DA faces trial by pandemic
In his first year as county district attorney, David Clegg sees criminal justice system upended by coronavirus
KINGSTON, N.Y. » Ulster County District Attorney David Clegg knew that one of the most pressing issues he would have to deal with as the county’s chief prosecutor would be meeting the demands of the new state criminal justice reform laws.
Indeed, shortly after being sworn into office in January 2020, Clegg said implementing the new law governing how quickly prosecutors must give defense attorneys evidence in a case — a process known as “discovery” — was the most pressing issue facing his office.
“Discovery is a big issue right now,” he said at the time. “That really is a big issue for the office. There’s a backlog
of cases right now.”
Clegg, the first Democrat elected district attorney in Ulster County in recent history, had supported the reforms. Little did he know that only a few weeks after he took office that New York state and much of the country would be in the grips of a pandemic that would upend everyday life and all but bring the criminal justice system to a halt.
Last March, New York Gov. Andrew Cuomo issued a series of executive orders that shuttered most businesses and a number of government operations, including the court system.
The move prohibited in-person court proceedings and halted trials and grand jury proceedings. Although the state has given counties permission to resume some grand jury proceedings, Clegg said the amount of time a grand
jury can be in session has been reduced from 17 hours a week to mere three and a half hours each week. By statute, grand juries have 23 members, while criminal trial juries have 12.
“There have been no jury trials since March,” Clegg said. “Crimes are being committed, arrests are being made, pleas are being taken, but we are not able to move many of the cases forward without doing jury trials.”
Compounding the difficulties, he said, was a hiring freeze that left his office until recently with three fewer assistant district attorneys.
Last March, Ulster County Executive Pat Ryan instituted a hiring freeze as part of an effort to buffer the county from revenue losses due to the shutdown.
As a result, Clegg said, his office was unable until recently to hire new prosecutors to fill those vacancies. Still unfilled, he said, are two support staff positions, although the county
Legislature, as part of the 2021 budget, approved funding for those positions.
Until the new prosecutors were hired, Clegg said, other prosecutors had to pick up the additional work. At one point, Clegg said, he was handing local justice court cases because he was unwilling to add that burden to what he said was his already overworked staff.
“We went through everybody’s caseload to compare, and basically it was twice the caseload (in December 2020) as it was in 2019,” he said. “We have one particular assistant district attorney whose caseload is up to 152 cases.”
Clegg said the normal felony caseload for an assistant district attorney is between 30 and 40 cases.
Among the pending cases, Clegg said are 10 homicide cases, including two suspects recently indicted in the shooting death of a 12-year-old girl in Midtown Kingston. Another six homicides, he said, remain under investigation.
“I can’t tell you how hard the people in this office have been working,” Clegg said. “We are stretched beyond where we should be stretched.
“It’s the volume of cases along with the additional work that discovery requires,” he said. “The volume of work has increased because the office was shut down and slowed down.”
Clegg said that without the threat of going to trial, defense lawyers are less willing to accept plea offers on behalf of their clients — who in many cases are free without bail as a result of bail reform laws — meaning prosecutors are unable to settle those cases and clear them from their caseload.
“Without the jury trial option, there’s not as much of an incentive to resolve cases — people are waiting it out, I think,” he said. “There are cases being resolved; there are pleas being taken. It’s just not enough to unclog the backlog.”
Clegg said he didn’t know how many cases were currently pending in the District Attorney’s Office, but said that in 2019, the office handled roughly 1,000 felony cases. The Ulster Regional Gang Enforcement Narcotics Team
(URGENT) has reported an increase in drug trafficking arrests in 2020 over the previous year, and he said that given the strains of the pandemic, other crimes, including those involving domestic violence, have also increased.