Public defenders tell legislators not to compromise on discovery reform

Dozens of public defender offices said that they were excluded from closed-door discussions about possible changes to the law.

Nearly every public defender group in New York state signed onto the letter, which was shared exclusively with City & State.

Nearly every public defender group in New York state signed onto the letter, which was shared exclusively with City & State. Andrey Denisyuk, Moment, Getty Images

More than 50 public defender groups sent a letter on Wednesday to state legislators and their staff pleading with them not to accept last-minute proposals to weaken the state’s landmark discovery law reforms. The reforms, passed as part of the budget in 2019, require prosecutors to promptly provide evidence to the defense. Nearly every public defender group in New York state signed onto the letter, which was shared exclusively with City & State.

The letter argues that the 2019 reforms to the discovery process were necessary and that the closed-door discussions about potential changes to the reforms have excluded key stakeholders.

“Changes to crucial legislation should always be based on evidence and subject to public debate and scrutiny,” the letter reads. “Thus far, the process that has led us to this moment has been entirely clandestine and undemocratic. Not only has it excluded all of us and even more critically, the people directly impacted by the criminal legal system, it has also excluded elected lawmakers and those they represent.”

Gov. Kathy Hochul’s initial executive budget proposal did not include any changes to the discovery laws, just additional funding to district attorneys’ offices and law enforcement to help them comply with law’s administrative requirements. Both houses of the Legislature included similar funds in their one-house budget proposals, as well as additional money for public defenders.

Late in the budget process, a group of New York City district attorneys led by Bronx DA Darcel Clark pitched the governor on significant changes to the discovery law that would put more onus on defense attorneys to ensure prosecutors had provided all relevant evidence. The New York Times reported that the changes to the law were backed by the Partnership for New York City, a pro-business group. In response, four New York City public defender organizations released statements defending the 2019 discovery reforms. But in Albany, discussions around changing the discovery law have continued to be part of state budget negotiations. 

The process of discovery refers to the requirement for prosecutors to provide evidence they have gathered to the defense in criminal cases. Prior to the 2019 reforms, New York’s discovery laws ranked among the worst in the country, allowing prosecutors to withhold evidence from the defense until the eve of the trial. Criminal justice reform advocates said that the lax laws led to excessive pretrial detention and high rates of plea deals.

Under the current laws, prosecutors effectively have 90 days after arraignment of a misdemeanor to comply with discovery before a judge can dismiss a case under New York’s speedy trial laws. Prosecutors have called the reforms overly onerous and have cited the increased workload to comply with the law as a major contributor to high attrition rates in DA offices.

The Legislature is now considering a change to the discovery law that would give defense attorneys 35 days to challenge compliance with discovery. If they don’t, they waive the right to challenge in the future, meaning that if prosecutors failed to hand over all relevant evidence, the defense could do nothing about it. If they do, they would need to file a motion which could take months to get before a judge, delaying a trial in the meantime.

The public defenders’ letter argues that any changes to the law are premature and the Legislature should focus on providing more funding to comply with the current law before they try to change it.

“Rather than entertaining these closed-door 11th-hour policy proposals during budget negotiations, we urge you to take up the funding mandates that both houses outlined in their one house budget proposals,” the letter reads.