Law 360: NY's Outlier Status On Coughing Up Evidence May Soon End

New York state Sen. Jamaal Bailey plans to introduce a bill this month that would reform the state's discovery law for the first time in 40 years. (Courtesy photo)

New York state Sen. Jamaal Bailey plans to introduce a bill this month that would reform the state's discovery law for the first time in 40 years. (Courtesy photo)

Law360.com | NY's Outlier Status On Coughing Up Evidence May Soon End

By RJ Vogt

In May 2015, the City of New York Police Department alerted media outlets of a manhunt for someone suspected of robbing three Queens-area Dunkin' Donuts at knifepoint over a four-day stretch.

Later that summer, prosecutors arrested Terrell Gills for allegedly committing the second robbery based on a partial DNA match — but nobody told him or his lawyers that a different person named William Waldon had already been arrested and confessed to the other two robberies.

Gills would go on to spend a year and a half awaiting trial from behind bars on Rikers Island, unable to afford a $10,000 bond. It wasn't until the week before his February 2017 trial that the district attorney's office shared detectives' notes revealing Waldon's arrest and subsequent 9-year sentence.

Gills' attorney, Maria Martinez of the Legal Aid Society of New York, said that if she and her co-counsel had discovered the notes sooner, they would have used the information to push for her client's release and a dismissal of the case. Although Gills was eventually cleared of wrongdoing and is now pursuing civil litigation against police, he still spent 18 months in pretrial detention for a crime he didn't commit.

"Essentially, the DA here just withheld evidence," Martinez told Law360. "For 18 months, we were operating in the dark."

Under New York's discovery law, considered one of the most restrictive in the country, the prosecutors were not required to turn over material like detectives' notes any earlier than they did.

But this year progressive lawmakers aim to amend the state's so-called "blindfold law" thanks to a new Democratic majority in the New York Senate. Senator Jamaal Bailey from the Bronx told Law360 he is filing a bill this month that would require material like police reports to be disclosed within 15 days of arraignment.

Like his previous efforts in 2017 and 2018 to amend the state's discovery law, Bailey said his bill would also require prosecutors to share witness information, as is already required in every other state except New York, Louisiana, South Carolina and Wyoming.

"The prosecution, unless the matter is exculpatory, doesn't have to furnish the information until essentially the eve of trial," Bailey said. "That hamstrings defendants ... and makes defendants plead without having the requisite information. We're one of four states with such restrictive discovery requirements and I think enough is enough."

Bailey's reference to how New York compares to other states is backed by a report the New York State Bar Association's Task Force on Criminal Discovery published in 2015. The detailed 147-page document says that the state's rules haven't been significantly revised since 1979, making an overhaul "urgently needed and long overdue."

"New York's discovery statute does not even direct prosecutors to disclose all known information and evidence that potentially shows the defendant is innocent or that supports a defense," the report states. "Instead, it simply tells them without elaboration to follow constitutional requirements."

But three prosecutors on that task force warned in an attached dissent that changing the rules would have "enormous consequences for the criminal justice system."

In fact, many Empire State DAs are already practicing open discovery, without it being required, according to David Soares, president of the District Attorneys Association of the State of New York and DA for Albany County. But he told Law360 that doesn't mean his organization will support changes that introduce unreasonable time constraints and potentially compromise victim safety.

"I think we're open to discovery reform so long as it doesn't put our victims and witnesses in harm's way," Soares told Law360. "The challenges that we as DAs are facing, they're not ethical, moral, political or however else you want to describe it — it's realistic, capacity challenges."

Soares noted, for example, that requiring police to turn over evidence such as body cam footage within 15 days of arraignment ignores the fact that a prosecutor has to watch hours of footage and block out identifying features of passersby before it can be shared.

As for the idea that witnesses' addresses and other information would always be kept discreet by defense attorneys, he pointed out that they're obligated to share information with their clients.

"We turn over grand jury minutes all the time," he added. "Those minutes end up on social media."

In November 2017, New York Chief Judge Janet DiFiore attempted to alleviate some of the dispute over discovery standards by announcing that criminal trial judges should issue orders to prosecutors "to timely disclose exculpatory evidence favorable to the accused."

Along with orders reminding defense attorneys of their "obligation to provide constitutionally effective representation," DiFiore said at the time that the measures would "go a long way to help prevent and remedy systemic errors that contribute to wrongful convictions."

But her effort did not change any laws; only lawmakers can do that.

Bailey's legislation takes cues from a model discovery bill prepared by the National Association of Criminal Defense Lawyers, which proposes prosecutors should be required to turn over "complete files" of all agencies involved in the investigation and prosecution at least a month before trial, including all evidence "that may reasonably appear to be favorable to the defendant" and a list of witnesses' names, addresses and phone numbers.

Bailey's bill, like the NACDL model, will require the same level of discovery from the defense as well.

Reform advocates argue that the concerns of district attorneys like Soares should be alleviated by the testimony of DAs in other states with open discovery.

John Schoeffel, staff attorney at the Legal Society of New York, noted that Boston's former DA Daniel Conley told the New York task force in 2012 that his office liked open discovery and was able to protect witnesses. Schoeffel also pointed to the fact that no state has ever broadened discovery and then seen fit to restrict it again.

"It's a one-direction movement nationwide of broader discovery and earlier discovery, and it's worked everywhere else," he said.

Rebecca Brown, director of policy at the Innocence Project, added that earlier discovery is crucial for the roughly 70 percent of New York's jail population who have not been convicted and are being detained pretrial.

"While waiting for prosecutors to turn over evidence, defendants often surrender to pressure to take unfair plea deals and avoid long jail time or harsh prison sentences that could ensue from unfavorable verdicts at trial," she said. "All without knowing whether prosecutors actually possess credible evidence of guilt."