The state legislature could change how prosecutors share evidence with defense lawyers in criminal cases, after district attorneys griped that so-called reforms passed in 2019 are leading to more dismissals.
State Sen. Zellnor Myrie (D-Brooklyn) and Assemblyman Micha Lasher (D-Manhattan) are introducing bills that would give defense lawyers the ability to access some law-enforcement systems to directly obtain such information as police reports in the discovery process.
This would mean they wouldn’t have to go through prosecutors as they currently do, thus cutting down on the lengthy and sometime labor-intensive handing-over of evidence — a process that can jeopardize a case if it takes too long.
“The discovery reforms we passed in 2019 were meant to improve defendants’ access to evidence and other materials that could be used against them,” said Myrie, a candidate for New York City mayor, in a statement.
With the proposed tweaks in the law, “I believe we can achieve that goal while ensuring prosecutors are able to try cases on the merits, rather than seeing charges dismissed on procedural grounds,” he said.
“Our legislation aims to reduce the administrative burdens on law enforcement while continuing to protect defendants’ due process rights.”
The revised discovery process was passed alongside the state’s hotly controversial bail-law changes in 2019. It requires prosecutors to turn over evidence to a defense lawyer within 20 days of a defendant’s arraignment if they’re being held in custody and 35 days if they’re released.
When a growing number of cases started being dismissed because of the time rules, the 2019 changes were amended in 2022 to try and make it harder to dismiss a case because a prosecutor didn’t comply with discovery.
But Myrie points out that case dismissals are still higher than before the statutes went into effect.
Criminal case dismissals in New York City have gone up from 41% before discovery reform to 62% today, according to the state senator.
Sources suggested that the Myrie-Lasher legislation may be followed up with a proposal backed by prosecutors to adjust the timeframe and types of evidence that would be affected under the law.
Gov. Kathy Hochul said she wants DAs to make a legislative push for changes after an effort last year fell apart.
“Discovery is something that I’m looking for the district attorneys to put forth a plan. Last year, they had a plan, and then they did not have a plan, and it broke down,” she said. “I want to know what’s really going to make a difference.
“Come up with a plan and we’ll take a look at it very seriously going forward,” she added.
Discovery laws are front of mind for New York City Mayor Eric Adams, who brought up the policies in a meeting with the governor in Albany last month, sources told The Post.
Staten Island District Attorney Michael McMahon said the current framework “leaves victims without justice” because of an “avalanche” of evidence that needs to be turned over in “unmanageable” time frames.
“Courts are dismissing cases on technicalities due to an obscure document not being obtained or exchanged,” McMahon, who is also president of the District Attorneys Association of the State of New York, told The Post in a statement.
“While mostly unintended, discovery reform’s consequences can be seen in the dramatic increase in misdemeanor crimes throughout the City.
“It must be fixed this legislative session, and District Attorneys are working with the governor and the legislative leadership to repair the law while maintaining its intent of full, fair, and prompt disclosure,” McMahon said.
Suffolk County DA Ray Tierney said he’d love to see the 2019 change scrapped entirely
“In a perfect world, that’s what I would like. Absent that I would like a few common-sense changes to the law,” Tierney told The Post.
He said some tweaks, like possibly excluding the discovery provisions from similar rules around speedy trials, could take some unnecessary burdens off prosecutors.
Lasher, a former policy aide with close ties to Hochul’s administration, said he welcomes other proposals, too.
“I expect that there will be broader discussion about discovery reform, and there should be,” Lasher said.
“Speaking for myself, I welcome proposals from the district attorneys and believe that they merit a serious conversation,” he added.
Criminal justice reform groups like the Legal Aid Society are so far supportive of Myrie and Lasher’s bill, but are cautious about broader rollbacks of the 2019 laws.
“These pragmatic approaches are the right path forward. Gutting a reform that turned the page on an era when limited discovery fueled decades of wrongful convictions, mass incarceration, and case delays will not enhance public safety across New York State,” a spokesperson for Legal Aid wrote in a statement.
Any fight over the 2019 laws is likely to be highly contentious in the Democratic-controlled legislature, where lefty lawmakers held up Hochul’s efforts to try and change part of the policies in 2022.
–Additional reporting by Craig McCarthy
