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Restoring Balance: Fairness for Victims, Defendants, and Public Safety in Discovery Reform

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To the Editor:

What do we want from our criminal justice system? Fairness. To defendants, of course, but also fairness to victims and to our residents who deserve to feel safe. Fairness is why I support the heart of the 2019 discovery reforms. I support a system that protects defendants’ access to the information that they need to defend themselves. But the pendulum has swung too far. Fairness to victims and to public safety has been left behind. Which is why I also support Governor Hochul’s proposed amendments to the discovery law.

Under our current system, “discovery” means that prosecutors must automatically produce, within very short time frames, all information that they have that is “related” to a case; and all police records, whether they have the police records or not. Prosecutors must then certify that they have provided all discovery and made diligent efforts to do so.

Prosecutors have adapted to that burden. Defendants have access to nearly every piece of documentation related to a case.

So what’s the problem? The problem is that our system now encourages obstruction and delay.

Defendants have a right to a speedy trial, within six months for felonies, within two or three months for misdemeanors. To meet that clock, prosecutors must state “ready for trial” after they have provided discovery.

Even though the law says defense attorneys have to challenge discovery compliance as soon as “practicable,” in practice, they wait until speedy trial time is up and then make a motion to dismiss the case, in many cases waiting months. The defendant can then claim that some item of discovery is missing.

If the court agrees, it can say that the People were never ready for trial to begin with and dismiss the case on speedy trial grounds. The missing item could be a piece of paper that the prosecutor never knew existed or believed in good faith they did not have to find and produce.

This common practice of lying in wait hangs over every case and puts pressure on prosecutors to settle cases for far lesser charges, because they do not know until it is too late what the defendant might say they haven’t provided. You can’t blame the defense lawyers – that is what the law encourages them to do.

No one, except defendants, wants cases dismissed based on gamesmanship and technicalities. And we all should be concerned about how long cases take to resolve. Instead of speeding up the process, dismissal motions under the discovery law have slowed it down.

This must change. Luckily, Governor Hochul has proposed some tweaks that are fair to everyone and supported by District Attorneys all over the state, across the political spectrum. This is not about politics. It is about justice.

First, instead of waiting and then seeking a speedy trial dismissal, defense counsel will generally have to challenge discovery compliance within 35 days, giving the People timely notice of what they believe is missing.

Second, the standard for what prosecutors must provide would change from “related” to “relevant,” reducing the “gotcha” motions for loosely related items, and using a standard courts and lawyers already understand.

Third, and significantly, cases would not be dismissed unless no other remedy would cure any prejudice to the defendant. Reason would prevail. So, if a court decided that a prosecutor had failed to disclose an unfounded complaint against an officer from a different case, the court might grant an adjournment so the defendant could research it. On the other hand, if the prosecutor failed to turn over a significant witness statement, the court might well dismiss the case. That would make prejudice, not technicalities, the standard for dismissal. Which is as it should be, with justice for victims on the line.

Opponents of reform to the current system have made numerous misleading claims about the proposed changes. The changes would not return us to the old ways. Prosecutors will still be required to open their entire casefiles to defendants. So-called “trial by ambush” is dead and gone and is not coming back. What must come back is fairness for all of us.

I have spent my career as a public servant, working for the courts, representing indigent defendants for Mental Hygiene Legal Service, serving as an Assistant Attorney General and Solicitor General, and now as District Attorney. I will continue to fight for a fair system for everyone because without fairness we do not have justice. I therefore urge the Legislature to pass these modest reforms.

Chris Liberati-Conant

District Attorney

Columbia County

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