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January 17, 2019

NY Times op-ed explores "How to Make New York as Progressive on Criminal Justice as Texas"

The New York Times this week has this notable editorial about criminal discovery that bore the provocative (and fitting) headline that I have quoted in the title of this post.  As practitioners know, these discovery issues can have a profound impact on plea practices and sentencing outcomes.  Here are excerpts:

In New York, prosecutors operate within a draconian system that gives them free rein to leave defendants in the dark about aspects of their cases for months or even years.  In cases big and small, state law authorizes prosecutors to withhold key evidence from defense lawyers and their clients until the eve or sometimes the day of trial.  Prosecutors in New York do not have a legal obligation to turn over in a timely fashion all police reports, witness names, DNA evidence, surveillance footage or anything else from their investigative files.

Though a 1963 Supreme Court decision found that prosecutors have a constitutional duty to turn over anything significant that may exonerate a defendant, that ruling has not been consistently enforced because prosecutors who flout the rule are rarely punished.  Advocates for defendants say this entrenched legal structure in New York puts a “blindfold” over the eyes of defense lawyers and their clients. And it runs up against Americans’ basic understanding of how fairness is meant to work in the legal system.

By preventing access to even the simplest information about a pending case, prosecutors thumb their noses at the presumption of innocence that is owed to every person accused of a crime.  They also run the risk of forcing the accused to make an impossible choice: Plead guilty with little to no information about their case or go to trial and risk an even harsher punishment.

New York’s law means that cases take longer to resolve, leading to backlogs; that defense lawyers are unable to advise their clients about the charges against them, let alone guide them through an often life-altering process; and that wrongful convictions can occur, in both extreme and not-so-extreme cases.

Most states, including the law-and-order bastion Texas as well as North Carolina and New Jersey, have changed their laws and procedures to allow open and early disclosure of evidence in criminal prosecutions, which has led to fairer outcomes and deterred prosecutorial abuse.  Now New York has a chance to join the mainstream on this issue....

Prosecutors defend New York’s current system not on its merits but with fearmongering, arguing that reforms will leave witnesses and victims at risk.  Disclosing the identity of a person with direct knowledge of an incident under investigation, the thinking goes, would hamper the state’s ability to protect him or her and to fight crime.

But there are sensible ways of dealing with witness safety concerns. The Brooklyn district attorney’s office, which has for decades made its evidence files readily available, shows that reform is possible.  Likewise, the states that have left the old model behind have seen no need to go back to it.  It’s time for New York lawmakers to bring the rest of the state in line with this essential notion of justice.

January 17, 2019 at 12:10 PM | Permalink


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