Of all the criminal-justice “reforms” the Legislature passed in 2019 — on bail, discovery and parole and Raise the Age — discovery “reform” was the most pernicious.
It imposed an impossible burden on prosecutors to turn over almost every imaginable piece of evidence to the defense in just 20-35 days, including:
- All body-worn cameras, even for officers not involved directly in the arrest
- All police-disciplinary records for every officer on scene
- Witness names and contact information, meaning if prosecutors worry a witness is put at risk or can be intimidated, they must petition a judge to redact that information.
- Criminal records of “potential witnesses”
- Expert-witness résumés and writings
- Disciplinary records of any possible police witnesses and any other material “related to the case.”
Prosecutors who have not completed all their discovery obligations are deemed not ready for trial. What could possibly go wrong?
We see that a lot went wrong in a recent Manhattan Institute study. The detailed analysis finds tens of thousands of cases are being dismissed because it is nearly impossible to comply with this discovery law. Cases are taking longer to dispose of, conviction rates are way down, defense attorneys aren’t even opening the files sent to them by prosecutors 60% of the time, participation in alternative-sentencing programs is down, and disillusioned young assistant district attorneys are leaving DAs offices in droves.
The study points out that in New York City in 2019, before discovery reform, 49% of misdemeanor cases resulted in dismissals. In 2021, that number soared to 82%. In 2022, it was 74%. Defendants are, unsurprisingly, playing out the clock.
It has become a distasteful game of criminal-justice chicken. If ADAs cannot comply with their discovery obligations, they cannot answer ready for trial. If they do not answer ready for trial on a misdemeanor case within 90 days, the case gets dismissed.
One result is that most misdemeanor defendants are no longer taking pleas. Why would they? In 2019, 50% to 60% of city misdemeanor cases were disposed of at arraignment. In the first six months of 2022, per the latest Office of Court Administration statistics, only 25% of city misdemeanor cases were disposed at arraignment, meaning the remaining 75% went on to further clog the system.
Assistants have to try to comply with these ridiculously onerous discovery obligations on cases that used to plead out immediately. The answer for many DA offices is to triage. They must decide which cases they will prosecute and which they will dismiss, with the resultant 82% misdemeanor dismissal rate. Is it any wonder that shoplifting (a misdemeanor) is such a growth industry in Gotham?
Felony cases fare slightly better, due in large part to the allocation of precious resources to the more serious cases and the longer six-month speedy-trial time. Even so, in 2019, 21.15% of felony cases were dismissed. In 2022, the number ballooned to 35.11%. These increased dismissals are not because the defendant is proven innocent. They are dismissals based largely on the inability of ADAs to provide the required discovery material in time.
To give one example of the problem’s magnitude: The Queens DA office reported that by the end of 2021, it had turned over 54,000 police body-worn-camera videos and 1.6 million discovery files to the defense. Body-worn-camera videos average about 30 minutes, and many are far longer. So conservatively, these assistants had to review about 20,000 hours of video and 1.6 million documents before sending them to defendants.
And that is just Queens, which has historically had only about 16% of city crime! Manhattan’s body-worn-camera unit has linked and stored more than 339,000 videos associated with investigations and cases between January 2020 and March 4, 2022.
It’s not as simple as hiring more paralegals to prep discovery. The typical misdemeanor ADA carries anywhere from 100 to 200 cases at any given time. The law requires that ADAs file the certificate of compliance with the court certifying all discovery has been completed. It’s the assigned assistant’s responsibility to make sure discovery is complete and there’s nothing in it that would endanger witnesses.
Because of the increased attrition in DAs offices, cases are transferred from departing ADAs to new ADAs, who must review all the discovery material once again. If they find anything, no matter how trivial, that wasn’t turned over, they’re required to file a new certificate, which will trigger a new defense motion to dismiss.
As the Manhattan Institute study notes, city crime is up but arrests are down. NYPD clearance rates are dipping, suggesting witnesses and victims are fearful of coming forward knowing their name will be made known to the defendant very quickly.
It is so sad. These legislators have 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 City the safest large city in America.
Their bail “reforms” released thousands of career criminals from jail, unleashing a terrible crime wave on the city, and then compounded it by making it impossible to prosecute criminals when they do get arrested. It is time for state legislators to sit down with prosecutors and responsible members of the defense bar and fix this.
Or they can just be honest and acknowledge as they campaign that they view the increased crime and dysfunction in the criminal-justice system 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 executive district attorney in the Queens DA office, where he served for 42 years.