Brooklyn judge limits defendants’ rights to challenge prosecutors over evidence sharing


Judge Keisha Espinal, the supervising judge of the Brooklyn Criminal Court, issued a controversial court order on Monday that could push defense attorneys to waive their right to challenge prosecutors’ inability to provide evidence in late stages of a case.

The ordinance launches a pilot initiative that court officials say aims to reduce delays caused by landmark discovery reforms passed by the New York state legislature in 2019. But defense attorneys argue that The judge’s plan undermines efforts by lawmakers to ensure that those facing criminal charges are not kept in the dark about key evidence in their cases.

The 2019 law required prosecutors to turn in evidence at the start of a case and file what is known as a discovery certificate of compliance in order to stop the fast clock in the New York trial. (This clock limits the time prosecutors have to declare they are ready for trial, typically between two and six months for most criminal charges.)

The aim of the law was to create a tangible sanction for failure to produce evidence. Depending on the circumstances, if it turned out that prosecutors had withheld information, they could be charged with the period in which they had suspended the rapid trial clock, which could result in the case being dismissed.

Before the law was passed, prosecutors could withhold information about key witnesses and evidence until the day before a trial, hampering people’s ability to defend themselves and putting pressure on many to they enter into plea deals, even when they thought they were innocent.

“While I think there need to be adjustments to the Discovery reforms, changing the law is something that’s left to the legislature,” said Adam Uris, New York defense attorney and former Brooklyn prosecutor. . “Right now, a bureaucratic agency is trying to change the law without permission to do so. “

The sponsor of the legislation, Jamaal Bailey, a state senator representing parts of the Bronx, did not respond to requests for comment on the new policy.

Court administrators and prosecutors have argued that these new protections cause defense lawyers to be silent when they independently identify evidence they believe prosecutors should have provided, so that they can then file evidence. last-minute requests asking judges to close their cases.

“Judge Keshia Espinal proposed [the] plan to implement this with the aim of reducing the practice of overwhelming movements that occurred after the district attorney filed his certificate of compliance, ”said Lucian Chalfen, spokesperson for the Office of the Administration of courts. “The result is a lot of movement. The parties are supposed to try to resolve the differences of discovery, but neither haste nor flexibility has been a feature of the defense bar, ”referring to defense lawyers in general.

Judge Espinal’s pilot program seeks to curb such tactics by forcing prosecutors and defense attorneys to meet once the prosecution has filed its certificate of compliance and draft a joint letter outlining any disputes regarding the availability of evidence that may not have been disclosed. Defense lawyers who fail to do so will lose their chance to challenge missing evidence later in the process.

“Failure by the parties to confer and file the aforementioned letter will be considered by the court as a notice that no issues have been raised with the filed certificate of compliance and will constitute a waiver of those issues at a later date.” , Order of Judge Espinal States.

Several defense lawyers and public defender organizations have expressed alarm at the court’s unilateral decision, which took effect this week.

They argue that Judge Espinal’s plan prompts them to sign a letter despite any disagreement they may have with prosecutors. And refusing to sign could void their rights to challenge missing evidence they might not discover until months after a case begins.

“This inadmissibly shifts the burden on the defense to seek discovery which by law should automatically be provided by prosecutors,” said Yung-Mi Lee, legal director of the criminal defense practice at Brooklyn Defender Services. “This order says that our clients’ discovery rights depend on whatever the prosecution accepts in a joint letter.”

Defense attorneys also note that when prosecutors no longer face the threat of a challenge that could lead to a dismissal of the case or other sanctions, such as not being allowed to use key witnesses, they are less likely to likely to be diligent in fulfilling their discovery obligations.

“We protect the prosecution when it fails to deliver documents,” said Steve Zeidman, director of the Criminal Defense Clinic at CUNY School of Law. “We are going backwards. “

Prosecutors, on the other hand, have told Gothamist / WNYC that they support Judge Espinal’s initiative, and some are hoping it will be implemented citywide.

“This would limit the bar militarization of discovery laws, which they treat primarily as a post-facto ‘trap’ game having nothing to do with ensuring that defendants have access to evidence against them.” said a district attorney outside Brooklyn who spoke on condition of anonymity because he is not authorized to discuss political issues publicly.

“It also emphasizes discovery litigation over resolving what the prosecution needs to acquire, process and deliver, rather than mixing this issue with a stew of procedural and speedy trial issues,” he said. he continued.

A senior official from another district attorney’s office expressed the same concerns. “Once they discover a missing piece of evidence, they can wait and then they dispute the certificate on the grounds of a speedy trial,” she said, speaking on condition of anonymity to speak freely about her disagreements with the defense bar.

Brooklyn’s new initiative may reflect a growing trend within the New York justice system to cut down on attempts to penalize prosecutors for missing evidence. In Rochester earlier this year, a county judge dismissed a defendant’s petition to have his drug and handgun possession case dismissed on the grounds of a speedy trial despite a prosecutor’s failure to restore police radio transmissions and a printout of information that appeared on the computer screens of a police vehicle during a traffic stop.

The court concluded that the man’s petition erroneously claimed that the prosecution had exceeded the deadline for his expeditious trial, but found that even if this argument was correct, the district attorney’s certificate of compliance “was filed. in good faith and is appropriate ”, meaning that the prosecution’s earlier claims of being ready for trial were valid.

Responding to criticism from defense advocates of Judge Espinal’s initiative in Brooklyn, Chalfen, the court spokesman, argued that New York’s Discovery Act already “explicitly empowered” courts to urge advocates and prosecutors to meet and discuss outstanding discovery issues. This plan, he said, “only requires” that both sides commemorate the process in a joint letter.

But Judge Espinal’s order does not mention where judges have the power to impose exemptions from future challenges over missing evidence. In a statement, Chalfen pointed to a vague clause in the Discovery Law that allows a court to order “measures or procedures designed to achieve the objectives” of the law.

“This ordinance in no way diminishes or diminishes the current statutory or constitutional obligations of the prosecution or defense,” Chalfen said.

Uris, the defense lawyer, said the new order puts his camp in an unfair position of either offending a judge by rejecting the order or risking a client later accusing them of not representing them. effectively.

“Our job as defense lawyers is to aggressively defend our clients,” he said. “They ask us to be less zealous than is appropriate.”

The Courts Administration Office said the initiative could be considered for other districts if it “proves effective”.


George Joseph is an investigative reporter with the WNYC / Gothamist Public Security Unit. You can send him advice on Facebook, Twitter @ georgejoseph94, Instagram@ georgejoseph81, and to [email protected] His encrypted signal phone and application number is 929-486-4865.



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