The new discovery rules requiring prosecutors to turn over an expanded array of discovery within 15 days of arraignment, with an additional month for the asking, are now the law. Whether it’s doable, given certain systemic limitations such as lab reports, additional investigation and police intransigence, remains a mystery, but now that it’s the law, it’s the law.
And regardless of whether this is the best way in which to reform New York’s discovery law, there has been no question for the past 50 years that the law as it previously existed was bad, ineffective and grossly unfair to the defense. No one seriously argues that the law wasn’t in dire need of reform.
But the Kings County District Attorney, Eric Gonzalez, supported reform and had been held up as an example of how the law was doable. According to public defenders in the trenches, open file discovery was the norm in Brooklyn, and it showed that prosecutors could comply without the pain and undue expense so many claimed would destroy the system. So what happened?
Two dozen prosecutors have resigned from the Brooklyn District Attorney’s office since Jan. 1, as paperwork required by a new state law drowned them in late-night work, sources in the office told the Daily News.
The new law has boosted workloads by requiring prosecutors to hand over most evidence in criminal cases to defense lawyers within 15 days of suspects’ arraignments. Prosecutors who once clocked out in the early evening are now working late into the night, say multiple sources in the DA’s office.
Nobody likes change, particularly when the burden of making it happen falls on their shoulders. And for many assistant district attorneys, the job was intended as a stepping stone to their future as trial lawyers, an opportunity to gain some trial experience before they landed in a corner office elsewhere. This may have been nothing more than a marker, a shift in their workload that informed them that the time had come to move along. But that’s not what they’re saying on Court Street.
“This many people leaving is not normal,” said an assistant district attorney who requested anonymity to speak freely on the subject.
But overwork is a chronic problem for the 550 assistant DAs in Brooklyn, the lawyer said.
Hard work happens, and some might suggest that the current crop of young lawyers, whether on the prosecution or the defense side, are a bit more concerned about their personal work/life balance than their predecessors. At the same time, it’s a demanding job all around.
“It’s a combination of discovery laws exacerbating issues that were around before,” said the assistant DA. “I think people felt overworked and underappreciated for a while. There’s a lot of attrition. This office has never done enough to address it.”
“Implementing the new laws in the county with the largest caseload in the state requires our assistants to put in very long hours for the same pay,” the spokesman said.
This is a curious argument, as the compilation of discovery materials, from the basics to Rosario materials to Brady material, was theoretically required by law anyway, although on a markedly different time frame. The difference here is that they’re required to turn it over up front, well before the old demands and motions were made, and certainly before trial, where the defense got a dump the day before, when the ADA often took his first hard look at what was in his file.
While the virtue of earlier and more complete discovery is obvious, as the defense is able to meaningfully assess the case and provide knowledgeable advice to defendants as to what the path ahead looks like, it seems the underlying argument about the burden on prosecutors is that their ability to use the lack of discovery to obtain quickie pleas, thus obviating any need to later gather the serious discovery and actually take a hard look at it, has created their work/life problem. Essentially, the bad old discovery law made their job much easier because they rarely reached the point where hard work was required. Now, they do.
It’s unfair to argue that this doesn’t place an additional burden on prosecutors, and an additional expense on offices where the same people at the same pay are now required to do a lot of work that they had shrugged off in the past with easy plea deals.
Other assistant district attorneys around the city are also putting in late hours. Manhattan DA Cy Vance Jr. is offering $60 stipends to ADAs who stay at the office past 9 p.m. to comply with discovery laws.
“We are here until 10 or 11 p.m. every night just trying to gather discovery,” said another Brooklyn ADA who spoke under the condition of anonymity.
“There’s definitely much more work. But it’s not legal work — it’s more like paper pushing,” the ADA said.
That this change in the discovery laws would have any impact was vehemently denied by its proponents in response to cries that it would be expensive as well as difficult. Of course, the sides hyping their positions is nothing new as reform happens, even if both were a tad disingenuous in their claims. It’s no surprise that it gives rise to additional burdens, and that the burdens will make things difficult, if not impossible, to do without more money, staff and changes in procedures.
But if it’s the right way to handle discovery, if reform is needed, and if this is viable reform, then so what? Sometimes it costs money to comply with the law, to afford defendants constitutional rights, to make an unfair and improper system better.
While the details of how the new discovery reforms will work out remain to be seen, it’s understandable that it will make far more work for prosecutors and that they won’t like it anymore than anyone likes more work for the same pay. That’s just not a reason to disavow the reform if the reform is what due process demands.