No reasonable lawyer would argue that discovery in criminal cases in New York wasn’t a disaster before. It was a nightmare. The statutory disclosure was minimal and damn near worthless. It wasn’t until the eve of trial, if that, that you would get any discovery that mattered, and by then it was far too late to make use of it. More to the point, since most cases were disposed of by plea, it never happened.
You never saw the Brady material before copping a plea. Hell, you rarely saw Brady material if you went to trial. The prosecutor’s response to the defense demand for Brady was invariably “the prosecution is aware of its duty under Brady and will comply should any such material exist.” There was never any Brady, at least as far as the prosecution was concerned. So if they decided it doesn’t exist, there was nothing to turn over. No problem.
But then came discovery reform as a consequence of the “awakening” of a nation to police misconduct and the Trump-induced shift to a Democrat Senate in New York. Reform? On the one hand, about time. On the other hand, it wasn’t the change we would have expected, based on what earlier reform commissions concluded would serve everyone’s interest.
It went a lot further, or perhaps orthogonal, than the reforms that had been sought for decades. From the old nightmare of almost nothing, we went to full automatic, and within 20 days of arraignment for a defendant in custody and 35 days for “out” cases. The time frames made more sense for simple, low-level cases, most of the time. They were untenable for more serious cases where there was no comparable need for such an abbreviated time frame. Three months for discovery would have been glorious. But 20 days?
Sounds great? Sure, for the defense. But it was an overnight nightmare for the prosecution, as discussed here more than two years ago. Now, the New York Times figured it out as well.
New York City’s prosecutors are leaving in droves, citing pandemic burnout, low salaries and two intersecting laws that fundamentally changed the nature of their jobs.
“They just simply can’t do it anymore,” Darcel Clark, the Bronx district attorney, said in a Friday interview. “The money is not where it should be, and the work-life balance is just unmanageable.”
Classic Darcel, wrong and yet manages to come up with an excuse that’s unsympathetic. The starting salary for an ADA in Manhattan and Brooklyn is $72,000. For the Bronx, it’s $75,121, because you have to pay people more to be anywhere near Darcel. Put aside her sad tears for work-life balance (because isn’t that why someone becomes a lawyer, a prosecutor, to have tons of free time to play with the puppies?) and consider their impoverished state.
District attorneys say their employees are struggling. Ms. Clark said her office’s lawyers, inundated with paperwork, could make $30,000 more doing similar tasks for law firms, which might also let them work from home. “Why not do that?” she said.
Since Darcel asked, I’ll answer. While that might be true for NY County ADAs, which gets the pick of the litter as the premier prosecutorial office in New York, maybe even the nation, her office was the second team, the ones who didn’t make the cut for Manhattan. The reason they didn’t get Biglaw bucks is because they couldn’t get Biglaw jobs. Not that there weren’t some good lawyers in the Bronx, but they weren’t top of the class at HLS. They were doing pretty damn well at $75,121, and most new lawyers outside of Biglaw weren’t making anywhere near that number.
But the other reason to become a prosecutor was to learn to be a trial lawyer. ADAs tried cases. Until they didn’t. And the new discovery laws were the straw that broke the camel’s back. Not only did they no longer try cases, but they were mostly relegated to being paper pushing gophers.
The first law requires prosecutors to obtain and hand over hundreds of documents on many cases, a demanding task that can impede interviewing witnesses and otherwise preparing for court. A second law ties the handover of that material to the speedy trial clock, creating deadline pressure for prosecutors to collect all the material once charges are filed. (That law is known as Kalief’s law, named for Kalief Browder, a teenager who committed suicide after being held on Rikers Island for three years without a trial.)
For instance, if a defendant blew into a breathalyzer, a defense attorney is entitled to six months worth of calibration reports on that device. Prosecutors also have a continuing obligation to hand over a similar number of calibration reports filed after the defendant used the device.
The reformed discovery law did something that absolutely needed doing, to substantially expand the scope of what was discoverable, shift the burden off the defense to “request” it and onto the prosecution to provide it, and advance the time frame so it can be known before deciding whether to go to trial or cop a plea, and used in the preparation of the defense. And that was, without a doubt, a good thing.
But it did so in a way that was extremely difficult, if not impossible.* The ability to get cops and labs and transcripts together within the required time frame, not for one case but for the full caseload, turned prosecutors into “paralegals,” as one ADA told me, spending their days chasing down papers, calling people who absolutely had to turn over the necessary memo book pages, and then calling them again when they didn’t and disappeared onto the street.
You became a prosecutor to try cases, maybe because you believed you were fulfilling a necessary function in the legal system, and ended up spending your day gathering paper from players in a system that never liked you all that much to begin with and surely didn’t like you any better for constantly nagging them to turn in their reports. And then fielding phone calls from “victims,” cursing at you for not having gotten their perp sentenced to life plus cancer within a week after arrest.
Tough nuggies, you say? Well, yeah, except for the fact that there are bad dudes out there and we still need competent prosecutors to prosecute them.
The district attorneys are replacing their previous employees when they can, often exchanging experienced prosecutors for untested ones.
Most prosecutors do a three-year stint in the office. That’s their commitment, and after their commitment is up, and they’ve tried a few cases and gotten some courtroom experience under their belt, they become more competent lawyers and a marketable commodity to a law firm where they make the money and enjoy the work-life balance they deserve. Then there are lifers, the ones who move into supervisory roles and do the heavy cases, the high-profile work that gets their faces on the evening news.
Without these experienced prosecutors, who tries the cases of defendants who should be convicted? Hell, who tries anything, as the n00bs can’t try their way out of paper bag, even with the cops and snitches (and the occasional judge) in their pocket. Discovery was terrible before, but without a corps of prosecutors capable of doing the job when and how it should be done, fixing one problem gave us another problem that could end up being far worse in the long run. We were in desperate need of discovery reform in New York, but the changes overshot the mark and are unsustainable if we are also in need of competent prosecutors.
*While every case is different, some of the grievances about defendants being “coerced” into taking pleas before lab reports are back showing no controlled substance are a bit disingenuous. The defendant knows whether it was drugs or not, so it’s not as if he needs a lab report to know what the substance was. And if it was, and he cops a plea before the lab comes in, it’s not as if he did so under a mistaken belief.
Other scenarios will differ significantly, of course, but for the most part, people have a fair working knowledge of what they did and did not do. And, it needs to be noted, this presumes honest prosecutors who won’t lie, cheat or bury the Brady, for which no discovery mechanism is going to make things better.
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And stupid non lawyer comment, “Why do they make a law so stupidly hard of instead of, ‘within 3, 5, 7, 10 (pick one) days of receipt by ADA”. Or, “all material in ADA’s possession tuned over prior to offering a plea”.
Probably because an ADA would turn it into a loophole involving the word “receipt” or “the”
I know, writing laws is hard.
Yes, this is a stupid non-lawyer comment. Don’t do this.
ADAs are quitting because they suddenly have to work too hard? Boo hoo.
I’ll let some bold ADA defend the grievance that this is too much work or makes their job too miserable, but this has been the feedback I’ve gotten from ADAs, both new and old, since the beginning. Are they just being whiny or is it as difficult as they claim? Beats me, but that they are, indeed, quitting as a result is just a matter of the numbers. And while you’re lack of empathy is understandable, do you really want there to be no competent, experienced ADAs? Do you think that’s sustainable, or that there will be a backlash that will end up with far worse discovery law than we would have had otherwise?
I don’t do criminal matters, but in regulatory hearings an experienced governmental attorney on the other side is often a blessing – the newbies often have no idea of the day to day realities of the subject matter being regulated, and so can be weirdly intolerant and overzealous in odd ways. Also much more likely to throw out weird and not terribly-sound legal theories which some Administrative Law Judges will know to disregard, but which others will get confused or taken in by. It’s always a sigh of relief when I get a new hearing file and contact the agency to find out the “prosecuting” attorney and find out it’s a crusty old vet. They’ll usually be easier to work a reasonable deal with, and even if they’re hardasses, I can give my client consistent advice about what they’re likely to do.
I replied on twitter to you the other day, but my 3L year (2009-2010) was spent in a criminal defense clinic where we defended misdemeanor defendants in the Bronx. I wrote many discovery requests and even a couple of motions to compel discovery. I never even got a response to a single request or the motions. When I would mention this at court appearances, the ADAs would laugh. The judges would see the outstanding motions in the file unread, and put the cases over for a month. My clients would have to take off work, arrange for childcare, skip school, etc. just to appear in court so they wouldn’t get a warrant and the prosecutors could say they weren’t ready to proceed with no speedy trial time charged to the People. Overcharging and making up baseless charges was the rule, not the exception and if you figured out how they were overcharging your client, they’d drop the charge before discovery was handed over so you couldn’t even use the phony charge to impeach the arresting officer. These were intentional tactics used to extract more severe plea deals. I’ve written about it here: [Ed. Note: Link deleted per rules.]
So yes, the new law makes it much more difficult for the prosecutors, but they took advantage for so long that I have zero sympathy for them.
Your lack of sympathy is understandable, but it’s self-indulgent. We want good law and procedure for everyone’s sake, not just to fuck the nasty prosecutors.
Not to question your 3L experiences, but from my experience, you overstate the problem with Bx ADAs. They can be assholes, but there are some very good ones as well. Be careful about going too extreme, especially given your limited experience.
That said, bear in mind that as bad as they are, the solution isn’t to be just as bad in return, but to be better than them.
I agree with you (and the commenters below) that the process needs to be improved so that the pendulum lands in the middle where it belongs rather than continuing to swing side to side. I’m not demonizing any ADAs in particular. The problems with the Bx DA’s office (particularly under Robert T. Johnson) were systemic. Speaking up or even not following the “company line” was career suicide. Questioning the police narrative meant jeopardizing the ADA’s relationship with the police. If you interviewed at any of the DA’s offices and expressed in any way that you recognized that prosecutors have a special duty to ensure justice and not just win convictions, you were rejected immediately. So while I don’t like that our prosecutors offices are weak, I will not extend any sympathy to the prosecutors who advanced their careers by trampling the rights of the poorest people in this country. It should be hard to put people in jail! And I’d argue that the prosecutors that handle misdemeanor matters are generally less concerned with constitutional violations than those that handle felonies because the misdemeanors garner much less attention.
One of the problems with PDs who do misdemeanors is that it’s a mill, grinding through cases to dispose of them, and they may not be familiar with the significant differences for felonies or federal cases. This is why discussion of process has to take into account the differences between misd cases and felonies, and serious felonies. The needs are very different for a public urination case as opposed to a manslaughter or a 26 deft drug conspiracy or a murder. They’re all “serious,” but life plus cancer is a few orders of magnitude worse than time served or community service.
LDA, I’m writing this as a reply to you only because you raised the points, not to criticize you.
This reflects two very common flaws in the view of young lawyers, mostly PDs, that’s unfortunately counterproductive. The first is vilifying prosecutors, exaggerating how evil they all are, when the reality is that there are good ones and bad ones, and most aren’t evil. Yet, demonizing your enemies has become the game, and from there it’s easy to hate them, or at least have no sympathy toward them. We hate it when criminal defense lawyers are demonized for doing our jobs, yet we do the same to prosecutors. This is wrong.
Secondly, if we can’t find a viable solution, the pendulum is going to swing back and we’re going to end up the losers. Like it or not, the public is deeply afraid of crime and will accept terrible infringements of rights for their safety. It might not seem that way among your PD friends or twitter echo chamber, but the real world out there is rife with fear, and reforms that went too far are going to get crushed. And we’re going to get crushed with it.
Sure, they had it good for far too long and the desire to get your day is understandable. But do you want sustainable good process or just a brief moment in the sun before it all comes crashing down again? It’s not about sympathy for prosecutors, but giving our clients a chance five, ten, twenty years from now, after this big reform victory is long forgotten?
The idea of law is an ideal that can never be even remotely approached in the real world.
The brain drain is real as you describe, Mr. Greenfield. Out of the last three hired classes of Bronx ADAs (around 160 attorneys), a minuscule portion has ever tried a case — maybe in the ballpark of five or six total. I even know class of 2017 ADAs who have never had a hearing or trial; trials are so rare in the world of misdemeanors as to be like mythical creatures. I sometimes fear these in-court trial and evidentiary skills will atrophy for lack of use. Experienced felony assistants and supervisors leave the office every day, leaving few role models or mentors who are capable of teaching these skills, or being figures for more inexperienced ADAs to emulate.
While the COVID-related closures of courts played a role, in my opinion the heightened rates of dismissals and ACDs stem primarily from the discovery reform. Just under 70% of all misdemeanors and felonies citywide get dismissed as of October 2021; not to mention the innumerable amount of misdemeanors reduced to discons, felonies reduced to harassments, and the other compromises that have to get made under the conditions of constant discovery-gathering described above. The defense bar, particularly the institutional defenders, have lobbied very hard to pass discovery and speedy trial reform as stringent as could be feasibly made. Because of the new prohibition on partial conversion, viable multi-victim cases get dismissed because one single victim among them cannot be located. Misdemeanors ranging from DUIs to assaults to child sex abuse dismissed for literally the lack of a responding officer’s memo book or prisoner holding pen roster. There being little appellate guidance, every judge is an authority to himself or herself, and you need to know which judges will sua sponte dismiss a case with cooperative complainants over the People’s objection.
Some of my more radical defense bar friends that I’ve spoken to feel this all was exactly the point — to demoralize the DA’s offices, to cause case overloads and attrition by resignation, and to reduce incarceration by any means necessary. Rather than unintended consequences, the reforms have been quite effective in achieving these aims. You are right to say that the ADAs should not whine — we lost in the legislature and in the court of public opinion, and the defense bar has bounced from victory to victory; unless we can convince legislators otherwise this is just the result of democracy in action.
To be fair, for decades, we fought for discovery reform that wasn’t so onerous and worked for everyone, only to have cop unions and DAs lobby the lege to kill reform. In a very real sense, the DAs brought this on themselves when they had the lege’s ear before the institutional defenders.
The worst part of this is that when the winds turn, as they will, I fear we’ll go back to an untenable discovery regime for the defense, and the DAs will be the obstructionists again.
Point taken. I am too young to have memories of the bad old days before reform, but it seems totally reasonable to give over discovery within a month or two of arraignments (and certainly not morning of trial). My opposition is way less to discovery reform as a concept as it is to the unpredictable and arbitrary it plays out in practice, with each judge their own fief and the only guidance being the vague hand-waving of CPL 245.
I suppose the endless pendulum swings are just the way of the world, but it’s unpleasant to imagine legislators with minimal-to-no practical criminal law experience ginning up utopian schemes for my colleagues and opposing counsels to have to manage, that fall apart on first contact with reality.
The problem that you are highlighting is that changes to the law to fix one problem cause other arguably worse problems.
Is it possible to trace back to a root cause or are root causes mythical beasts?
One possible root cause that I suggest is that states commit to more law and order than they can afford but maybe this has prior causes that go back to human nature is what human nature actually is and that it is not what humans think it is.
SHG, this is the core of the nagging question that many of your posts cause in my brain. The problem that you higlight need an explanation that in turn need an explanation and so on …….
There are no easy answers in law, just trade-offs, and the effort is to find the trade-off that does the least harm to the fewest people.
I have practiced criminal law in Florida for 37 years. We have open file discovery, depositions of most witnesses and a strong speedy trial rule. None of that has presented a problem to prosecutors. I am amused by the wailing and gnashing of teeth of prosecutors required to produce minimal discovery.
I suspect prosecutors would welcome open file discovery (which some were already doing without incident). That’s not the problem here.
There are two things I’d really like to know:
The first is how much of this actually requires an ADA to do rather than office staff? Paper pushing doesn’t usually need that full HLS experience right? If they’re being turned into paralegals, what is the barrier to actually having paralegals do it? (Budget is surely going to be one of those barriers, of course).
The second is how much of this is painful only because they don’t have a process set up to routinely do all this? One of the examples used was breathalyzer calibrations. I can see getting breathalyzer calibration reports each time for every DUI would be taxing. But the same breathalyzer is going to be used for multiple DUIs. Maintaining a shared repository of those reports in office while an upfront cost would surely be easier in the long run.
Fair questions. Some answers seem obvious, even if less than satisfactory.
That would make sense. Even with public budgets, the DAs should be able to show that they need some new staff to perform tasks required by this enactment that were not required before.
Paralegals in the private sector are not the same as “paralegals” you get off a civil service list. In my office, you can’t really tell a paralegal what to do.
The law was not written to protect defendants. It was written to end prosecutions. Why do prosecutors have to certify that all discovery has been turned over before taking a plea, but the defense attorney doesn’t have to certify that they reviewed the material?