Prosecutors Brace for Sweeping Change as NY Criminal Justice Reforms Take Effect
Prosecutors told the New York Law Journal they're as close to compliance as they can be with a limited infusion of funds from their county governments and a new tool that's expected to make sharing evidence with defendants quicker and easier.
December 31, 2019 at 11:52 AM
9 minute read
When prosecutors in New York show up to work Thursday for their first day in the office of the new year, they'll find their practice of law transformed as the state's new laws on cash bail, criminal discovery, and the right to a speedy trial finally take effect.
It's been eight months since the state Legislature approved the new laws, since which prosecutors have said the changes, particularly to criminal discovery, will fail without additional funding from the state.
Those calls continued this week, but prosecutors told the New York Law Journal they're as close to compliance as they can be with a limited infusion of funds from their county governments and a new tool that's expected to make sharing evidence with defendants quicker and easier.
Rensselaer County District Attorney Mary Pat Donnelly, a Democrat who took office this year, said her office was still bracing for the changes as recently as Monday.
"I think we're as prepared as we can be," said Donnelly, who serves an upstate New York county. "I'm very frustrated the more I dig into the mandate, and I recognize that a lot of this could be done with proper staffing and proper funding."
Donnelly was able to secure funding from her county government for three new positions to help comply with the new laws. She now has another assistant district attorney, an administrative position, and funding for half of an investigator.
She now has 13 assistant district attorneys on staff, but said she could use more to ensure full compliance with the new laws.
"I honestly think you could double the amount, and I think any district attorney in the state would tell you the same, in order to do this right," Donnelly said. "I obviously know that's not reasonable."
District attorneys across New York, including in New York City, have called on the state Legislature in recent months to set aside funding in next year's state budget specifically to supply staffing and technological upgrades to their offices in light of the new laws.
The heaviest financial burden, prosecutors have said, is the change to criminal discovery, which is evidence and information disclosed to the defense ahead of trial.
Prosecutors will now, under the new law, have to disclose criminal discovery to the defense within 15 days of a defendant's arraignment in most cases. That deadline didn't previously exist in state law, meaning some prosecutors could take longer to share discovery.
Sometimes, prosecutors said, they don't immediately have the evidence and information available to them to turn over to the defense. It's collected first by law enforcement, who then have to get that information to prosecutors, who then have to prepare it for the defense.
Yates County District Attorney Todd Cassella, an independent elected two years ago, said there's a misunderstanding from some that all prosecutors will have to do is hand over the information or evidence they already have. That's not true, said the western New York DA.
"If all this was was turning over everything we have, we would be fine," Cassella said.
The 15-day deadline places a significant time crunch on prosecutors, who already have limited means for preparing that information for the defense, he said.
The clock starts ticking after a defendant's arraignment, meaning that prosecutors have 15 days to retrieve files and information from members of law enforcement, prepare it for the defense, and then get it to the defendant's attorney.
That's difficult for a few reasons. For one, prosecutors have to look through each piece of evidence or information individually to see if they need to redact anything that would be irrelevant to the case. That could be someone's name, or a face in a video.
But there's also the challenge of transferring files from local law enforcement agencies to the prosecutor's office, and then to the defense attorney.
That's where a new tool now used by several prosecutors in New York will be put to use. The tool was introduced to a small number of prosecutors last year, but is now available statewide.
It's called the Digital Evidence Management System, or DEMS. It's a statewide creation of the New York Prosecutors Training Institute, which provides continuing legal education and assistance to the state's district attorneys when they need it.
DEMS is a statewide content management system that prosecutors can use to easily transfer digital information and evidence from members of law enforcement to their office, and then to the defense. It's all done through a cloud-based system.
Cassella was one of a handful of prosecutors in the state that was given access to DEMS last year as part of a pilot program. It changed the way his office did business, he said.
"It allows us to build a digital case file," Cassella said. "We can scan in all the paperwork, upload photos, video, audio, emails, and everything else to alleviate the need of having a physical file."
That starts with the law enforcement agency that made the initial arrest. With DEMS, the prosecutor will send an officer at that agency a link to the system and a password to access it. From there, it's as easy as dragging and dropping files into a folder.
Those files are then uploaded into the cloud-based system, where the prosecutor's office will access them and prepare them to send to the defense. When they're ready, the prosecutor can send the defense attorney another link with a password to access the prepared files.
"It essentially gives them a side door into the system for that specific case and allows them to view those things in a web browser," Cassella said.
While the new tool will help expedite the discovery process, it's not the solution prosecutors have been looking for. Much of discovery will still require additional funding and staffing.
Not only do prosecutors have to retrieve evidence and information from members of law enforcement, 911 dispatchers, and anyone else involved, they also have to prepare it for the defense.
That could mean anything from redacting irrelevant information from a document to blurring someone's face from a video. Those things can't be done automatically, they take personnel, prosecutors said.
Washington County District Attorney Tony Jordan, a Republican and former member of the state Assembly, said that's the key challenge to complying with the new discovery law.
"With body cameras, with audio and video interviews, all this stuff has to be reviewed before it can be turned over," said Jordan, an upstate New York DA.
His county government approved two new positions for his office that will deal entirely with discovery demands. They'll be retrieving information from law enforcement, reviewing it, and then getting it to the defense, Jordan said.
It's possible that he'll get for more staffing in the future, but the county government decided to take a wait-and-see approach. Jordan said he was grateful to be given any positions at all, let alone two to handle discovery alone.
"It's a substantive and transformative change, but at the end of the day we have a plan we feel will work, and we'll still be able to provide public protection for Washington County," Jordan said.
Donnelly said she's not opposed to the new changes, it's just the way they were implemented that's frustrated her office. The cost, as of now, will be borne by taxpayers in the county, but the changes were legitimate, she said.
"I think we all agree that leveling the playing field and giving the defendant a fair opportunity to examine the evidence is the right thing to do," Donnelly said. "It's just the mandate and the short time period without any additional manpower or funding that's really so daunting."
A spokesman for the state Division of Budget repeatedly said in recent months that counties will have access to hundreds of millions of dollars in new revenue enacted as part of this year's state budget, which can then be used to fund the new laws.
"There is no question resources are available for the implementation of these critical reforms as the State invests more than $300 million to support them and local governments will recognize hundreds of millions of dollars in annual savings from a declining inmate population," the spokesman said.
The New York Civil Liberties Union, which supported the changes this year, hailed the new laws this week ahead of their effective date Wednesday. The changes were intended to provide defendants with tools to build a stronger defense against the prosecution.
"The end of this decade marks a new dawn for justice in New York," said Donna Lieberman, executive director of NYCLU.
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