Six years ago, I penned an opinion piece for this very paper expressing my support for the passage of groundbreaking legislation in New York. On the heels of many years of advocacy and negotiation, New York was — at long last — on the precipice of curing its broken discovery laws. Discovery laws articulate what evidence and information must be shared with the defense in advance of a plea agreement or trial.
Robust discovery is foundational to due process, public safety and the fair administration of justice. When the law was enacted in 2020, New Yorkers had every reason to celebrate. Prior to passage, New York was identified as one of four states with the worst such laws in the country. Before discovery reform, the New York law was labeled the “blindfold law” because it did not require prosecutors to share key evidence, like witnesses’ statements, with the defense until the eve of trial, effectively blinding the defense.
Many New York prosecutors fought hard against the reform, arguing that sharing evidence with the defense would put crime victims at peril despite the fact that the bill included provisions to protect victims and witnesses. Five years into implementation of the law, there has been no evidence of these doomsday predictions.
Now Gov. Hochul, at the behest of prosecutors and without any consultation with the defense community, is proposing a massive rollback to that seminal law, allowing prosecutors — with baked-in incentives to win cases — to determine what evidence is “relevant” and should therefore be turned over. The governor and prosecutors have referred to these changes as “tweaks” to “streamline” the process. In reality, this would be a sea change. Now prosecutors would be the gatekeepers of what evidence to share with the defense and what evidence is “relevant” to the defense.
The prosecutors justify this rollback, saying that the current requirements are too onerous and these proposed changes will simply “level the playing field.” The suggestion that the playing field is unfairly stacked in favor of people accused of crimes and that prosecutors are somehow disadvantaged is an audacious claim. For decades defense teams were evidence-starved and left with no time to investigate the charges against them. Rather than being disadvantaged in their law enforcement role, prosecutors have breathtaking discretion and power.
As a board member at the Innocence Project and Centurion Ministries, I am well aware of the causes of wrongful convictions. Last year, Jim McCloskey, the founder of Centurion Ministries who has battled wrongful convictions for 40 years, and I published a book profiling 10 cases of innocent people wrongfully convicted. Just like the more than 200 cases in New York, these too involved prosecutors withholding critical evidence.
Behind closed doors, nearly all stakeholders concede that the prosecutors’ actual challenge in meeting their discovery obligations is a refusal by police to comply with the discovery laws. Arguing that police fail to turn over all of the evidence, they are burdened by chasing down that evidence to meet speedy trial requirements. This not only disadvantages the defense; it can also disadvantage prosecutors, who might dismiss charges once they have a broader understanding of the evidence.
The way to address that problem would be to mandate police compliance and enable electronic evidence-sharing between the police and the prosecutors. Indeed, there is a legislative proposal that would do just that. But instead of requiring that the police comply with the law they have chosen to ignore, the governor has offered a proposal that frays the constitutional rights of people presumed innocent.
Cutting off access to all of the evidence and removing the enforcement mechanism that requires timely disclosure — ostensibly because it is difficult to obtain the documents from noncompliant police officers — will return New York to the bad old days when defense counsel was too often left in the dark about evidence that would be critical to their clients’ cases.
Passage of Hochul’s proposal would be an affront to due process as it will risk that more evidence will be withheld, resulting in the likelihood that more innocent people will be unjustly convicted because a prosecutor — focused on proving their case — decided it was not necessary to disclose such information. When it examined this very issue exactly a decade ago, the New York State Bar Association called such an approach “antiquated” and “inadequate” because “often prosecutors do not know the defense’s theory of the case at the time decisions about disclosure are made.”
Let’s remember what is at stake: of the 350 wrongful convictions revealed in New York to date, more than 200 involved prosecutors withholding critical evidence. The governor’s proposal promises many more miscarriages of justice.
Grisham is the author of many books, most recently, “Framed: Astonishing True Stories of Wrongful Convictions.”