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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.