The Broken Windows in the Courtroom

While Bill Bratton’s eyes are searching for broken windows in our homes rather than his, there remain other places, as yet unmentioned, where the windows are broken, shattered in fact, that need some attention.  Like the courtrooms of New York City’s criminal courthouses.

Much has been written about the concealment of Brady material, depriving the defense of critical information to show that a defendant is innocent or the cop on the witness stand is a lying sack of shit. But that comes after the fact, after the defense “discovers” that some mutt prosecutor buried the exculpatory material in the expectation that nobody would ever find it and throw it back in his face.  We all get outraged.

Yet, there’s another level that gets essentially no play, no discussion, and its window is just as badly broken. The broken window is basic discovery.  At its best, it’s so inherently limited in criminal cases in New York as to be laughable.  Still, it’s all we have, and the defense desperately needs the crumbs provided by law or we go in completely blind.

In most instances, state prosecutors have taken to giving “voluntary disclosure forms” with fill-in-the-blanks that correspond to the criteria provided by Criminal Procedure Law §240.20, which may (or may not) be relatively accurate and complete.  Judges couldn’t care less. You got the form?  Move on.

Therein lies the irony.  A defendant is prosecuted for allegedly violating a law, while the prosecution ignores the laws under which they are purportedly constrained to operate with impunity.  Why is that?  Why are the laws allegedly violated by defendant so very important, so very serious, that their violation is worthy of imprisonment, while no one gives a hoot about whether the prosecution adheres to the law?

It’s not that hard for a prosecutor to abide by the law.  It’s all written out in black and white, and provides a fairly clear path about how they do their jobs, from acquiring jurisdiction over the person to providing discovery.  And yet, in some way, whether large or small, it’s almost always violated.

The defense commonly moves for the court to order the prosecution to adhere to its statutory responsibilities for discovery.  The judge, in return, grants the defense motion, “to the extent the prosecution has already complied.”  And that’s where is all dies, quietly and without the slightest glimmer of concern.

At the very worst, the most egregious cases of discovery abuse, the judge will order a mulligan: So what if the prosecution deliberately concealed discovery, withheld the crumbs they are required by law to disclose.  The sanction?  Disclose it.  Do what you were supposed to do before you got caught dirty.

But judge, what possible incentive is there for a prosecutor to comply with the law when the only penalty for its deliberate concealment is to make them do what they refused to do in the first place?

You got your discovery, counselor. Move on.

Granted, most judges chuckle at the formalism.  Most prosecutors laugh and laugh at the lawyer fighting for the discovery needed to prepare for trial. That’s because no one believes a case is going to trial, and when the defendants are just going to cop out anyway, who really gives a damn?  Certainly the judge isn’t going out on a limb to make enemies with the District Attorney over some discovery that will end up in a dead file after the plea is negotiated.

Why bother?

Bill Bratton noted, in regard to the petty offense claimed in calming community anger over the death of Eric Garner the other day that while Garner’s purported selling of untaxed cigarettes, which makes selling “loosies” almost sound serious,

“But a violation of the law is a violation of the law.”

Fair enough.  So let’s stay on that path, even when it comes to prosecutors.  Their violation of the law is a violation of the law too, petty though it may be in the eyes of judges.  Sure, routine discovery violations don’t necessarily involve smoking gun Brady material of the sort that makes headlines, but the absence of discovery makes preparation for trial impossible.

That nobody seems to give a damn what games prosecutors play in the concealment of basic discovery is an outrage that remains under the radar.  Prosecutors don’t care, because there is no penalty for playing the game.  There could be. There should be. But there isn’t, because judges just don’t give a damn.

So there are laws that are so serious that they’re worthy of putting a human being in prison, and laws that are so trivial that they can be violated by prosecutors with impunity.  And there are judges who are such paragons of virtue that they will express their moral outrage for the former while laughing off the latter, provided they’re not getting annoyed with defense counsel for wasting their time complaining about prosecutorial misconduct and concealment.

Just move on. Prosecutors get to pick and choose which laws matter, and the ones that apply to us are critical while the ones that apply to them are just a joke.  So ordered, and the window remains perpetually broken.

6 comments on “The Broken Windows in the Courtroom

  1. ExCop-LawStudent

    This doesn’t deal with NY courts nor Brady, but a Travis County (Austin, TX) felony prosecutor was recently fired for a Batson violation.

    It’s a step in the right direction, if the termination was actually for the violation and not a pretext.

    1. SHG Post author

      The subject of this post is one that, I suspect, mostly hits home with practicing CDLs, and may appear somewhat elusive to others. The Batson violation you note was a reflection of a racist approach to voir dire, which (assuming it was not a pretext) may touch a particular nerve. Brady violations also tend to arise in the context of a wrongful conviction obtained because of an outrageous concealment. But this post is about an issue that is pathetically mundane: Basic, minimal, petty, ordinary, everyday discovery.

      No big issues. No outrages. No smoking guns. Just the concealment of banal, pedestrian discovery. A broken window.

      1. ExCop-LawStudent

        I guess I don’t understand the issue. Where I am working now, and where I worked as an officer, both DAs had open file policies, where the CDL could come in and look at anything in the file (other than attorney work-product, etc). With the Michael Morton Act, many DAs are putting the files in an online portal now, where the CDL can register and view the DAs files.

        Some of the smaller DAs are objecting to it (the law just went into effect) as increasing their costs.

        1. SHG Post author

          To put the problem into your context, imagine if there was “open file” discovery, but the file that was open and shown to the defense failed to contain a portion of the file. The prosecutor just didn’t show it. Then, before trial, the concealed portion of the file simply appeared. It contained additional evidence, reports, warrants, whatever. It wasn’t exculpatory, but consistent with the prosecutor’s case. It just was never disclosed.

          So the defense lawyer screams about it, how dare they violate the open file discovery requirement, and the judge shrugs, says, “big deal, you have it now, don’t bother me.” No sanctions. No punishment. No suppression. Maybe some extra time to read and investigate, but that doesn’t change that you did all that investigation (at the defendant’s expense) relying on what was disclosed, which is now shown to be wasted because of what was concealed, and can’t be redone because of time and money constraints. But no one cares that the law requires the prosecution to disclose or the prejudice suffered.

          And that’s that.

  2. Rick Horowitz

    Windy really gave us something to think about, didn’t he?

    I wonder if pointing out the Broken Windows analogy, and comparing crimes of prosecutors to crimes of our clients, will help us in briefs?

    Probably not, but I think I’ll try when it seems to fit the situation, anyway.

  3. lawrence kaplan

    Concealment’s the name of the game
    Which the DA’s play to their shame
    But if they lie and they lie
    While we just lie down and die
    Then we must bear part of the blame

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