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How New York's new discovery laws for trials impact you

Posted at 2:33 PM, Feb 13, 2020
and last updated 2020-02-13 14:33:17-05

NEW YORK — Several prosecutors, police and everyday New Yorkers rallied against bail reform when it was instituted six weeks ago, but the changes to the state’s discovery law largely flew under the radar.

Yet town officials raised taxes because of it and district attorneys logged hours of overtime in recent weeks because of it. Under the law, prosecutors are required to turn over information to the defense within 15 days of an arraignment.

The old discovery law, known as “the blindfold law,” contributed to mass incarceration and decades of wrongful convictions, Brooklyn Defender Services Executive Director Lisa Schreibersdorf said. Prosecutors waited to share evidence with the defense until the last minute.

“With the reforms passed last year, New York followed in the footsteps of 46 other states by allowing people accused of crimes to see crucial evidence early in their cases,” Schreibersdorf said.

A January email from Manhattan District Attorney Cyrus Vance to his staff and a spokesperson for the Brooklyn District Attorney’s Office confirm the law has added a lot of extra work for the hundreds of prosecutors across the city.

“Although this job has always required late nights and weekends, the strain of complying with the new laws goes well beyond what might reasonably be asked of you in terms of work hours,” Vance wrote.

He might not prosecute all cases.

“We are evaluating whether to defer or even decline prosecution in certain classes of cases and are examining how to better staff both institutional and case assignments,” he wrote in the email.

Vance authorized a per diem stipend for people working late and approved the purchase of additional and faster laptops.

Schreibersdorf noted “It should not be easy to put someone in jail or have them face lifelong consequences.”

“As defense attorneys we have taken on the essential work of analyzing this evidence as it comes to us, which is how we can best represent our clients,” Schreibersdorf said. “Prosecutors must also do this work and it will take time to get used to the new normal in the courts.”

It’s not just prosecutors who are upset with the change. In Freeport, NY, taxes went up for the first time in seven years because of the new discovery laws, a town spokesperson said. They increased 5.6 percent.

Freeport Mayor Robert Kennedy, who is also president of the New York Conference of Mayors, said he has no problem with the bail portion of the criminal justice reforms, but he anticipates the discovery law change could cost Freeport $2.7 million over the next year.

Police are working overtime and coming in on their days off to comply with discovery requests from the Nassau County District Attorney's Office, he said. Those requests have quadrupled since the start of the year.

“The officers, I wonder if they're cognizant of this and saying 'I don't want to arrest anybody because I don't want to come in on my day off,’” Kennedy said.

Discovery preparation includes gathering and turning over every bit of body camera, patrol car video and radio and 911 communications.

Kennedy said he hears the same complaints from mayors across the state. He’s petitioned Gov. Andrew Cuomo to end what he’s calling an “unmandated tax hike.”

But Freeman Klopott, a spokesman for the New York State Division of the Budget, said the tax hike shouldn’t have been necessary. The Executive Budget created a District Attorney Discovery Compensation Fund to support “the digital transmission of evidence among district attorneys, law enforcement, and defense attorneys.”

“The discovery reforms ensure defendants are receiving evidence that has always been provided on the charges against them in a timely fashion, and there’s no reason for this to raise costs unless law enforcement and prosecutors were previously not providing basic evidence,” he said.