Discovery reform rollback doesn’t make final budget cut
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Rollbacks to the state’s discovery reforms were pulled from budget negotiations at the last moment on Thursday. Photo by Matt H. Wade/Wikimedia Commons
By Jacob Kaye
Governor Kathy Hochul late Thursday evening announced that she and legislative leaders had reached an agreement on the state’s budget – nearly a month after it was initially due. Not included in the final agreement was a last minute push by a group of New York City district attorneys to roll back the state’s discovery reforms.
The elimination of the proposal came less than a day after a group of over 50 public defense firms throughout New York State called on lawmakers to reject the proposal and only a few hours after the city’s five district attorneys issued a statement appearing to pull back on the discovery reform change they had only the day before been pushing.
“This is something that the district attorneys had brought to our attention, asking for changes,” Hochul said Thursday evening. “We thought we had a plan that met the needs and the district attorneys decided that that was not the path.”
“If they want to work on it during the session, that’s certainly something that’s available to them,” she added.
The initial proposal received strong pushback from dozens of public defense firms. In an open letter released early Thursday, the public defense firms said that rather than push the change through with the budget the legislature and governor should put more funding into discovery work – a funding mechanism was not worked into the original reforms. In practice, the reforms have put an increased burden on both defense attorneys and prosecutors.
“Changes to crucial legislation should always be based on evidence and subject to public debate and scrutiny,” the letter read. “Thus far, the process that has led us to this moment has been entirely clandestine and undemocratic. Not only has it excluded all of us and even more critically, the people directly impacted by the criminal legal system, it has also excluded elected lawmakers and those they represent.”
“Any consideration of substantive changes to discovery practices should be based on all-stakeholder input,” they added. “In fact, the infrastructure to enable a deliberative process already exists and that combined with funding will allow us to fully realize the promise of the 2019 reforms.”
Some of that funding appeared to come to pass. On Thursday evening, Hochul said that the state would be sending $40 million to both public defenders and to district attorneys offices – though she didn’t specify whether or not the funds would be designated for discovery work.
Three of the city’s district attorneys – Bronx District Attorney Darcel Clark, Manhattan District Attorney Alvin Bragg and Brooklyn District Attorney Eric Gonzalez – began pushing for a change to the discovery law that would shift the burden of ensuring that all evidence in a case is turned over to the defense, onto the defense. Queens District Attorney Melinda Katz was not behind the initial proposal, which was first reported in mid-April, but told the Eagle at the time that she was in support of the proposed change.
Under the discovery reforms passed in 2019, prosecutors must submit all evidence they have against a defendant to that defendant's attorney within a set time frame. Once they do, they can file a certificate of compliance and declare that they are ready for trial. Currently, the burden to turn over evidence rests solely with the prosecution.
The proposal, which has at times held up negotiations over the state’s budget which is now nearly a month past due, would require that defense attorneys submit a motion challenging a prosecutor’s “certificate of [discovery] compliance” within 35 days or waive their right to challenge it at any other point.
By filing the motion, the speedy trial clock – which requires that a trial begin 90 days after an arraignment for a misdemeanor and six months after an arraignment for a felony – would stop, granting prosecutors more time to compile their evidence, public defenders argue. The clock wouldn’t again start until the motion is ruled on, which could be several months after its filing.
The public defenders argue that the change would allow prosecutors to turn over a portion of the evidence and either force defense attorneys to file the motion, stopping the speedy trial clock, or risk waiving their rights to force prosecutors to turn over any additional evidence before trial.
The proposal, which was one of three presented to lawmakers by the district attorneys, appeared to be making headway this month during the delayed budget negotiations but was reportedly struck from negotiations at the final moments.
On Thursday afternoon, Katz, Bragg, Clark, Gonzalez and Staten Island District Attorney Michael McMahon, said in a joint statement that they didn’t like where negotiations over the proposal were headed.
“While we appreciate that legislative leaders have been open to commonsense changes to the law during the state budget negotiations, we are concerned that the language on the table will not have a meaningful public safety impact,” the district attorneys said in a statement.
While appearing to pull off the throttle of their push to get the proposal included in the budget, the DAs said that they would continue to lobby state lawmakers to make changes to the reforms before the end of the legislative session this summer.
“We look forward to continuing to engage in a productive discussion on statutory changes in the coming weeks before the end of the legislative session, and urge lawmakers to provide our offices additional funding so our prosecutors have the necessary resources to do their jobs effectively,” they said.
Both DAs and prosecutors have agreed – there isn’t enough money earmarked for the work discovery reform requires.
Prosecutors throughout New York State, including in Queens, have said that the increased workload required by the reforms has led to long hours and burnout, ultimately leading some longtime prosecutors to retire. With increasing attrition rates, remaining prosecutors’ caseloads have begun to mount.
The same is true for defense attorneys. Experiencing similarly high attrition rates, public defense attorneys have seen mounting case loads.
But unlike public defense firms, prosecutors’ offices in New York have received additional funding in the years following the reforms’ passage to fund the work. Public defense firms have not.
“There has never been a fulsome effort to entirely implement the law with the funding it requires,” the public defender firms said in their open letter Thursday.
In response to the DA’s statement, the Legal Aid Society said late Thursday afternoon: “As we’ve said since day one, funding for both public defender and District Attorney offices is the true solution, not rollbacks, to ensure that New York’s landmark discovery law can live up to its full intended promise.”
“We’ll continue to work with Governor Kathy Hochul and the Legislature on a path forward that keeps these critical laws intact, measures that have brought more fairness to our criminal legal system and furthered public safety statewide,” they added.
