Some Minor Tweaks
Explaining the Imminent Discovery Reform Rollbacks
Programming Note: Episode four of my podcast Primary School will come out later today. It’s an interview with New York statehouse reporter Jeongyoon Han, and we talk at length about discovery reform and its role in the ongoing budget negotiations. In the meantime, check out episodes one, two, and three here.
“The discovery law in particular needs to be tweaked” NYPD Commissioner Jessica Tisch said last month in a press conference on the city’s priorities in the state budget. Tisch, the billionaire scion, former sanitation chief, and Dalton School alum, has been on the job four months, and is already a media darling, with glowing profiles and speculation about her future prospects as a mayoral candidate. The extent of the acclaim is bewildering to me, given the lack of meaningful policy accomplishments or changes (in fairness it’s only been four months). I attribute most of this to her pedigree (A billionaire Harvard graduate data nerd running a police department! How fun!) and the low bar set by her Adams administration predecessors (Tisch, unlike Edward Caban, Jeffrey Maddrey, or Tom Donlon, is not the subject of a federal criminal investigation). But some of it is due to the political savvy she demonstrated in this press conference.
“I just also wanna be clear that the reforms that we are pushing, the language changes that we are pushing by no means retreat from the spirit of the 2019 reforms.” she continued. “We do not believe that people should be confronted with evidence at the 11th hour. We believe that defendants should see all of the evidence against them. What we are looking for is to close some loopholes that render the criminal justice system in New York City or in New York State, a revolving door for recidivists.”
This is the party line on this issue that wide swaths of New York’s ruling coalition have landed on, down to the use of the word “tweak,” which echoes the five city DA’s last month in an Albany Times Union op-ed of “commonsense proposed tweaks” to make the discovery laws more “efficient and just,” The 2019 discovery reform was a good thing, they argue, and we still hold dear the progressive values that underpin it, but it needs minor, boring adjustments and close some loopholes to make everything run more smoothly.
Governor Kathy Hochul, a close ally and patron of Tisch’s, is fully onboard with this narrative, and has insisted that the state budget include discovery reform rollbacks, a sticking point with Democrat legislators that is partially responsible for the budget coming in eighteen days late and counting. So are mayoral hopefuls Eric Adams, Andrew Cuomo, and Whitney Tilson, the last of whom used strikingly similar language to Tisch, calling for the discovery laws to be “tightened a bit” so the “pendulum could swing back towards the middle.”
This narrative is popular, and affirms the reactionary moderate worldview of many New York City Democrat voters. Progressive ideals of justice and due process are important to these voters, they insist. Everyone deserves a fair trial and a robust defense, no matter where they live, what they look like, or what they are accused of. But we also have to do something about all this crime, the crazy radical leftists of the Black Lives Matter movement that our children were yapping about during the pandemic probably went a little too far, and we need to find a nice efficient solution that balances justice with efficiency and safety.
None of this would be objectionable if it were true, but even a cursory examination of the original 2019 reforms, and the “tweaks” Hochul and the DAs have proposed reveals a very different set of facts. In reality, they plan to gut the reforms entirely, imperiling the due process rights of any New Yorker unfortunate enough to be arrested for anything.
II.
Discovery is the process by which the prosecutors reveal their evidence to defendants, fulfilling their core constitutional right to be informed of the strength of the evidence against them throughout the pretrial process. Before 2019, prosecutors in New York routinely denied defendants this right by abusing the process in at least three ways:
Hiding Evidence: Prosecutors could simply not turn over evidence for months pre-trial. In that time the defendant sits in Rikers Island Jail, experiencing unfathomable horrors, getting offered plea deals that involve years of prison time, with no idea how strong the prosecution’s case is. Regardless of whether the defendant thinks they are guilty, if there is enough evidence that there’s even a chance of a conviction, the trial penalty (people who go to trial and lose get dramatically harsher sentences) in New York is so severe that a guilty plea with a reduced sentence is tempting. However, a defendant who knows that the prosecution has no evidence might not be intimidated by this tactic. The longer the prosecutors can hide the evidence from the defense, the more time they have to coerce them into a plea.
Maliciously Timed Discovery: If the coercive discovery delay tactics in step one didn’t get the client to plead guilty, prosecutors would wait until the last possible moment before dumping all the discovery evidence to the defense right before the trial. From a 2023 New York Focus article: “As you’re about to start picking a jury, the [prosecutor] would hand you a stack of papers — hundreds of pages, possibly more — and drop it on the table,” said Bret Taylor, treasurer of the Association of Legal Aid Attorneys, a New York City-based public defender union. “And you would just have to start frantically reading through it before the trial began.” Defense would have no way to adequately prepare, or find exculpatory gaps in the evidence, significantly raising the probability of a conviction, regardless, again, of the strength of the underlying evidence.
Coercion by Infinite Delay: If trial approached and the prosecution was still unable to produce key evidence, the defense could protest to the judge that discovery rights had been violated. The judge would often agree, but would choose to remedy the issue by delaying the trial, pausing the “trial clock.” Trials are supposed to occur within 180 days of arraignment, but judges can pause the clock and declare that certain days do not count. On one hand, this would nominally be a win for the defense: the trial would be delayed until both sides had time to look at all the evidence, rather than a maliciously-timed discovery trial outlined above. But these delays could stretch out for months or even years, and this could also be leveraged for the prosecution. With every additional delay, the defendant would spend weeks more in Rikers, and the pressure to plea would continue to grow. This is how we got the story of Kalief Browder, a sixteen-year-old Black kid from the Bronx, accused of stealing a backpack and punching its owner, sitting in Rikers for three years pre-trial because he could not afford the $3000 bail, and because the prosecution continually could not produce evidence for the defense in discovery, evidence that they would later admit did not exist. They dismissed his case and released him, but at that point, Browder had been severely traumatized by his three years in Rikers, and took his own life soon after. Browder’s story was remarkable not because the coercive discovery manipulation tactics the prosecution used were rare, but because he did not succumb to them and accept their plea deal. He insisted that he was innocent, he did not want a felony conviction on his permanent record, and the plea would have meant another year in prison. But faced with another monthslong delay in Rikers while the case sits in indefinite limbo, and the threat of a decades-long sentence if convicted at trial, most defendants take that plea.
Prosecutors in New York City use these tactics not because they are ghouls who relish denying the rights of poor Black people and making them suffer (mostly), but because they earnestly believe that every single defendant is guilty, and an imminent threat to their community. It is their job to think this.
There are two models of the American criminal justice system in popular thought. There is the one that you learn about in middle school civics class, or To Kill A Mockingbird or Twelve Angry Men, where a defendant’s guilt is determined by a jury of peers at a trial, after careful examination and interpretative debate over the objective evidence, with an assumption that the defendant is innocent until they are proven guilty beyond a reasonable doubt. Then, there is the model popularized in Law and Order, and most other police procedurals, where the police definitively establish the defendant’s guilt through clever detective work, and then use whatever means necessary to get a conviction. Much of the drama in the “Order” section of an episode comes from this tension: the audience knows that the defendant is guilty, but they might get off anyway. We watch as their evil defense attorney pokes holes in the case, cruelly cross-examines the heroic witnesses, and finds procedural technicalities to get the case dismissed. Due process is presented not as an important “inalienable” human right, but as burdensome, bureaucratic nonsense full of illogical loopholes, which makes it way too hard for our protagonists to lock up the people we know to be dangerous criminals.
Our current system much more closely resembles the latter model. 99 percent of misdemeanor charges and 94 percent of felony charges that are resolved (i.e. not dismissed) end in a guilty plea, not a trial. About 150,000 cases were disposed of in 2023 in the five boroughs. About 40% of them ended in a pretrial dismissal. Sixty-eight ended in an acquittal at trial. The assumption that underlies every process and decision from every relevant stakeholder is that once a prosecutor has decided to pursue a case, the defendant is definitely guilty. They may get off anyway because the case is not an urgent priority and the courts and prosecutors (and public defenders) are under-resourced, because the evidence isn’t strong enough, because the cops messed something up and now key evidence is inadmissible, or because the bar of proof beyond a reasonable doubt is just too difficult. But to a prosecutor (and to most judges, many of whom used to be prosecutors), a defendant is guilty, and any tactic that results in a plea deal is not only justified, and essential to keeping the wheels of the system turning, but is actually a form of leniency. That defendant would have gotten a much harsher sentence at trial, so the coercive plea tactics shaved years off of their prison time.
This week, Trump Administration officials are trumpeting their evidence that Kilmar Abrego Garcia, the Maryland undocumented immigrant deported in an “administrative error” to a gulag in El Salvador, was an active member of the gang MS-13. The evidence is weak: a confidential informant accused him of being in a section of the gang in New York City, where Garcia has never been, he was arrested in a Home Depot parking lot for “loitering” with two accused gang members, he was photographed wearing a Chicago Bulls hat, apparently the “hat of choice” of MS-13. “Everyone knows that if you’re wearing a Chicago Bulls hat, that means you’re MS-13,” said Fox News commentator Jesse Watters. “You’re from Maryland, not Chicago… The Bulls lost 60 games in 2019, so why the hat?” In a court of law as popularly imagined, this obviously doesn’t stand up. The Bulls are one of the most popular sports brands on the planet, millions of people root for bad sports teams, the hat does not prove anything close to beyond a reasonable doubt.
But in an American prosecutor’s office, even with the most “progressive,” “reform-oriented” District Attorney (which Manhattan DA Alvin Bragg is not), this is plenty. A witness makes a confusing but definitive accusation, a few pieces of circumstantial evidence here and there, great, that’s our guy, let’s get him to plead as fast as possible. A prosecutor will use whatever tactics they are allowed to use to get that guilty plea. The only checks they face are clear rules of engagement, consistently enforced by judges. You can understand why they might want to get rid of those.
III.
In 2019, after decades of activism and agitation from public defenders and other advocates from the city’s overpoliced, over-prosecuted communities, the state legislature partially reformed its discovery laws to make the three tactics outlined above a bit more costly for prosecutors. For the first time, the laws prescribed meaningful penalties for prosecutors that did not comply with discovery. If a judge ruled that the defense had not received all of the evidence the prosecutors had, they could not “pause the clock,” and if the prosecutors could not produce the evidence in time, the “clock would run out,” and the case would be dismissed in accordance with speedy trial laws.
Prosecutors hate this. Sharing all the evidence is too difficult and time-consuming, they complain. Cases are being dismissed on “technicalities.” Maybe, although the cases are sealed when they’re dismissed, so there’s no way to know exactly how egregious the discovery violations that result in dismissals are. And the one piece of evidence we have besides unsourced anecdotes from prosecutors, a report from the criminal legal system watchdog organization Scrutinize, found that in their review of 300 unsealed dismissal records since 2022, that “judges are dismissing cases because prosecutors regularly fail to meet basic evidentiary obligations, sometimes ignoring discovery requests for months or choosing to withhold evidence. They are not dismissed due to trivial errors or defense tactics.”
The proposed tweaks severely limit the judge’s ability to dismiss the cases for discovery violations. This was the status quo before 2019, which led to the rules of engagement described above. Prosecutors would only have to reveal “relevant” information to defense pre-trial, and would have wide latitude to determine what information is and is not relevant. Then, judges could consider whether the lack of evidence shared would really “prejudice,” or severely impair the defense, more latitude for the prosecution. And evidence in police custody that had not yet been transferred to the prosecutors would be considered exempt, so if the NYPD took months to hand over evidence, as they regularly do, the trial clock could be paused for that month. State Senator and mayoral hopeful Zellnor Myrie has proposed an easy solution to the latter problem: give prosecutors login access to the NYPD database so that they can get that evidence immediately. Prosecutors are conspicuously silent on this proposal to quickly and easily solve what must be an infuriating technical issue, one they constantly complain about. Because despite these complaints, they’d prefer a system where basic evidence delivery from the police to the prosecutors is inconsistent and could take months. Those are months the defendant is sitting in Rikers, growing more desperate every day, ever increasing the odds he will crack and plead guilty.
If you are a moderate, sensible Democrat who believes in due process and the rule of law, but is concerned about rising crime and about progressive lawmakers “going too far,” it is comfortable to believe that the powers that be are finding a clever and elegant compromise that balances competing interests efficiently. It’s pleasant to think that Hochul, Tisch, and the five borough DAs all earnestly care about criminal justice reform and civil rights, and are carefully considering them as they gently “tweak” the 2019 bill. It might even be a winning message for mayor.
But it’s a complete fiction. These people want to gut basic due process for New Yorkers accused of crimes. They don’t want defendants to see the evidence against them so that they are more likely to plead guilty quickly. If you support this, you cannot object to the treatment of Kilmar Abrego Garcia, the blatant disregard for due process and the principle of “innocent until proven guilty” shown by the Trump Administration. Donald Trump doesn’t believe accused criminals should have basic human rights. If New Yorkers elect Andrew Cuomo, or another candidate who supports these discovery rollbacks, we don’t either.