Trials are down, workload is up. Discovery reform fosters new normal in Queens criminal court
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Justice Joseph Zayas, the administrative judge of Queens Supreme Court, Criminal Term, said the court prepared for “front-end” delays caused by the state’s new discovery law. Eagle file photo by Andy Katz.
By David Brand
Three defendants were on trial in Queens Criminal Court on Friday, about a fifth of what had been the norm before Jan. 1. On most days, Queens trials are down by about 50 percent — from around 14 per day last year to six or seven, said Administrative Judge Joseph Zayas.
The decrease is a result of the state’s new discovery law, which forces prosecutors to give evidence and information favorable to a defendant to defense attorneys within 15 days of arraignment in most cases. Prosecutors must also turn over those materials, known as “discovery,” on older cases already in pretrial proceedings.
Before the law took effect, assistant district attorneys could wait until the night before trial to finally hand over discovery, hamstringing defendants and their attorneys, and prompting plea deals from people charged with crimes who have no idea what the prosecutor may use against them — or what information could help them mount a defense.
Less than two months after the discovery law took effect, Queens judges, prosecutors and defense attorneys continue to adjust to the new requirements, which have reshaped the work of the criminal justice system by front-loading evidence and information-sharing.
“I had to beg for a trial,” said Justice Ira Margulis at a forum on state discovery and bail reforms hosted by the Eagle Feb. 6. ‘There are many new rules with discovery that we as judges sitting in trial parts have to learn, as do the attorneys.”
A new dynamic
Pretrial processes have slowed down as prosecutors gather and submit materials, defense attorneys review the evidence and a new dynamic takes hold during hearings and plea negotiations — defendants now get a better sense of what prosecutors have, or don’t have, against them.
“The worst thing for justice is a document dump on the eve of trial,” said Bronx Criminal Court Supervising Judge George Grasso at the Feb. 6 Eagle forum. ‘It was, ‘Figure this out, counsel, and by the way we’re calling our first witness at 10 o’clock.’ That was pervasive, and clearly a major reform was appropriate there.”
Prosecutors must file “certificates of compliance” indicating that they have turned over all discovery materials, but defense attorneys can challenge the legitimacy of the certificates. The cases cannot proceed to pretrial hearings without the certificates and a resolution to the challenges. Assistant district attorneys have to go through the same processes with older cases, as well.
Zayas, the administrative judge, said the court spent months preparing for the new “front-end delays” by reducing case backlogs in accordance with Chief Judge Janet DiFiore’s “Excellence Initiative,” which calls for clearing older cases and streamlining proceedings.
Since 2015, the court has reduced overall felony cases older than one year by 38 percent and cases older than two years by 79 percent.
“Given these historic achievements and milestones in drastically reducing the total actual number of cases pending, I am confident that Criminal Term will continue to efficiently resolve and try cases once the parties have been able to comply with the demands of the new discovery statute,” Zayas said.
The new measure has had a specific impact on the work of prosecutors in Queens, who now spend a significant amount of time gathering information to share with defense attorneys. Most materials are easy to secure and share, while other key pieces of information — like police body camera footage — can take longer to obtain, said one Queens assistant district attorney who asked to remain anonymous to speak freely about the workload.
“The law was well intentioned, but it makes us responsible for things so quickly that are not practically in our control,” the ADA said. “Everything is so voluminous and it makes cases go longer.”
“Say you have a caseload of 100 cases and each new case comes in, and in 15 days you have to send [the discovery material], and inevitably the NYPD will have documents that you don’t even know about,” the ADA continued. “It’s a lot of work. A lot, a lot of work.”
The ADA said they now spend most of their days, including days off, compiling and sending discovery materials via email.
“For morale, it’s been burdensome,” the ADA said. “There are a lot of people who want to quit because of the new law.”
In Brooklyn, more than 20 prosecutors have resigned since the new law took effect, the Daily News reported. There are rumors about dozens of assistant district attorneys leaving the office in Queens, but it remains unclear just how many have quit. Nevertheless, their departure may be attributable to more than just a new discovery law. The office underwent its first major leadership change in nearly three decades when new DA Melinda Katz took office Jan. 1.
Katz’s office did not respond to multiple emails and phone calls seeking information or perspective for this story. (Editor’s Note: The Queens DA’s Office has not responded to more than a dozen inquiries by phone and email from this reporter in 2020).
‘A fairer system’
Despite the changes, Juliette-Noor Haji, the supervising attorney at Legal Aid’s Queens Criminal Defense Practice, says the Queens DA’s Office has actually been the best in the city at turning over discovery.
She and other defense attorneys said the backlog could have been addressed by district attorneys well before the law actually took effect. The measure was included in the state’s April 2019 budget.
“Why hadn’t prosecutors complied with discovery months and months ago?” Haji said. “There’s no reason why that discovery has been around for a year or further.”
Richard Torres, a forensics attorney in the Queens Defenders’ Homicide Unit, also had little sympathy for DA’s Offices complaining about the new requirements.
“The new discovery law wasn’t a surprise,” Torres said. “There was ample time to get ready on older cases and get their ducks in a row. There’s no reason to wait until January to begin working on this.”
Torres hailed the reform, which he said allows defense attorneys to “better investigate cases and look for proof of someone’s innocence.”
“We’re getting information about our cases that we weren’t getting before,” he said. “Yes, there’s more stuff to look at, and yes, it’s taking more time, but now we’re getting a chance to actually look at stuff … the discovery law makes for a fairer system.”
Nevertheless, defense attorneys have been inundated with emails containing discovery materials — sometimes giant attachments that take a long time to download and review, other times “piecemeal” paperwork delivered one page at a time, said defense attorney Randall Unger, a former prosecutor.
“We’re bombarded. It can be a little overwhelming to get 100 pages on a case that’s relatively new,” Unger said. “It can be like finding a needle in a haystack.”
But some of that information turns out to be crucial for building a strong defense early on. “You’re getting grand jury testimony on a case you just picked up,” he said.
Queens Defenders, formerly known as Queens Law Associates, has developed software for streamlining discovery sent via email. The new technology directs the materials to the appropriate lawyer in an easily readable format.
In response to the increased workload, the Queens defenders have also begun lightening lawyers’ caseloads and hiring more attorneys.
“To be fully prepared, you have to watch hours of video, grand jury testimony, audio and then analyze, compile and incorporate it into cross examination,” said Anthony Martone, the director of Queens Defenders’ Felony Youth Defense Unit. “Each case now does take more work and effort, but the result is we have a more just system.”
