Stay the course on criminal justice reform

Criminal defendants are presumed innocent. This, in theory, is the bedrock of our criminal justice system. But for the last half-century, New York prosecutors have turned that principle on its head by using an archaic discovery process that seemed premised on the notion that someone accused of a crime is guilty before the prosecutor has proven anything.

This process remained static for decades and kept the accused uninformed about evidence that might help them defend themselves, reduce their punishment, or set them free outright. Beginning Jan. 1, change will finally come to New York in the form of the newly passed discovery rules, Article 245 of Criminal Procedure Law.

In passing Article 245, legislators grappled head-on with the reality that the old discovery rules undermined the goals of the criminal justice system. They listened as advocates testified that requiring an accused individual to make critical decisions about how and whether to defend themselves before receiving necessary discovery results in unjust and wrongful criminal convictions. Indeed, data shows that more than 10% of the persons exonerated through DNA actually pled guilty to crimes they didn’t commit.

The new law addresses this injustice by requiring prosecutors to produce a broader category of discovery to a defendant within 15 days of a person being arraigned. This gives teeth to the notion that an accused shouldn’t be forced to labor under the cloud of a criminal accusation without knowing the government’s evidence. The law also extends the prosecutor’s discovery obligation to provide information held by all law enforcement agencies — a change that merely reflects the reality that law enforcement agencies work together.

As if to prove the latter point, law enforcement agencies have since the passage of the law engaged in a coordinated assault on these vital discovery reforms. They have attacked the process by describing the passage of discovery reform as “rushed” and criticized the law as too costly to prosecutors.

But legislators have been considering discovery reforms since the early 1990s and studied the experiences of 45 other states (including Texas) that instituted similar reforms earlier (none of which have reverted to its old system). And the real costs were paid by the thousands of defendants who suffered under the old discovery laws that eroded constitutionally mandated protections for the accused. This resulted in coerced pleas, inappropriate punishment, the conviction of innocent people and the widespread perception that the criminal justice system is fundamentally unfair.

Law enforcement’s most troubling strategy is a coordinated fear-mongering campaign claiming that providing discovery to an accused, and doing so early in the process, may result in witness intimidation or worse. Such statements rely upon the jaundiced view that criminal defendants should be presumed guilty, even though the law states precisely the opposite.

These statements are contradicted by every study conducted by states that have already instituted similar reforms, which have found no link between open discovery and increases in witness tampering or intimidation. In 2015, the New York State Bar Association’s Task Force on Discovery — a working group comprised of judges, prosecutors, defense attorneys and academics — extensively studied this very issue and concluded that there are no risks to witnesses in the vast majority of cases. Besides, the new law lets prosecutors withhold witness information upon a proper showing in those rare cases in which witness safety is actually at issue.

The possibility that an innocent person would plead guilty because discovery was not made available to them should concern everyone. Only time will tell whether these reforms will rebuild the public’s confidence in the criminal justice system and reaffirm both the letter and spirit of the presumption of innocence. It is a good start, though, and hopefully the broader law enforcement community will recognize what nearly every other state in this nation has already learned — that open and early discovery furthers, rather than undermines, the ends of justice.

Gosnell is a criminal defense attorney at Clayman & Rosenberg LLP.