The other day on the twitters, somebody announced that New York was “going to” reform its archaic criminal discovery statute, CPL § 240.20. Gov. Cuomo says it’s going to happen. The state Senate and Assembly are finally both in the hand of Democrats, rather than the normal split of the Senate being held by Upstate Republicans.

So I quoted the “going to” language of the twit, and the fellow asked whether I thought it would happen. “No,” was my reply. Not that it shouldn’t happen. Not that it isn’t desparately needed. Not that the current discovery statute isn’t astoundingly bad and restrictive, designed to deny the defense of basic information necessary to make rational decisions and prepare a defense.

Supreme Court Justice Jim Yates provides an explanation of what was intended when this discovery statute was written.  He should know.  He wrote it way back when.

Judge Yates was disgusted by the way his discovery statute had been undermined.  It had been the intent to encourage and expect meaningful disclosure, but with prosecutors using disclosure as a weapon, and judges unwilling to buck powerful district attorneys, it became a unwieldy limit on the defense.

I wrote these words more than a decade ago, the last time the discovery statute was “going to” be reformed.

A solution to the fiasco called discovery has been offered by a former Brooklyn ADA, now State Assemblyman, Joseph Lentol (D-Kings County), chair of the Code Committee.  He has proposed versions of a bill, A-1119, that would liberalize discovery.  He’s done so annually for a decade.  His bill has never made it out of committee.

Is it different now? Will this time produce a change? The New York Times has issued an editorial chiding the state, How to Make New York as Progressive on Criminal Justice as Texas. On the one hand, challenging New York by comparing it to Texas strikes at the liberal ego, always a weak spot. On the other, nothing can turn off upstate, Republican and old-school city liberal legislators more than characterizing reform as “progressive.”

In New York, prosecutors operate within a draconian system that gives them free rein to leave defendants in the dark about aspects of their cases for months or even years.

The system may be draconian, but it’s not a word that relates well to discovery.

In cases big and small, state law authorizes prosecutors to withhold key evidence from defense lawyers and their clients until the eve or sometimes the day of trial. Prosecutors in New York do not have a legal obligation to turn over in a timely fashion all police reports, witness names, DNA evidence, surveillance footage or anything else from their investigative files.

This isn’t really a fair description of what’s currently required under the current law. It’s not helpful to exaggerate the problem, as it’s bad enough as is. The current statute requires the disclosure of DNA lab reports and video, but not police reports, witness statements and grand jury testimony, which is turned over as Rosario material on the eve of trial.

Advocates for defendants say this entrenched legal structure in New York puts a “blindfold” over the eyes of defense lawyers and their clients. And it runs up against Americans’ basic understanding of how fairness is meant to work in the legal system.

And that’s where the Times steps onto the  “progressive” slippery slope. The “Blindfold” image is evocative, but too cute for seriousness, and typical of the progressive gross over-simplification of the problem. It plays well with the people for whom fortune cookie thought is sufficient, who are better at shouting slogans in the street than sitting down and drafting sound law.

Most states, including the law-and-order bastion Texas as well as North Carolina and New Jersey, have changed their laws and procedures to allow open and early disclosure of evidence in criminal prosecutions, which has led to fairer outcomes and deterred prosecutorial abuse.

Has more open discovery laws “led to fairer outcomes and deterred prosecutorial abuse” in other states? That will come as news to the defendants and criminal defense lawyers there. Notably, the Times offers no cite for this assertion, not even one of its stories which fails to prove its point as it commonly does.

Now New York has a chance to join the mainstream on this issue.

The link here is to a 2015 New York State Bar Association Task Force on discovery reform, chaired by my old nemesis and pal, Justice Mark Dwyer. The first sentence of the report says:

For forty years, reports and legislative proposals by experts and practitioners have urged
New York State to reform its outdated and unfair criminal discovery rules.

Yes, for 40 years. And for 20 and 10 and now. Even with discovery reform, there will be no panacea. The system won’t magically transform into one that guarantees fair outcomes and eliminates prosecutorial misconduct. But it will be significantly better than it currently is, not because of the hyperbole of being “blindfolded” but because defendants and their lawyers will be afforded their constitutional right to prepare a defense and make decisions about whether to plead guilty or go to trial with adequate knowledge of what the evidence against them will be.

This isn’t a “progressive” gimmick. This isn’t about cute characterizations of the problem. We’ve known for decades what needs to be done to provide adequate discovery to prepare a defense. There’s nothing progressive about it, and even if characterizing it as progressive doesn’t create another stumbling block to reforming bad old law by alienating everyone who isn’t, and has no desire to be, progressive. It’s just sound discovery law, and there’s nothing new or progressive about it.

Will it happen this time? I hope my “no” twit is proven wrong. But if it does happen, better that they finally get the law right than get it “progressive.” It still won’t “fix” the system, there being far more wrong than just this one tiny slice, but reforming discovery is certainly a critical piece of the puzzle. We’ve known this for the past 40 years, before anyone called it the “Blindfold” law.