Public defender groups were up in arms on Wednesday about what they say is a behind-the-scenes legislative proposal worked out between Gov. Kathy Hochul and district attorneys in New York City to roll back discovery reforms.

The groups claim that Hochul and New York City's five DAs are hammering out a measure that would require defense attorneys to file challenges to prosecutors' discovery compliance statements within 35 days—a change that they say would require the defense to prove what's "unknowable" under such a short clock.

The policy measure, reduction of the state's 2019 discovery reforms, has been included in the state's ongoing budget talks, which is well beyond its April 1 deadline for passage.

According to the public defenders, such a change amounts to an 11th-hour budget measure that would turn back the clock on reforms that included requirements for district attorneys to share discovery material in a more timely manner.

A spokesman for Hochul referred the Law Journal to the governor's April 5 statements to reporters regarding discovery reform: "We've been talking about public safety in general…and we'll be looking forward to continuing making progress on public safety."

The spokesman didn't respond to a request for confirmation that the specific rollback had been negotiated.

The reforms, which went into effect in January 2020, require prosecutors to share evidence within 20 calendar days of arraignment if the defendant was in custody during the pendency of the criminal case; within 35 calendar days of arraignment if the defendant was not in custody; or no later than 15 days before trial in certain cases involving traffic infractions or petty offenses.

Public defenders said the proposal would shift the burden entirely from the prosecution. A prosecutor could potentially be able to file a compliance certificate and leave the defense guessing as to what materials are missing—as opposed to not existing at all—within the 35-day window. If a defense lawyer doesn't accurately guess what may have been left out of the materials, they would have effectively waived the challenge.

"So it totally shifts the burden to the defense to know what is unknowable," the defense lawyer said.

The attorney predicted that the rollback would cause defense attorneys to file motions in every case, even where no motion was necessary.

"We can't know what we don't know," the defense lawyer said. "So it's going to increase the delay. It's going to create chaos where these courts are clogged with motions and in some cases, they're going to be needless motions for the prosecutor to respond to."

The Manhattan District Attorney's office acknowledged that it is "continuing to work with our partners in Albany to find commonsense solutions that preserve the intent of the law while ensuring we can achieve appropriate accountability in all our cases."

Legal Aid Society and Brooklyn Defender Services, two organizations that have already fumed over Hochul's allocation of an additional $40 million in new funding for the state's district attorneys to help them comply with the discovery laws—but no funding for defenders—pushed out official statements.

"Rather than provide the necessary resources to fulfill the purpose of New York's discovery law, Gov. Hochul, alongside a handful of district attorneys, are attempting to force through a proposal that would gut these much-needed reforms. Legislative changes to undermine the discovery laws will diminish prosecutorial accountability, result in more wrongful convictions, and cause more New Yorkers to languish in deadly jails for longer," Brooklyn Defender Services' statement read.

Said Legal Aid Society: "This 11th-hour ploy to gut one of the most transformative reforms Albany has codified in recent memory is a shameless attempt by prosecutors to revert back to the days when discovery practices skewed heavily in their favor."

Reached Thursday, J. Anthony Jordan, president of the District Attorneys Association of the State of New York (DAASNY), bristled at the notion that the proposed changes were a rollback of discovery. He said it's an improvement. And he said budget negotiations were the appropriate forum for the proposed changes, because it is the same process by which discovery and bail reforms were changed.

"Rollback is a bit of a pejorative," Jordan said.

He explained that the stated purpose of discovery reform back in 2019 was to address perceived imbalance in the criminal justice system.

"I say perceived because in part it wasn't imbalanced by the way the statute was written. But the vast majority of offices had open file discovery – not all – and so the legislature with then Gov. Andrew Cuomo set out to try to address that" in a way that "we ought not have, in something as important as criminal justice, trial by ambush."

But what's happened in the end, Jordan said, is that imbalance has shifted to the other side of the equation.

"When the purpose of a criminal justice system is to hold someone accountable, to provide protection and accountability, and to address wrongs done to victims, I think what we're seeing is that the significant increase in dismissals in metropolitan New York are not because of factual innocence, or issues with stop, or the case – but because those offices can't comply with the letter of the law, and the result is dismissal."

He said DAASNY has been involved in proposals to make improvements ever since the reforms were adopted, including with this latest effort.

"We've been involved in that regard in terms of what spearheaded the most recent talks. I would say the city district attorneys have been the most active because when you look at the statistics, it is having a crushing effect on their ability to do their jobs and hold people accountable and provide restoration for victims," Jordan said.