovery. We are conducting training within our own organizations to ensure that follow-up investigations are consistent, communications with clients are timely, and plea offer deadlines are met. We are also enhancing our technological capacity to receive and store discovery electronically, which we will receive en masse.

Conclusion

Brooklyn Defender Services recognizes that the new discovery law requires fundamental change throughout the state of New York. It is important to remember why New York State took on this task. Change of this magnitude is going to improve the way the legal system operates as a whole across the state. It means more transparency and accountability in criminal cases, particularly in prosecution. In this era of broad support for ending mass incarceration, this law effectively sets a higher standard for criminal prosecution and the deprivation of liberty, particularly because it was coupled with meaningful bail reform. Overhauling the system was exactly what the legislature and Governor intended, and we urge the State Legislators not to allow prosecutors and law enforcement to shirk their new responsibilities under the law.

 Thank you for your consideration of our comments. If you have any questions, please contact Jacqueline Caruana at jcaruana@bds.org or (718) 254-0700 Ext. 388.

 

 

BDS TESTIFIES BEFORE NYC COUNCIL COMMITTEE ON IMMIGRATION

TESTIMONY OF:

Sonia Marquez – Immigration Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council

Committee on Immigration

September 3, 2019

Introduction

My name is Sonia Marquez and I am Civil Rights and Immigration Senior Staff Attorney at Brooklyn Defender Services (BDS). Our organization provides multi-disciplinary and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 30,000 cases involving indigent Brooklyn residents every year. Since 2009, BDS has counseled, advised or represented more than 10,000 immigrant clients. We are a Board of Immigration Appeals-recognized legal service provider and a provider of the New York Immigrant Family Unity Project (NYIFUP). In addition, we represent individuals in applications for immigration relief, adjustment of status, and naturalization before the United States Citizenship and Immigration Services (“USCIS”), and in removal proceeding in New York’s immigration courts. I thank the New York City Council Committee on Immigration for the opportunity to testify about the proposed local laws and resolution in relation to the “Public Charge” rule and its impact on New York City residents.

Please refer to our written testimony about the presented to the New York City Council on November 15, 2018 about the impact of the proposed “Public Charge” rule on NYC.[i]

Impact of the Rule

As we previously laid out in our November 15, 2018 written testimony on the impact of the proposed “Public Charge” rule on New York City, the final Public Charge rule for inadmissibility targets low-income immigrant families and immigrants of color. The rule is intended to instill widespread fear, and will hurt not only immigrants but also U.S. citizen family members and their larger communities.

In expanding the types of public benefits analyzed during an inadmissibility determination, and lowering the threshold that could trigger inadmissibility, the Federal Administration is using the public benefits system to punish immigrants. The City has determined that access to these benefits promotes stability in the short-term and the long-term. By inducing disenrollment, the rule will negatively impact the ability of immigrant and mixed-status families to maintain employment, stay healthy, achieve stability, and pursue their full potential as New Yorkers.

The final rule also replaces the existing totality of the circumstances test with a weighted-factors scheme, which is perhaps more detrimental to the ability of low-income immigrants to become green card holders. Unlike the existing totality of the circumstances test, which was meant to identify individuals who would permanently and primarily be dependent on government resources, the new weighted analysis is a de-facto ban on low-income immigrants becoming lawful permanent residents. This analysis looks to factors such as the immigrant’s age, health, education-level and proficiency in English, employment history, and financial status and credit score. Mere employment, living wage, or modest savings will not necessarily be sufficient, and achieving a “heavily weighted positive factor” requires, among other things, an annual income or resources of a hefty 250% of the federal poverty guidelines or private health insurance. Notably, disenrollment from public benefits is just one factor in a myriad of factors, and will not alone result in a positive outcome. The rule turns the American Dream on its head by requiring immigrant families to achieve financial stability and success before getting permanent admission to the United States.

Moreover, the weighted-factors analysis is vague, opaque and complicated, giving immense discretion to the immigration official adjudicating the application. Without adequate legal help to navigate the rule and identify the required documentation, low-income immigrants will be at an even greater disadvantage when filing green card applications.

At Brooklyn Defender Services, we have seen the widespread fear and misinformation in the immigrant community caused by the public charge rule. Even before the rule was finalized, clients have told our social workers that they do not want to sign up for benefits, because they believe it will negatively impact their immigration relief options. One client with asylum status was so afraid of the impact of the public charge rule that our staff was unable to convince him that signing up for health insurance would not harm his ability to adjust his status in the future, even though the final rule excludes asylum-based adjustments. Since the final rule was announced, attorneys and social workers have fielded calls from clients who now fear using public benefits and are asking whether to disenroll. Immigrant clients who are victims of trafficking, victims of crimes, and those who are already green card holders, have expressed concern about the impact of the public charge rule on their ability to maintain legal status in the U.S., even though the rule will not apply to them. Undocumented clients, who may not personally qualify for most public benefits, express fear of limiting potential relief and future deportation because their U.S. citizen children get SNAP and Medicaid benefits.

Bills

Brooklyn Defender Services supports all five of the proposed bills and the resolution with the caveat that individuals seeking to disenroll in benefits should be encouraged to seek individualized legal counsel to analyze their particular circumstances, as well as the impact of enrolment or disenrollment in public benefits on their current and future immigration options.

1.                  Int. T2019-4982 – In relation to requiring the department of social services/human resources administration to provide assistance in modification of benefits.

Brooklyn Defender Services supports this bill. The bill will provide important information and advice for individuals who may be seeking to modify their benefits as a result of the expanded public charge rule. However, individuals seeking to disenroll or modify their benefits should be encouraged to seek individualized legal counsel to analyze their particular circumstances.

2.                  Int. T2019-4983 – In relation to requiring training for certain employees of the city of New York on federal regulations relating to inadmissibility on public charge grounds.

Brooklyn Defender Services supports this bill. This bill will provide training for city employees about the effects of the public charge grounds. We encourage the City to schedule periodic and recurring trainings to ensure that new incoming staff are also trained. Recurring trainings will also reinforce this complex information for existing staff and allow for updates and developments as the implementation and real-time effect of the public charge inadmissibility ground may require changes in advice and training for employees.

3.                  Int. T2019-4984 – In relation to requiring the distribution of information on local emergency feeding programs.

Brooklyn Defender Services supports this bill.

4.                  Int. T2019-4985- In relation to the distribution of educational materials about the federal regulations relating to inadmissibility on public charge grounds.

Brooklyn Defender Services supports this bill. This bill calls for the dissemination of information about the effects of public charge grounds on a family’s immigration status. It is important that school-age children and their parents receive simple, straight forward, and accurate information to combat wide-spread confusion and fear, which could lead to disenrolling in benefits that are essential to a family’s stability and health.

5.                  Res. T2019-4981- Calling on the United States Congress to pass, and the President to sign, legislation that would prohibit the enactment of the federal rule entitled, “Inadmissibility on Public Charge Grounds”.

Brooklyn Defender Services supports this resolution.

Additional Recommendations

In order to combat the widespread confusion and fear—which is at the heart of the rule’s purpose—there is an increased demand for individualized legal consultation for immigrant individuals and know-your-rights presentations to accelerate the dissemination of accurate information. In response to the expanded public charge rule, the messaging to the immigrant community has been to seek legal guidance to determine whether and how the public charge rule applies to an individual’s circumstances. This increased need for legal advice places an additional burden on legal service providers to digest the minutia of the rule and—in the short-term—meet with, screen, and advise immigrants seeking legal guidance on whether to disenroll their family from needed benefits.

As explained above, legal service providers who serve low-income communities are already feeling the impact of the public charge and we anticipate this will be felt in four main ways. First, clients who are concerned about their use of public benefits are reaching out to attorneys and social workers to discuss the impact of the rule on their case. Staff must undertake a careful analysis of a client’s potential relief options and financial situation, before advising on whether and how the rule will apply. Second, adjustment of status applications subject to the rule will become more onerous to prepare. In an attempt to satisfy the weighted-factors analysis, the documentation needed will be substantial and the attorney will have to litigate each of the factors to argue for a positive outcome of the test. For legal service providers who serve low-income clients, the rule will impact nearly all family-based adjustment of status applications. Third, the rule’s intent is to increase denials of applications from low-income immigrants, which means additional work and resources spent appealing the denials and representing clients in removal proceedings when they are referred to immigration court. Fourth, to mitigate misinformation and fear-based disenrollment, providers will need to build materials and deliver Know Your Rights presentations to community organizations.

We recommend that the City ensure that immigrants who need individualized legal advice regarding the impact of the rule on their use of public benefits are connected with legal service providers who have the knowledge and capacity to assist.

Finally, we recommend that the New York City Council consider additional funding for the legal services that are needed to provide advice and representation to potentially affected individuals to ensure that legal service providers have the capacity to help mitigate and combat the impact of this rule on New Yorkers.

Conclusion

The bills and resolution before the Council today are important steps to mitigate the harmful impact of the public charge rule and provide the New York immigrant community with essential information. We thank the sponsors and Immigration Committee Chair Carlos Menchaca for advancing them and urge the full Council to pass them.

If you have any questions about my testimony, please feel free to contact Nyasa Hickey, Immigration Counsel at NHickey@bds.org by phone at 718-254-0700.

[i] Brooklyn Defender Services written testimony about “The Impact the Proposed “Public Charge” Rule on NYC,” November 15, 2018, available at http://bds.org/bds-testifies-before-the-nyc-council-committees-on-immigration-health-general-welfare-on-the-impact-of-the-proposed-public-charge-rule-in-nyc/.