New York City prosecutors are seeing more and more of their cases dismissed without going to trial after the state passed new court evidence requirements, according to a new study.
In 2019, New York changed its laws governing how prosecutors are supposed to share evidence with criminal defendants in criminal procedures, accelerating the pace at which prosecutors are supposed to grant discovery to the accused. Discovery is the legal term for the formal process by which either party in a court case is allowed to see the evidence that will be presented in a trial.
The new law, which went into effect in January 2020, makes discovery automatic rather than requiring defense attorneys to request evidence. The law also sets a strict time frame of 45 days for prosecutors to turn over evidence to defense teams after a defendant’s arraignment. The law further requires the inclusion witness information and grand jury testimony as part of their evidence disclosures, even if witnesses are not planning to testify in the trial. Another portion of the law states that prosecutors must disclose all potentially discoverable material it possesses at the time it is offering a plea deal to a defendant.
According to a report by the Manhattan Institute, the number of cases that prosecutors have had to dismiss has risen from about 44.3 percent under the old discovery laws to about 69.5 percent in 2021.
The report showed that under the previous laws, 44.3 percent of cases ended in dismissal while 45 percent ended with the defendant making a plea bargain, 8 percent being held for a grand jury or transferred to the New York Supreme Court, and 2.5 percent of cases ending in other dispositions such as trial verdicts. By mid-October of 2021 (when their data ends), the Manhattan Institute found that the number of guilty pleas had shrunk from about 45 percent of cases in 2019 to 21.3 percent.
“Discovery is fundamental to a fair trial because it is impossible for defendants to make informed plea-bargain decisions if they do not know the strength of the evidence that prosecutors have against them. However, New York’s 2019 discovery statute … has crippled the state’s criminal justice system with an untenable compliance burden,” the Manhattan Institute wrote.
Misdemeanor cases saw an even greater number of dismissals. In 2019, 49 percent of misdemeanor cases ended in dismissals while 47 percent ended in guilty pleas. By mid-October of 2021, 82 percent of misdemeanor cases ended in dismissals and 15.5 percent ended in guilty pleas.
Institute Attributes Spike in Crime Rates to Discovery Laws
While prosecutors may be dropping cases simply because they are running out of time to turn over all required evidence, the Manhattan Institute argued that witness disclosure provisions in the new discovery laws are also contributing to the growing number of cases that get dismissed.
Because the prosecutors must disclose grand jury and witness information early on, including for witnesses not planning to testify, the Manhattan Institute reasoned that potential witnesses are “understandably, by all available measures and reporting, are choosing not to testify in increasing numbers of cases.”
“The statute, therefore, has correlated with a devastating rise in crime and a drop in arrests,” the institute added.
Since the discovery laws went into effect, New York City adult felony arrests fell by 14 percent between 2019 and 2021, while shootings rose by 102 percent and murders rose by over 51 percent, according to the institute. Felony drug arrests dropped by 48 percent while drug overdose deaths rose by almost 80 percent.
Some Defense Attorneys Didn’t Read Discovery Materials In Allotted Time
The Manhattan Institute argued that the new discovery laws place more burden on prosecutors than defense attorneys. The think tank said that prosecutors are unable to build their cases and prepare for trial while they are busy “chasing paper” to meet the discovery requirements. At the same time, the institute noted many defense attorneys didn’t even review the evidence prosecutors provided to them within the first month.
According to interview sources that spoke with the Manhattan Institute, in the first year after the new discovery laws were implemented, defense attorneys were failing to access discovery packages within their 30-day windows in 60 percent of cases.
While the institute claimed many defense attorneys didn’t look at the discovery materials provided to them under these new laws, Legal Aid Society outright challenged this claim as a “lie.” In a comment to the New York Post, a spokesperson for the organization said, “Our team downloads discovery and disseminates evidence typically within 24 to 48 hours. The report’s author is either a liar or is so credulous and unconcerned with verifying facts that she should not be taken seriously.”
Incoming president of the New York State Association of Criminal Defense Lawyers (NYSACDL), Yung-Mi Lee, didn’t necessarily challenge the allegation that 60 percent of defense attorneys didn’t open the discovery files within 30 days, but told the New York Post that this finding may be the result of some technological challenges. Lee said defense attorneys are still working through the technical challenges of how they receive evidence.
“But I have to say, discovery reform has been incredibly eye-opening and extremely helpful,” Lee added.
‘Unfillable’ Vacancies in Prosecutors Offices
The institute further argued that the increased clerical burden with the new discovery laws has caused many prosecutors to quit. The institute said Manhattan and Brooklyn each lost about a fifth of their prosecutors between the spring of 2021 and the spring of 2022.
The institute conducted an informal survey in October, finding that several district attorney’s offices throughout the state had recorded attrition rates of up to 40 percent, and “unfillable vacancies.”
District attorneys “are losing seasoned prosecutors and are forced to try to recruit new ones right out of law school,” the institute wrote.
The new law appears to have even exhausted a high-profile prosecutor who favors criminal justice reform. When Manhattan District Attorney Alvin Bragg took office in January 2022, he ordered his team to dismiss many cases involving trespassing, resisting arrest, and even called for armed robbery cases not involving firearms to be treated as misdemeanors. But Bragg has also complained about the discovery laws.
In March, Bragg said “we’ve experienced record attrition, as our ADAs burned out and sought less demanding jobs for more money,” the New York Post reported.
Proponent Says Reforms Are an ‘Unmitigated Positive’
Jennifer Van Ort, executive director of NYSACDL, said the organization “strongly objects to the ultra-conservative Manhattan Institute’s flawed and biased conclusions that NYS Discovery reform has been anything but an unmitigated positive for New York’s citizenry.”
Van Ort said the reforms were “long overdue” in a state with “one of the nation’s highest wrongful conviction rates.” She said the reforms help prevent prosecutors from slowly releasing evidence to defense attorneys in a way that disadvantages their clients and leaves them “unable to confront the evidence against them.”