Need For Speed Undercover Reformed

[Shawnna Franz]

Additionallyunder the new discovery statute, prosecutors are forced to share witness information and grand jury testimony early on and even if a witness is not going to testify at trial.[6] Witnesses are granted less anonymity and, understandably, by all available measures and reporting, are choosing not to testify in increasing numbers of cases.

At the same time, defense attorneys are under similar time constraints to read the newly extensive material, much of it irrelevant or duplicative. But with no repercussions for not doing so, defense attorneys frequently do not even open their discovery packages before their digital access passwords expire. According to sources with firsthand knowledge of this data, during at least the first year after 245 implementation, defense attorneys were failing to access discovery packages within their 30-day windows for a staggering 60% of cases.[13]

In most cases, substantive discovery material is sufficient for defendants (who, of course, know what they did or did not do) to decide whether to plead guilty or to go to trial. Plea bargains represent a benefit to guilty defendants, prosecutors, and taxpayers. Defendants can expect a lesser sentence than at trial and without the delays and uncertainty that trials entail. Prosecutors are also relieved of uncertainty and are freed from the highly involved work of collecting all the material and going through complex trial preparation. Instead, they can simply share the substantive and potentially exculpatory evidence that they have with defense and collect no further. And taxpayers are spared the expense of prolonged detention, supervision, and processing of defendants and the costs of juries, courtrooms, and administration associated with trials.

But the actual legislative change, which came in April 2019, was vastly more far-reaching than this and almost all other proposals. This was perhaps not surprising, as it was based on drafted legislation from none other than the Legal Aid Society, which provides criminal defense and advocacy.[20]

Although advocates will tout the reduction in pleas as a triumph for defendants, in many cases these are caused by arbitrary compliance hurdles. Did the defendant commit a crime where eight officers, each with a separate body camera, happened to show up, or did the defendant interact with just one officer who did not write down much of the occurrence? Did the ADA who received the case have a paralegal adept at tracking down obscure pieces of paper, or one who gives up when he or she cannot easily obtain a piece of the case? Rather than increasing fairness, the new system lacks it. Two defendants who commit the same crime in the same way are now more likely to suffer different outcomes, based on pure chance.

The new discovery statute did accomplish two positive things: it established more efficient and digital systems for sharing trial and other material between agencies; and, although attached to ill-advised mandates, it began the process of enumerating all the documents that could be handed over to defense and specifying which ones should be handed over.

Nevertheless, in April 2019, the NYS Legislature passed Criminal Procedure Law Article 245, which took effect on January 1, 2020. Article 245 established new breadth and accelerated time frames for pretrial evidence-sharing. The new guidelines, as well as two amendments that passed in May 2020 and April 2022, are detailed below.

These reassurances were critical because often, especially where violent crimes are concerned, a witness may be known to the defendant. This is doubly true for domestic violence and gang cases. A rational witness might fear that if a defendant knows that she will be testifying at trial, or if he knows that she testified at the grand jury, she will be in danger.

Further, the defense may now move for a court order to access a crime scene or other premises, even the very home of a victim or a witness. Not only might this clearly make witnesses reluctant to participate, but the legislation also did not delineate how the interviews or scene inspections would be structured and supervised.[32] This creates an additional layer of fear and uncertainty for potential witnesses.

A few caveats were added regarding the mandated sharing of witness names and contact information. Unless the court rules otherwise, and with notice to the defense, prosecution may now initially withhold identifying information of 911 callers, victims and witnesses of sex offenses and sex trafficking offenses, and victims and witnesses of defendants involved in criminal enterprises. Although, even for these categories, prosecution must share identifying witness information 15 days prior to the trial or a hearing, or as soon as is practicable. The defense can make a motion to receive these details sooner.[33]

In the April 2022 budget process, NYS Legislature passed amendments to limit the obligation to turn over discovery for traffic infractions[35] and to underscore that when prosecutors file a supplemental certificate of discovery compliance, they must provide a detailed basis for delayed disclosure. If the court determines that prosecution exercised proper due diligence, the court can rule that the initial certificate remains valid, even though it ultimately proved incomplete. This added process has only increased the clerical burden on ADAs.

Critically, the penalty for not being ready on time is case dismissal. And under CPL 30.30(2) defendants who are in custody must be released if a prosecutor is not ready for trial within even more restrictive timelines.

The exact impact of the new law was blurred when the Covid-19 pandemic hit less than three months after the law took effect. On March 17, 2020, NYS temporarily suspended specific time limits for legal proceedings and curtailed court operations.

Critically, the 30.30 speedy-trial clock was paused on pending cases by executive orders of then-governor Andrew Cuomo, giving prosecutors more time to prepare and file discovery material and certify readiness for trial.

In the short term, this beneficially gave prosecutors and others more time to transition to the new requirements and to prepare the hugely enlarged amount of material for trial. This extra time appeared doubly fortunate because, since 245 represented a criminal procedure law change, it was applied to all existing cases, as well as new ones. Also advantageous, Covid initially suppressed some degree of crime and forced police to switch to a reactive, rather than proactive, level of activity, reducing arrests that would otherwise lead to more court cases.

After Covid measures eased and courts reopened, the problems created by 245 hit hard. It became immediately apparent that the time frames allotted to collect and turn over the vastly expanded discovery material were not sufficient. The real significance of this was not just that prosecutors, to an overwhelming degree, were failing to file discovery COCs in time. Rather, the problem was that the discovery burden was so time-consuming that ADAs were running out their entire speedy-trial time windows in the process. So numerous cases that otherwise, in a just system, would have been prosecuted were getting dismissed.

It is largely because the burden of trying to file discovery COCs is nearly impossible (Figure 7). Statewide, prosecutors were able to file COCs for cases pending more than 20 days (the only public metric provided by the state to track COCs) on only 21% of cases.

For misdemeanors (Figure 12), these shifts are again even more pronounced: the percentage of disposed cases that were dismissed year-to-date in September 2022 was over 66% higher than in 2019.[58] Meanwhile, convictions fell by over 40% in that time.

As one upstate DA explained, he has seen a few trial-seasoned defense attorneys sign discovery waivers.[61] But these are the rare exceptions: in general, it is simply too risky for prosecutors, who have no certain protection against later accusations of coercion, which could cost them the case or potentially have future professional ramifications. For ADAs, it would mean putting the case entirely in the hands of the defense attorney.

A final point: 245 has put an enormous degree of responsibility on judges to grant or deny 30.30 and discovery motions. Judicial discretion is an important and constructive part of our system; but when it increases, outcomes across the system can become less consistent. More pragmatically, as judges spend more time reviewing motions, the entire system can slow down.

Unfettered low-level criminal offending destroys livelihoods, neighborhoods, and communities. Counter to popular narratives, the majority of black residents and of all residents in the fastest-growing U.S. cities want police to be more responsive, even to infractions like littering, graffiti, and public urination.[64]

Indeed, not prosecuting these misdemeanors precludes vital opportunities to prevent or solve larger crimes. This is especially pertinent to many hate-crime attacks, which, at 604 incidents by the last week in 2022, have increased 47% in NYC since 2019 YTD.[69] Per reporting, many of the unprovoked violent street attacks on Asians and Jews were committed by individuals with lengthy misdemeanor records of the time likely to get triaged away under the pressures of 245.[70]

This is the more regrettable, since nearly half those arrested by NYPD for hate crimes suffer from mental illness, and, for this population, prosecution following earlier arrests could have provided an opportunity for supervised treatment.[71]

Implementation of 245 has been very expensive in initial investments in technology and training, as well as in ongoing and increasing costs of data-sharing, storage, and additional administrative staffing. As mentioned, myriad added processes and witness services have attached expenses. The extreme financial toll associated with this statute makes it important to consider whether these costs do the most to ensure a just and efficient criminal justice system, or whether investment elsewhere might achieve more.

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