Tighten NY discovery laws to achieve balance

The fact that three progressive New York City district attorneys are pushing in Albany to toughen the discovery rules for criminal cases sounds at first like a political man-bites-dog story. After all, these DAs — Alvin Bragg of Manhattan, Darcel Clark of the Bronx, and Eric Gonzalez of Brooklyn — are better known for lightly treating minor offenses, to help de-incarceration, than for any aggressive street-crime crackdowns.

But in fact, prosecutors of all different political pedigrees around the state sound like they're on the same page when it comes to discovery reforms enacted in 2019.

They have ample reason. The law known as Article 245 has reportedly led to the dismissal of hundreds if not thousands of otherwise viable criminal cases. That’s not due to considerations of justice; it's because of onerous time constraints on the prosecution to prepare and hand over to defendants evidence that can be more voluminous than ever — and in some instances, trivial.

Given the built-in gamesmanship of the court system, public defenders have been lobbying state lawmakers to defend the recent status quo. They get automatic disclosure beyond what they might even ask for, and if they don't receive it promptly, they can get a judge to toss the case. The volume, preparation and time involved have created daunting logistical problems for those prosecutors most conscientious about complying.

Now, as the State Legislature works out an annual budget, an eleventh-hour agreement appears to be forming on amending the bail and discovery changes. The changes could tilt, to a measured degree, back toward prosecutors, in the name of a fair balance. Public mood and circumstance have changed in the past four years, driven by an end to record-low crime and by a general sense of disorder.

There are hard numbers to support the political considerations here. According to court-system data such as that cited by the conservative Manhattan Institute, dismissals rose statewide by 14% between 2019 and 2021, while guilty pleas fell from 49% to 33% of cases. All this suggests that the changes on the playing field have given defense attorneys more confidence that if they don’t cut a plea deal, their cases will be dismissed on procedural grounds rather than go to trial.

As a result, a proposed change discussed at the Capitol would impose a timeline on defense lawyers under which they identify and request case materials from prosecutors that they didn’t receive. They, too, have an obligation to work for a speedy resolution to their cases. Of course, this doesn't mean prosecutors should start withholding relevant evidence.

Full details of what Gov. Kathy Hochul and legislative leaders are negotiating regarding discovery are eagerly awaited. Just like reforming so-called bail reform, it looks like lawmakers are striving for a sensible change in the right direction.

They must complete that task quickly to better balance those scales of justice.