Of all the criminal justice “reforms” the Legislature passed in 2019 — bail, discovery and parole, and Raise the Age — discovery “reform” was the most pernicious.
It placed an impossible burden on prosecutors to turn over almost every piece of evidence imaginable to the defense in just 20-35 days, including:
- All body-worn cameras, even for officers not directly involved in the arrest
- All police-disciplinary records for every officer on the scene
- Witness names and contact information, which means if prosecutors are concerned a witness is at risk or might be intimidated, they must ask the judge to redact that information.
- Criminal record of “potential witnesses”
- Biographies and writings of the experts
- Disciplinary records of any potential police witnesses and any other material ‘relevant to the case’.
Prosecutors who have not completed all discovery obligations are deemed not ready for trial. What could possibly go wrong?
We see a lot went wrong in a recent Manhattan Institute study. Detailed analysis finds that tens of thousands of cases are dismissed because it is nearly impossible to comply with this discovery law. Cases are slow to resolve, conviction rates are falling, defense attorneys won’t even open the files prosecutors send them 60 percent of the time, participation in alternative sentencing programs is declining, and disillusioned young assistant district attorneys are leaving his offices in droves Yes.
The study notes that in New York in 2019, before discovery reform, 49% of misdemeanor cases resulted in dismissals. In 2021, that number jumped to 82%. In 2022 it was 74%. The defendants, unsurprisingly, are playing the clock.
It has become an awful game of criminal justice chicken. If ADAs cannot comply with discovery obligations, they cannot respond ready for trial. If they do not plead ready for trial in a misdemeanor case within 90 days, the case is dismissed.
One result is that most misdemeanor defendants no longer enter pleas. Why would they do that? In 2019, 50% to 60% of misdemeanor city cases went to trial. In the first six months of 2022, according to the latest statistics from the Office of Court Management, only 25% of misdemeanor city cases went to trial, meaning the remaining 75% continued to further clog the system.
Assistants must try to comply with these ridiculously burdensome discovery obligations in cases that used to be immediately invoked. The answer for many DA offices is screening. They must decide which cases to prosecute and which to dismiss, resulting in a misdemeanor dismissal rate of 82%. Is it any wonder that shoplifting (a misdemeanor) is such a growth industry in Gotham?
Felony cases fare slightly better, largely due to the allocation of precious resources to the more serious cases and the longer six-month speedy trial. Even so, in 2019, 21.15% of felony cases were dismissed. In 2022, the number jumped to 35.11%. These increased dismissals are not because the accused is proven innocent. They are dismissals based in large part on the ADAs’ failure to timely provide required discovery materials.
To give an example of the size of the problem: The Queens DA’s office reported that by the end of 2021, it had turned over 54,000 body camera videos and 1.6 million discovery records to the defense. Body-worn camera videos average around 30 minutes and many are much longer. So, conservatively, those assistants had to review about 20,000 hours of video and 1.6 million documents before sending them to the defendants.
And that’s just Queens, which historically only had about 16% of the city’s crime! The Manhattan Camera Unit has linked and stored more than 339,000 videos related to investigations and cases between January 2020 and March 4, 2022.
It’s not as simple as hiring more paralegals to prepare discovery. The typical misdemeanor ADA includes between 100 and 200 cases at any given time. The law requires ADAs to file a certificate of compliance with the court certifying that all discovery has been completed. It is the assigned assistant’s responsibility to make sure that discovery is complete and that there is nothing in it that would endanger witnesses.
Due to increased attrition in DAs’ offices, cases are transferred from departing ADAs to new ADAs, who must review all discovery material again. If they find anything, no matter how trivial, that was not delivered, they will have to file a new certificate, which will trigger a new defense motion to dismiss.
As the Manhattan Institute study notes, crime in the city is rising but arrests are down. NYPD clearance rates are falling, suggesting that witnesses and victims are afraid to come forward knowing that their name will be known to the accused very quickly.
It’s so sad. These lawmakers destroyed a criminal justice system that had reduced crime by 70% and reduced incarceration by 60% between 1993 and 2019 — and had made New York the safest big city in America.
Their bail “reforms” released thousands of career criminals from prison, unleashing a terrible crime wave on the city, and then compounded it by making it impossible to prosecute criminals once caught. It’s time for state legislators to sit down with prosecutors and responsible members of the bar and fix this.
Or they can just be honest and admit as they campaign that they see increased crime and dysfunction in the criminal justice system as an acceptable cost of these reforms and tell people to suck it up and live with it. And then let the voters decide.
Jim Quinn was an executive prosecutor in the Queens DA’s office, where he served for 42 years.
