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Brian Lehrer: Brian Lehrer on WNYC. You've probably been hearing that the New York State budget is nearing two weeks late now, largely because they're gridlocked on the non-budget issue of bail reform and whether to grant judges more leeway to impose bail in certain cases. Now it's also emerging that there's another part of the 2019 criminal justice reform law that's also being negotiated.

It's the part pertaining to what's known as discovery, specifically the requirement for prosecutors to share evidence with defense attorneys within six months of a person being arraigned for a felony charge, nine months for a misdemeanor. The DA say that timeline requirement is leading many cases where crimes have actually been committed to be dismissed before a trial can be held. Here's Manhattan DA Alvin Bragg on this program as he sees it on this issue on this show in January.

DA Alvin Bragg: My number one priority, and we have not set it yet is discovery. Alongside bail, the discovery law was changed around the same time to make the time period in which prosecutors have to produce evidence in the offense shorter and the evidence to be turned over are more robust. I fully support early and full discovery, that's been my practice throughout the past 20-plus years, but we didn't get funding. We didn't get funding to do it. I know the other city district attorney's office, the public defenders also did not get good money.

Brian Lehrer: DA Alvin Bragg, known as a progressive prosecutor, of course, but in this case, he's on the opposite side from groups like the Legal Aid Society, which fear the consequences for justice if the timeline for discovery disclosure is loosened. With me now is Kalle Condliffe, staff attorney with the Criminal Defense Practice Training Unit at the Legal Aid Society. Thanks for coming on, Kalle. Welcome to WNYC.

Kalle Condliffe: Thank you so much for having me, Brian.

Brian Lehrer: You heard DA Bragg there. Can you explain the current discovery law, which many people in the audience have never heard of from your point of view, and why you think it's important?

Kalle Condliffe: Yes. Thank you. As you said, discovery is really the process of evidence sharing. We're talking about things as basic as police reports, surveillance videos, 911 calls, witness statements, very fundamental pieces of evidence. What this reform ensures is that the prosecutors have an obligation to provide all of the evidence that exists in the case against an accused person early and fully, that they don't withhold evidence, until the last minute, which was the situation prior to these reforms that were enacted in January of 2020. Before these reforms went into effect, we had situations where people would be sitting in jail waiting for their trial for two to three years, and they would never have access in that time to the basic evidence against them. This reform sought to and effectively did change that and enables us now to get that evidence early in the case

Brian Lehrer: Because it's not a game, one could ask why should one side in an adversarial process share what it has with the other side, but the idea is that the state is supposed to represent truth and justice, not just trying to lock people up to the maximum degree, right?

Kalle Condliffe: That's exactly right. Before these reforms went into effect, it was basically played like a game. It was all strategy. Despite our demands and requests that we would file in court for discovery early in the case, prosecutors would often wait until the day of trial or the week before trial to provide this material. It left us completely incapable of investigating our cases, working with our clients to actually figure out who was accusing them and why.

It had really detrimental effects and caused many people to take pleas to get out of jail, pleas to things that they didn't do, or to charges that were overcharged. That's really what this law sought to such reform. Ultimately, it is a two-sided process, but they're not looking to change the rules that require us to make disclosures. They're only looking to change the rules that place any obligations on them.

Brian Lehrer: Ah, so you say it is a two-sided process. In other words, the defense has to share incriminating evidence that it has with the prosecutors?

Kalle Condliffe: The defense has an obligation to share anything that it intends to introduce at trial, and that obligation is triggered by our receipt of discovery from the prosecutor. It is a two-sided process. However, again, they're not looking to touch that, they're only looking to reform and bring us back to a time that I've described where there were too many people taking pleas without having seen the evidence against them.

Ultimately, as you said, the power dynamic here is such that we don't know what we don't know. We don't know what evidence exists in a case. We don't know who's making an accusation. We can't know it. We don't have access to the witnesses, we don't have access to the police, we don't have access to their databases. The prosecutors do. They have access to all of these witnesses from day one. The new law sought to require them to do what seems like a very basic obligation, which is to actually speak to the witnesses in the case early on and gather whatever materials are in their possession or that they're aware of.

As I say it, it's shocking that that has not always been the obligation on prosecutors in New York. In fact, it's the obligation of prosecutors across the country. Before the reform, New York was among the four most regressive states in the country on this. States like Texas and North Carolina had passed, prior to New York, had passed these very sweeping open file discovery laws that had these requirements on prosecutors.

Brian Lehrer: We'll play another clip of DA Alvin Bragg in a minute. It's progressive prosecutors, even progressive prosecutors like him against progressive defense attorneys like the Legal Aid Society that you represent in this particular case and see if there's common ground, which from what I've been reading, it looks like there might be, that's possible. Listeners, we want to invite you to help us report this story as well. Any lawyers either who work as prosecutors, Alvin Bragg told me he has 500 ADAs, Assistant District Attorneys, that's just in Manhattan, one county.

Any ADAs out there, or former ones or defense attorneys, or anyone who's been a defendant or a victim in the criminal justice system want to help explain discovery or the effect that the 2019 discovery law reform is having on justice as you see it, or what you want or don't want for any revision now under consideration, as this seems to be one of the hot topics in Albany at the moment that they have to resolve before they can pass the new fiscal year's budget, help us report this story, 212-433-WNYC, 212-433-9692 with Kalle Condliffe, staff attorney with the Criminal Defense Practices Training Unit at the Legal Aid Society, 212-433-9692. Here is another clip of DA Bragg on our show in January about this issue and an aspect of it that he thinks is a reason that they can't meet their deadlines for sharing evidence before trial.

DA Alvin Bragg: Our information technology lags, just by way of one example, 2021, before I was in office that year, I think 1800 or so misdemeanor cases that kind out, they were dismissed because discovery wasn't turned over in time. Again, that was before my time. That does not amend public safety. It's an issue for my office and administration and administration of justice more broadly and also public safety.

We're having cases, some of these domestic violence cases. That's a discussion that we've started at the city and the state level of proper funding and particular information technology solutions and also taking a look at that statute, so we can meet our obligations, but also in a way that we don't have cases getting dismissed because of information technology shortcomings.

Brian Lehrer: DA Bragg here in January. That's a little bit in the weeds, a little technical, but Kalle, what's your reaction to that and the Legal Aid Society's reaction to that? I'm sure you're concerned going to what he said there at the end of the clip about perpetrators of domestic violence, not getting off to threaten their partners or family members again, with no shot at accountability through trial, because the DAs can't get the discovery material quickly enough, you're concerned about that, right?

Kalle Condliffe: Brian, I think the problem is that we're accepting this premise that the discovery law is to blame for dismissals of cases, rightly or wrongly, without any data to support it. Any increase in dismissals has not been clearly linked to discovery reform. The bottom line is that there are many reasons that cases get dismissed, and particularly in domestic violence situations, it's often, honestly, and if this was happening long before discovery reform came into play, that people choose not to go forward.

There have always been higher rates of dismissals in the category of cases involving domestic violence than in other categories of crime. I also want to just remind listeners to the clip that you played at the beginning, which is that what DAs and legislators and the governor have been saying, and Mayor Adams have been saying for a while now, is that there is a need for funding and to improve infrastructure to enable us to actually implement these laws on both sides.

Both we joined the DAs in requesting funding for the implementation of the discovery law. The fact is that in 2019 when this law was passed, as DA Bragg said, there was not funding appropriated for the implementation of the law, and here we are in the middle of budget negotiations, that is what should be being discussed. They need to give money both to DAs and to defenders. It's desperately needed. Infrastructure is desperately needed to improve the early and open sharing of discovery, and they need to be able to hire more staff and better resource their lawyers.

Brian Lehrer: That's where the common ground is. Both you and DA Bragg, at least, I don't know how much he speaks for all the DAs around the state, but at least you and him want more funding that would include more ability for the DAs to get discovery completed in time, six months after arraignment for a felony charge, nine months for a misdemeanor, so that the cases are not dismissed just on that basis, right?

Kalle Condliffe: That's right. Ultimately, again, I think that one thing that's also important to understand is that one of the good things about this law is that it has forced DAs to do something that they, unfortunately, for many, were not doing before, which is actually not just turnover the discovery, but look at it themselves. The evidence, if they even had it in their possession, would just sit there. They didn't actually have an incentive to look through what they had early in the case prior to these reforms, and so many cases that ultimately should have been dismissed weren't because the DAs didn't actually investigate what they were prosecuting.

Now, because of the reform and the need to do their due diligence and turn this material over sooner, they're actually having to take a closer look at it earlier in the case. I would suspect that many of these dismissals are actually being brought by their office or they can move to dismiss cases of their own volition and often do. Again, this is where I feel that the data just is not clear enough to support that these dismissals that he spoke about are all the results of discovery reform. It's not [crosstalk]

Brian Lehrer: There isn't a ruling from the bench in those cases that makes it clear and unambiguous, "I'm dismissing this case as the judge because discovery was not completed on time material handed over to the defense in the six month or nine-month window under the law. Therefore, I'm dismissing the case." It's not that clear cut when a judge dismisses a case in the way that it was described by DA Bragg in the clip.

Kalle Condliffe: Certainly, there are cases where motions are brought by defense attorneys to dismiss cases where they say that the prosecutor was not ready for trial within six months or 90 days. Ultimately, some cases do get dismissed, and frankly, those motions were being made prior to the reforms as well. It's not to say that judges aren't rendering decisions that end in dismissal, but there's no data to prove that those decisions, that that process by which a judge makes that decision accounts for any increase in dismissals.

Dismissals have been happening both through motion and through the use of prosecutorial discretion forever. I just think that drawing the conclusion that it's a bad thing, or that it is the result of only an onerous process on the district attorneys, that is unfair, or that these cases are being dismissed for bad reasons. That's the conclusion that I take issue with.

Brian Lehrer: Let's take some phone calls. Here's Jay in Bergen County. You're on WNYC with Kalle Condliffe from the Legal Aid Society. Hi, Jay.

Jay: Hi. I just want to point out that there's gamesmanship on both sides. For sure full discovery should be had and it should be timely, but I just want to communicate to your listeners that this is a enormously overburdened office and it's very difficult to bring these cases, to bring it timely and to provide discovery. You don't want to tip off necessarily prematurely all of your evidence when the prosecution is still securing their evidence and they still want to protect witnesses that are worried potentially about coming forward to bring people whose freedom is on the line to justice. It's a two-sided thing. I think it boils down to resources. I think it's really, really, really important to push for additional resources to enable the office to comply with these deadlines.

Brian Lehrer: That seems to be where the common ground is, Jay, but do you think, and it sounds like you might have experience in this field that if there are sufficient resources, that six months is a reasonable standard of time by which to share discovery in a felony charge?

Jay: I think so. I think you have to-- By the way, there are committees on this thing that scrutinize this stuff. Bar Association committees at various levels, they get real deep into this.

Brian Lehrer: There's a committee known as the Entire New York State Legislature that's trying to hash it out right now, which is why we're talking about it.

Jay: They've had hearings on it. I'm sure they've heard from numerous experts. I did work for the government as an attorney, but I didn't work on the criminal side, so I'm not going to put myself forward as an expert or not, but I have been in New York courts and they're way overburdened and especially the DA's offices and working for as an attorney for those offices is quite a challenge. It does boil down to, to resources. I do feel for both the investigators and the police and the prosecutors in these processes, it's very easy to overwhelm those offices. I do feel for the defendants too. There are for the lack of resources, there are shortcomings on all sides. It's a very thorny area to work through, but resources is the key.

Brian Lehrer: Jay, thank you. There's that common ground again. If they provide enough funding, maybe the law stays in place in terms of the new timelines and everybody goes forward without other changes. Pramilla in Teaneck, you're on WNYC. Hi, Primilla.

Pramilla: Hi, Brian. Good morning and thank you for taking my call. I'm not sure that I'm addressing the New York law, but I'm very curious about discovery given all the wrongful convictions that continue to this day and a lot of that in fact, it seems most of it is dependent upon how discovery is handled. My question is, why isn't it simply law that the police should investigate both inculpatory and exculpatory evidence, all of the evidence they could possibly gather from a scene of the crime or what they deem is a crime innocent until proven guilty and so on.

Then to present all of that to both the defense and the prosecutor, and supposedly the prosecutor's office is known as in this justice system, the justice and the prosecutor as the Minister of Justice. It would seem that it's not a battle about who wins and who loses but is justice being done? Is the proper person being caught for a crime and correctly judged? For all of that to happen why is discovery such a fraud field? From what I understand of the way Norway handled its problem of wrongful conviction was to make it law that the police had absolutely no right to pass any guesswork or judgment on what it was they were witnessing but they're required to present all of the evidence in front of the prosecutor and the defense all at once. I may have misunderstood that, but I'd love clarification.

Brian Lehrer: Thank you. Thank you for such a thoughtful set of questions, Pramila, and observations including that first principal. There are many wrongful convictions we report on them all the time. Why aren't police just required to share everything? Kalle, where do you want to jump in? Pramila put a few things on the table there.

Kalle Condliffe: Yes. I really appreciate that. Pramila, that is exactly right and I desperately wish that that were the attitude of our legislature, our prosecutors, our police. The bottom line is that it is shameful the number of wrongful convictions that happen in the city, in the state, and this country and Pramila is absolutely right but there is very often a strong connection between a failure to provide discovery to have transparency in this process that is to blame for that. I just absolutely agree. I think that that's what the system should embrace and unfortunately, I worry that the proposals that are on the table will not achieve that and then will actually bring us back.

Brian Lehrer: Pramila, thank you so much. By the way, to her other point at the end of her call, do you happen to have looked at Norway as a model at The Legal Aid Society, or is that an international case you're not familiar with?

Kalle Condliffe: I can't say that I'm familiar with Norway's system but I'm certainly going to make myself familiar with it now because it sounds very, very interesting.

Brian Lehrer: Pramila, thank you for a wonderful call. Please call us again. Steve in Brooklyn, you're on WNYC. Hi Steve.

Steve: Hi. Yes, I was listening to another caller talk about a committee of lawyers studying times and everything and I was listening him say, "Six months, we think that's reasonable." I work with criminal defendants and I can't say much more on the air but six months to a guy who's sitting in Rikers in a situation where the odds of survival are not 100% is not reasonable. The speedy trial thing is a joke, and there are a million things the DAs and defense lawyers can do to stop that clock from ticking. They can stretch it out to years which is why bail reform was invented as a tool to coerce guilty pleas from people just to get out and defense lawyers will do it too.

Sometimes not in the defendant's interest and sometimes it's just because the lawyer feels like he's too busy to represent his client. The idea that the constitutional right to a speedy trial is ever honored in New York or anywhere else in this country has become a joke. This is witnessed by the fact that bail reform was intended to stop using incarcerating people pretrial as a tool to coerce guilty pleas because even with bail reform, they can do it forever if they want to. That's all I have to say, and I'm tired of lawyers saying six months is a reasonable time. You're in Rikers, the odds of survival is not 100% so six months is, maybe I'll live through that and maybe I won't.

Brian Lehrer: Yes, and even if you do survive it, your life is put on hold-

Steve: You won't survive as the same person you were when you went in, for sure.

Brian Lehrer: -for at least six months before you can even go to trial on something you haven't been convicted of yet, and of which you might be innocent. Steve, it's really challenging Kalle, what you're defending as the progressive discovery law reform because it used to be much worse. Now, they have to provide it within six months after an arraignment for a felony. You're talking about, okay, that's a progressive reform and he's saying, "Yes, even six months, it's not great."

Kalle Condliffe: Yes, let me be clear. I 100% agree with Steve. What I am saying and I'd also like to offer an example to show or to add to what he's saying. We had a case and this is widely publicized, we had a case where our client was a father, a working man, never been arrested and he was falsely accused of a gang assault. This was in the Bronx in about 2015, I believe. He had bail set on him, spent some time at Rikers Island. Eventually, he was lucky enough to be able to make bail with the help of his family but by the end of the case, it lasted a year and a half, 22 adjournments.

It was all the result of the withholding of surveillance footage, which ultimately exonerated him which the prosecutor told us that they had from day one. In fact, misrepresented that it would support their case. Then at the end of the case, after the defense attorney had been jumping up and down, up and down, up and down asking for this video, they ultimately first said that it didn't work. It was corrupted then eventually right before trial a year and a half later turn it over and sure enough, it's exactly what our client had been saying all along. He had not been the one to cause this person's injury, he was working as a bouncer at a bar at the time and was standing outside and was wrongly accused.

The notion and again, the results, the impact on his life. Luckily, he wasn't incarcerated the whole time. Although I've had very many similar cases when I worked in the Bronx myself where my clients were incarcerated for years under the exact same circumstances. At the end of the day, this man lost his job. He lost his car, he lost his home, he lost his family because they didn't want to be around him because they assumed at that point that he must have done something if he had been arrested as many do.

He is just one example of far too many, and in the end of the day, this has real consequences for real people. I 100% agree with Steve that six months is too long. It shouldn't take that long but the idea that what they want is even more time is what I'm taking issue with right now.

Brian Lehrer: Do you know what the proposal is? Because it sounds like as we mentioned a few times, there's common ground on the idea of more funding so the six-month standard can be met consistently. If they don't come up with enough money for that, the DAs are asking to lengthen the deadline from six months for when they have to turn over their evidence to the defense.

Kalle Condliffe: It's not exactly that. My understanding is that what they are requesting is basically something that would from my perspective, flick the burden back onto the defense. Right now, the law says it's automatic. It gives a list of items that should be provided and it says that they have to turn it over as soon as possible but they don't face the dismissal until about six months on a felony. We at this point, it's not our burden to know what we don't know. It's not our job to guess what may or may not exist. What their proposal does is it require us to file demands after they say, "Okay, I think I've given you everything."

It requires us to file demands, to say that we're missing additional items, to make guesses, shots in the dark as to what may or may not exist, which is again, what the law said before 2019. The burden was on the defense to demand whatever we wanted to obtain and ultimately, that led to nothing being turned over for months or years and often sometimes discovering certain items never being turned over at all which often led to wrongful convictions or blind pleas.

What we are afraid of with this proposal is that, again, it is going to shift the burden so that if we don't accurately guess what we are missing from whatever disclosures they choose to give us that we will then forfeit our right to that material. That is something that just cannot happen.

Brian Lehrer: Before you go, can you give me a quick thought on the other part of the 2019 Criminal Justice Reform Law that is usually in the headlines I hope we've provided a public service here by going to this other piece talking about discovery and not talking about bail. Just very briefly, as more people hear about what's under consideration for pulling back on the bail reform law, the phrase that gets used is least restrictive standard.

The judges are now compelled to only impose bail based on the least restrictive standard regarding a particular defendant. Governor Hochul wants more flexibility for the judge. Legally, it opposes that. What does least restrictive standard mean in about 30 seconds, and then we're out of time?

Kalle Condliffe: Basically, what it does is it ties the amount of bail set to the need to bring somebody back to court so that you're not just punishing somebody for being accused of a crime, but rather you are ensuring that they will come back to court. Because that's supposed to be the point of bail is to ensure that they come back to court. They haven't yet been found guilty. The concern that I understand, and again, this is not my area of expertise, but to my knowledge, my understanding is that the real concern is that they are trying to remove the tie, the standard of ensuring somebody's return to court from this statute, which would be outrageous.

Brian Lehrer: Because the way the governor is concerned with the fact that people seem to be committing additional crimes more than before when they're out on bail during that period. I know you dispute the stat.

Kalle Condliffe: Well, we do, but also, she has made public statements to the effect fairly recently in my understanding that crime is up all over the country. That, in fact, the whole reform has nothing to do with recidivism rates. I'm not even sure that that's truly what the governor or any legislators believe. I think that, ultimately, this thing that they're calling a tweak is really a catastrophic undoing of bail reform. It has absolutely nothing to do with those purported statistics.

Brian Lehrer: All right, a lot in play in Albany on criminal justice right now that is expected to be resolved in the coming days. We thank Kalle Condlife, staff attorney with the Criminal Defense Practice Training Unit at the Legal Aid Society for her views. Thank you so much.

Kalle Condliffe: Thank you so much for having me.

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