by Nathan Riley

In a desperate effort to achieve real criminal justice reform, nearly 35 protesters marched across the Brooklyn Bridge “chanting after arraignment, not before trial.”

Under New York law, a District Attorney may withhold evidence from defense attorneys until shortly before trial, but they can immediately seek a guilty plea without justifying it with evidence. The Defense Attorney must present the DAs offer even though he has had no chance to evaluate the evidence.

It’s called the “blindfold law” by the defense bar, playing on the image of blind justice weighing the scale because lawyers representing desperate clients are flying blind. They have no way to evaluate the State’s case hence it’s impossible to know if the prison sentence recommended by the DA is fair or outrageous.

New York’s discovery law is indefensible, only Virginia has one that is comparable. Newspaper editors like the Rochester Chronicle correctly describe the problem, “The punishment should not come before the conviction of a crime.”

Defense lawyers routinely represent people in jail because they can’t make bail, and prosecutors rely on the dismal conditions in lockups to coerce guilty pleas. Changing the discovery law is one of three critical reforms that are needed to give the predominantly Black and Brown men a chance to have their day in court.

Bail reform and guarantees of a speedy trial are the other items in package of reforms that Mayor de Blasio says are needed before he can close Riker’s Island. The effect of the three reforms would be to lower the population of this NYC jail to below 5,000, a population that can be managed in smaller boroughs jails.

The issue is of major importance but Governor Cuomo has placed the bill into the budget where negotiations take place behind closed doors and criminal justice reform is just one among many issues.

While admitting the need for reform the Governor has consistently deferred to District Attorneys when drafting legislation.

Joe Lentol, the longtime chair of the State Assembly Codes Committee, is blunt in pointing out that the obstacle to reform is the political influence of the district attorneys. “The rules are in their favor,” he said. “Why should they change it?”

But States like New Jersey have for decades required prosecutors to share evidence. The reform in the words of the Democrat and Chronicle require Prosecutors and Defense “to share facts and evidence as they build their cases. Right now, defendants often don’t get the information until it is too late to be useful in preparing for a trial, or they don’t get it at all.”

Imagine representing a client who is marched off to State prison without ever seeing the evidence but that happens in New York State. It means young men are spending years away from family and friends even if the police officer misstated the facts or manufactured evidence. Individuals are in jail who would be found not guilty in a full and fair trial. In other words they are innocent under the law.

It was this pain that drew the protestors to march and gather in Foley Square across from the Federal Courts. Akeem Browder, spoke of the pain suffered by his 16-year old brother Kalief who spent 3 years in Riker’s Island much of it in solitary confinement for allegedly stealing a knapsack. Had discovery reform been in effect his lawyers would have learned that the owner of the knapsack had returned to Europe and there was no case at all. Upon his release, Kalief was a crushed unhappy young man who seldom left home and then burdened with PTSD took his own life.

Prince Jackson spoke of the need for just leadership. He spent 24 months in the Suffolk County jail and then 25 years in prison, while discovery would have revealed that the DA knew he was somewhere else when the crime was committed.

Brian Benjamin, a State Senator from Harlem, is pushing hard for reform. “I believe we have got to have open and automatic discovery” He insisted on rewriting the discovery rules because, “you are innocent until proven guilty.”

Kenny Agosto, Chief of Staff for Bronx State Senator Jameel Bailey led the march on Saturday, March 24, 2018.  He is on the Board of Discovery for Justice which along with Vocal-NY organized the demo demanding “open, early and automatic” discovery.

The State’s budget will be voted on before Thursday, March 19, 2018 and that may end the chance for criminal justice reform in this legislative session.

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See Cuomo Must Step on Discovery Reform for an earlier article.