There was no question that New York’s speedy trial law, Criminal Procedure Law § 30.30, was a wreck. It had long been gamed by prosecutors, with the willing acquiescence of judges who shrugged and said “meh, what do you want me to do?” This was no secret, and was publicly laid bare in a New Yorker article by Jennifer Gonnerman.
And people “oohed” and “aahed,” and nothing was done about it.
State Senator Daniel Squadron and Assemblymember Jeffrion Aubry announced legislation (S.5988) to fix New York State’s “speedy trial” law following the recent death of Kalief Browder, who spent three years in pre-trial detention at Riker’s Island. Kalief’s Law closes a legal loophole that forces defendants to endure significant delays before trial, even while in jail, despite the time limits established by law. This change will limit delays by prosecutors and the court, so that defendants are afforded their constitutional right to a speedy trial.
Certainly, the law needed fixing. It needed fixing before Browder’s story went public. It needed fixing afterward. It needs fixing still. Now that Kalief is dead, he gets a law. Why is that what it takes for a problematic law to get a little attention?
But a law named after a dead young man, and addressing a long-standing problem that no one cared about before, except those of us who actually dealt with the consequences, doesn’t make it a good law. If this is the time to fix statutory speedy trial, then it needs to be fixed right. Who knows how long it will be before another sympathetic young man dies so it will be noticed again?
In their press release, Squadron and Aubry offer this cure:
Under current statute, prosecutors are allowed to declare “readiness” for trial simply by stating they are ready. At the very next court date, the People can declare themselves “not ready” and ask for an adjournment. Yet, even though it may take multiple weeks to get a court date, the prosecution is only clocked for the adjournment period it requested. Kalief’s Law will reduce undue delay by requiring the court to approve exclusions to the speedy trial clock. The bill will also ensure that a statement of “readiness” by the People is real by tying it to discovery, requiring the People to present evidence that they are in fact ready for trial, while allowing flexibility when the facts merit additional time.
Sounds like a plan, but what does it mean? The actual text of the changes tells the story. This is the gist of the amendment:
3. FOR PURPOSES OF SUBDIVISIONS ONE AND TWO, THE PEOPLE ARE READY FOR
TRIAL WHEN A REPRESENTATIVE OF THE PEOPLE AFFIRMS THAT THE PEOPLE’S
EVIDENCE IS IMMINENTLY AVAILABLE FOR PRESENTATION TO THE TRIER OF FACT.
A VALID STATEMENT OF TRIAL READINESS MUST BE ACCOMPANIED OR PRECEDED BY
A CERTIFICATION OF COMPLIANCE WITH THE DISCLOSURE REQUIREMENTS OF
SECTION 240.20. THIS SUBDIVISION SHALL NOT APPLY TO CASES WHERE THE
DEFENSE HAS WAIVED DISCLOSURE REQUIREMENTS.
Seems legit, unless you happen to actually practice law in the criminal courts of New York, in which case, not so much. Initially, an announcement of readiness now is pretty much exactly the same, as the prosecution, referred to as “the People” in the law because it makes them sound more likeable, except perhaps that they must now “affirm” it rather than announce it.
What that means is unclear; will the judge interrupt the prosecutor when he says, “the People are ready for trial,” and say, “but do you affirm that?” Officially, an affirmation carries the weight of perjury on its shoulders, though a deliberate misrepresentation to the court is similarly subject to sanction. Not that it happens, except in the rarest of instances.
The most significant change would appear to be the requirement that the prosecution can’t announce readiness without certifying that they’ve complied with discovery. In the past, they announced readiness first, knowing full well it meant nothing because the defense still needed discovery before they could even think of going to trial. This would appear to end this practice.
But it’s more a matter of appearance than substance. Prosecutors routinely hand over a “Voluntary Disclosure Form” with an indictment at arraignment, which, they contend, satisfies their discovery obligations. First, it does not, but rarely does a judge care. Second, New York’s discovery statute is so limited as to be nearly worthless anyway. And third, it will change nothing in practice.
So while the changes create the appearance of movement, it will do nothing to change the practice beyond, perhaps, forcing prosecutors to use more formal words than now. Even this is unlikely, as formal mantras are routinely ignored anyway. And the final sentence, allowing defense counsel to waive everything anyway, is ripe for shenanigans.
Want a plea offer? Waive 30.30. Don’t waive? Go to trial. All hell will break loose.
But there is another piece to the problem, and to the amendments, because once the prosecution announces readiness, they are only responsible for the limited periods of time of “unreadiness” they claim. In other words, if they are missing a witness on Monday, they can ask for an adjournment to Wednesday, knowing full well that the case will be adjourned for a month. Yet, they are only charged with two days delay, and the rest of the delay is excluded as court congestion.
ANY SUCH EXCLUSION WHEN A STATEMENT OF UNREADINESS HAS FOLLOWED A STATEMENT OF READINESS MADE BY THE PEOPLE MUST BE ACCOMPANIED BY SUPPORTING FACTS AND APPROVED BY THE COURT. SUCH EXCLUSIONS MUST BE DETERMINED BY THE COURT NO LATER THAN THE NEXT SUCCEEDING COURT DATE AFTER WHICH SUCH TIME WOULD BE EXCLUDED;
What is meant by “accompanied by supporting facts” is unclear. So the ADA says it’s the cop’s RDO (regular day off), or the assigned assistant has been sent out to trial by another judge? Aside from neither being a good excuse, it’s already done. As to whether claims are accurate, nothing that happens in a courthouse is ever absolute, so it would be essentially impossible to prove they lied, as there is always an excuse why a claimed problem didn’t happen.
But mostly, these changes rely on prosecutors being honest about readiness and delay, and judges caring enough to hold them to their duty to be ready for trial. This is, theoretically, always the case, and it hasn’t yet fixed anything. Changing the law to tell prosecutors and judges to be “really, really honest” about being ready is just more of the same. But the law is named after Kalief Browder, so it must be good.