NYT: Once as Pro-Prosecution as Any Red State, New York Makes a Big Shift on Trials

The State Legislature passed a law last month that will require district attorneys to turn over most of their evidence to the defense within 15 days of a defendant’s first court appearance.CreditCreditStephanie Keith for The New York Times


By Ashley Southall and Jan Ransom
May 2, 2019

For decades, the rules governing criminal trials in New York have been tougher on defendants and more favorable to prosecutors than those in most other states.

The state was one of only 10 that let prosecutors wait until the eve of trial to hand over witness names and statements and other crucial evidence to the defense, a practice that forced many defendants to decide whether to plead guilty without knowing the strength of the case against them.

But now the Democrats who seized control of the Legislature last fall have pushed through a bill that spins New York in the opposite direction.

The overhauled law, written largely by public defenders, will fundamentally transform how trials are conducted in New York, moving the state from having one of the most restrictive rules in the country regarding turning over the government’s evidence — a process known as discovery — to having one of the most open.

“Almost all states have done this decades ago,” said John Schoeffel, a public defender with the Legal Aid Society, who helped draft the statute.

Before the bill passed last month, New York was behind conservative states like North Carolina and Texas in overhauling its discovery law, and its rules were only slightly less restrictive than those in red states like Wyoming, South Carolina and Louisiana.

The new law requires district attorneys to turn over most of their evidence to the defense within 15 days of a defendant’s first court appearance.

Prosecutors and law enforcement organizations fought against the changes, arguing they will make it easier for defendants to intimidate witnesses, especially in sexual assault and gang cases.

“The only way we can get them to come forward is by promising them we won’t disclose their information until we absolutely have to,” said P. David Soares, the Albany County district attorney and the president of the state district attorney’s association.

Mr. Soares added that the tight deadlines in the new law were “nothing short of impossible,” given the volume of evidence prosecutors must gather.

The law, which takes effect in January, not only speeds up the timetable for prosecutors turning over evidence, but expands the definition of what must be turned over.

Currently, prosecutors are only required to share evidence they judge to be favorable to the defendant, as defined under the landmark Supreme Court ruling Brady v. Maryland. But the new law requires them to go further.

“Now, they just have to turn everything over,” said Rachel E. Barkow, the vice dean at the New York University School of Law.

Supporters say the new law levels the playing field, diminishing the heavy advantage New York prosecutors wielded.

Defense lawyers called the old statute the “blindfold” law, saying it kept defendants in the dark about the evidence against them and forced many to decide whether to enter a guilty plea without knowing the strength of the case.

Most of the state’s 62 district attorneys opposed loosening the law. For starters, they argued the new rules make them responsible for the failures of the police and other investigators to hand over evidence on time.

Discovery practices vary by county. While Queens has long been known for holding on to evidence until late in the process, the Brooklyn district attorney’s office established open discovery practices about two decades ago, and defense lawyers and prosecutors there say it has led to the early dismissal of many weak cases.

One of those cases concerned Derrick Penn, 37, who was accused of committing three armed robberies in 2013. Early in the case, Brooklyn prosecutors turned over detectives’ notes that indicated the robberies were part of a pattern that continued after Mr. Penn’s arrest.

Derrick Penn, 37, was accused of a string of armed robberies in 2013. Early in the case, Brooklyn prosecutors turned over detectives’ notes that indicated the robberies were part of a pattern that continued after his arrest. CreditElizabeth D. Herman for The New York Times They also turned over security camera footage of the robber, who was taller than Mr. Penn, and cellphone data showing Mr. Penn was never near the scene of one robbery. Once defense lawyers pointed that evidence out to prosecutors, they dropped charges.

“It was a horrible experience,” said Mr. Penn, who was slashed across the eye while he was jailed at Rikers Island for three months before he posted bail. He waited for his lawyers to receive the evidence. “It was a process to get all of it. You don’t even have a clue of what’s going on. I was totally clueless. That was the worst part.”

Nina Morrison, a senior staff attorney with the Innocence Project, said the failure to disclose evidence early is at the heart of many wrongful convictions.

“Sometimes key information doesn’t get turned over because the prosecutor is breaking the rules, but sometimes it’s inadvertent, like when police don’t give D.A.s the whole file,” she said. “Either way, earlier discovery will give everyone more time to get to the bottom of it.”

For decades, Republicans who controlled New York’s Senate blocked more than a dozen efforts to change the state’s discovery statute. But in last fall’s election, the power shifted to Democrats, who quickly passed not only the discovery law, but measures to curtail the use of cash bail and speed up the pace of trials.

Under the new rules, prosecutors will have 15 days to turn over evidence like police reports, photos, electronic recordings and grand jury testimony, including the names of witnesses. They may request an extension up to 30 days under exceptional circumstances. The law also requires the defense to disclose certain evidence 30 days after prosecutors open their files.

The law empowers judges to hold prosecutors in contempt if they fail to meet the deadlines and to bar the government from using evidence that is not properly disclosed.

The statute also permits prosecutors to request a protective order to shield witness names and information until trial, though judges are not required to grant it.

Perhaps most importantly, the discovery law pegs disclosure deadlines to the arraignment at the beginning of a court case rather than the trial near the end. That shift underscores a reality in New York that holds true across the country: About nine out of 10 cases never make it to trial because most people accept guilty pleas.

Supporters of the changes say people often plead guilty without knowing how strong the prosecution’s evidence is, and each day in jail makes it more likely they will give up.

“It’s really just about basic fairness,” said Scott Levy, the special counsel to the Bronx Defenders’ criminal defense practice.

Defense lawyers said the old system too often ensnared people like Terrell Gills, who spent 18 months in jail accused of robbing a Dunkin’ Donuts in Queens before prosecutors revealed that another man had confessed to robbing two nearby locations the same day, evidence that led to his swift acquittal.

In another Queens case, Romeo Martinez, an undocumented immigrant, spent two years in Rikers awaiting trial on robbery charges before the district attorney turned over the name and telephone number of a city firefighter who had seen what happened and had called the police.

At trial, the firefighter gave testimony that contradicted the accounts of two men who claimed Mr. Martinez had tried to take their wallets and had slashed one of them with a knife. The two men had attacked Mr. Martinez, not the other way around, the firefighter said. A jury acquitted him in just a few hours.

Another trial that might have had a different outcome under the new rules was that of Donnell Genyard, who is serving a 19-year sentence for manslaughter, his lawyers said.

The Queens district attorney’s office waited until just before trial to hand over the names and addresses of two witnesses whose accounts raised doubts about Mr. Genyard’s guilt, his lawyers said.

The witnesses told the police they had seen the victim, Eartha Wilson, at least an hour after prosecutors said she was killed in a stairwell outside a party in Brooklyn in 2003. The jury never heard their testimony, and Mr. Genyard was found guilty of first-degree manslaughter in 2007.

“This trial could have looked very different,” Richard Joselson, of the Legal Aid Society, said.

Prosecutors warned that the new law would slow down cases, saying creates an enormous burden for them to quickly collect and share files at a time when tools like police body cameras are vastly expanding the amount of potential evidence.

Worse, prosecutors say, turning over a witness list too early gives ruthless defendants a chance to intimidate people who intend to testify against them.

Karen Friedman Agnifilo, the chief assistant district attorney in Manhattan, cited one recent murder case as an example: James Seabrook, 25, was accused of shooting and killing Steven Vasquez, 21, who in 2016 was trying to break up a fight inside a public housing complex in Harlem.

Mr. Seabrook’s defense attorney let his client’s sister take pictures of documents containing witness information, and she texted them to other people, according to court records. The witnesses took the stand, but declined to testify about the incident. A jury deadlocked on the top charge of second-degree murder.

Ms. Friedman Agnifilo said the chilling effect on witnesses was concerning.

“Will witnesses want to come forward in the first place?” she said. “We hope it doesn’t deter victims and witnesses from coming forward and reporting a crime.”