Justice is proverbially blind, but advocates fear defendants in New York will once again be in the dark with evidence-sharing until the last minute. Recent amendments proposed by Gov. Kathy Hochul toward discovery reform sparked the formation of an Alliance to Protect Kalief’s Law last month. A website for the campaign launched earlier this week.
The coalition members say Hochul’s recent proposals would remove meaningful pressure on prosecutors to fork over all evidence indiscriminately and foster an end to open-file discovery in the state. Meanwhile, the governor and allied prosecutors say the changes to discovery law intend to close loopholes and prevent dismissals before a defendant’s guilt or innocence is in question.
Named after Kalief Browder, the Black New Yorker who took his life after three years on Rikers Island awaiting trial for a stolen backpack, the New York State provisions passed in 2019 repealed old evidence-sharing laws and mandated prosecutors share materials in a timely manner without a defense attorney having to request them.
Discovery, or evidence-sharing, is a formal legal process where parties in a case exchange information for presentation at trial. Those materials usually provide defendants a clearer idea about whether to take a plea deal (usually for less severe penalties) or fight the case at trial.
“The reforms enacted in 2020 ensure that accused New Yorkers have access to all evidence, promoting transparency, preventing wrongful convictions, and combating mass incarceration,” said Kalief’s brother Akeem Browder in a statement. “These laws are about leveling the playing field and upholding the fundamental right to due process. Rolling back these protections would inevitably lead to more New Yorkers suffering the same fate as my brother.”
While a litany of failures in the criminal justice system led to Browder’s death at age 22, the lack of discovery prevented any opportunity to get the case dismissed before his trial, which he did not receive for three years.
A “blindfold” era predates Kalief’s Law, regarded by many criminal justice advocates as a time when New York state’s discovery laws were among the four worst in the country — back then, witness statements and police reports could be withheld by prosecutors from defendants until the day of trial.
Consequently, New Yorkers could be pressured to plead guilty to avoid more prison time and return to their lives. Pleas under the “Blindfold Law” meant no access to discovery since the cases never went to trial. Advocates presume at least some defendants were innocent despite pleading guilty.
“Under the way the discovery law was before, there’s no question that [it] lends itself to wrongful convictions, because evidence is not going to be turned over in time,” said attorney Jeffrey Deskovic. “It’s going to be a document dump at the end.”
Exonerees and defense lawyers largely make up the Alliance to Protect Kalief’s Law, including Deskovic, who is both. He recounts receiving more access to evidence when suing over his wrongful conviction than the original criminal trial that led to his false imprisonment. The state now boasts arguably the most transparent discovery laws in the country.
While proponents tout Kalief’s Law as an unfettered success, prosecutors are less enthusiastic. So far, most of the efforts claim to target loopholes that are bogging down the discovery process. The District Attorneys Association of the State of New York recently voted to support the governor’s proposal to tweak discovery reforms “intended to end procedural delays and prevent automatic dismissals of cases.” An op-ed recently penned by the city’s five district attorneys maintained the proposal is not a rollback or a return to the “Blindfold Law.”
Hochul’s reasoning suggests that the current discovery reform is partially to blame for recidivism and delayed justice for victims. In addition, Manhattan District Attorney Alvin Bragg pointed to the dismissal of a domestic violence case due to a prosecutor turning in a piece of photographic evidence late. His office also told the AmNews that other gender-based charges were thrown out due to submitting evidence late, although the files are sealed following dismissal.
“My common-sense proposal to streamline New York’s discovery laws will close fatal loopholes that have delayed trials and led to cases being thrown out on minor technicalities, which will ultimately help crack down on recidivism and provide justice for victims,” said Hochul. “I am honored to have the full support of the District Attorneys Association of the State of New York as we go about making these changes.”
Discovery reform proponents countered such narratives by scouring the entire New York State Division of Criminal Justice Services dataset to find no rise in dismissals of indicted felonies statewide. The Manhattan D.A. attributes such data to pouring more resources toward prosecuting murders and rapes which impacts their ability to collect evidence for other crimes. Advocates contend the numbers are not reflected statewide, pointing to local factors like local prosecutors lacking direct access to NYPD evidence-sharing databases. To be clear, crimes like forcible touching and domestic violence can be charged as misdemeanors.
Amanda Jack, policy director for Legal Aid Society’s criminal defense practice, said proponents of Kalief’s Law previously rebuffed “quiet” attempts by prosecutors to dial back discovery reform but that she heard further rumblings late last year.
“We decided in early January that if this was really coming, and in a very public way, we wanted to band together publicly as well and form an alliance of the ad hoc group that has been meeting for years to monitor rollbacks, so we launched the Alliance to Protect Kalief’s Law, and did so with the blessing of Akeem Browder,” said Jack.
As “tough-on-crime” narratives reenter the New York City public safety discourse, criminal justice reformers are on high alert. Bail reform laws enacted concurrently with Kalief’s Law were also blamed for crime and recidivism, even as research overwhelmingly refuted such claims. Yet Hochul still successfully pushed for rollbacks. Browder’s time in jail started after his family could not afford to post $3,000 in bail when he was just 16 years old.
A Manhattan D.A. spokesperson maintains New York state’s discovery laws would remain the most transparent and open in the country despite Hochul’s amendments. The office says prosecutors would still need to seek the same 21 evidence categories in order to certify compliance and dismissal would still serve as a check on them.
According to the spokesperson, judges would still dismiss cases due to prejudicial non-disclosure, or withheld evidence harming the defendant’s case. However, the governor’s proposal would provide other remedies for the defense if non-prejudicial non-disclosure is withheld, rather than a dismissal.
“Thousands of cases are now dismissed annually, for reasons that have nothing to do with fairness or justice,” said the spokesperson in a written statement. “During this legislative session, the Governor and lawmakers can make common sense adjustments to the statute to protect victims of crime, while safeguarding the rights of the accused and maintaining New York’s status as the state with the most open and transparent discovery laws in the nation.”
But Jack fears the ability to determine non-prejudicial non-disclosure would allow prosecutors to gate-keep what is considered relevant in a case. She sees pressure on the prosecutors to produce all evidence as the most efficient option for defendants, as most individuals convicted do not make trial.
“Some of the frustration here is that we still live in a state where 98% of cases end in pleas,” said Jack. “As a defense attorney, if you give my client the ability to review all of the evidence against them or that the government has amounted against them to support their allegations, we have an [easier] time deciding if we should plead or go to trial.”
There is also contention on whether the discovery reforms actually set the standard too high for prosecutors. Courts have refused to throw out cases when an item is missing if the prosecutors demonstrate due diligence.
Advocates like Jack believe the only tweak needed to Kalief’s Law stems from the lack of direct access to NYPD databases for the city’s five district attorneys when procuring evidence in a case. Instead, the prosecutors need to request the evidence, ironically facing delays themselves and affecting their ability to meet the new discovery laws. Jack said patterns of rising misdemeanor dismissals found in the city are absent throughout the state, which points to local factors like the NYPD’s turnaround time for handing over evidence.
In New York City, the overall dismissal rate rose by 48% in 2023 compared to pre-reform, says the Manhattan D.A.
A bill introduced in Albany by State Senator Zellnor Myrie and Assemblymember Micah Lasher would change that and is supported by several local prosecutors including Bragg. If it passes, the NYPD would be mandated to provide New York City district attorney offices with log-in credentials for their database to make “it easier for prosecutors to comply with New York’s discovery laws.”
In a Daily News op-ed soft-launching the bill, the sponsors expect that “New York’s district attorneys will seek additional changes to the discovery law this year.”
Tandy Lau is a Report for America corps member who writes about public safety for the Amsterdam News. Your donation to match our RFA grant helps keep him writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://bit.ly/amnews1.