Prosecutors struggling with new discovery laws

PHOTOGRAPHER: Erica Miller

Saratoga County District Attorney Karen A. Heggen stands beside office administrator Courtney Zalucky at her offices on Friday.

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BALLSTON SPA — Local prosecutors are racing to keep pace with the state’s new criminal justice reforms.

Nearly a month into the law that scrapped cash bail for misdemeanors, non-violent felonies and some violent felonies, district attorneys are grappling with the skyrocketing clerical work associated with the now-mandatory expedited release of all evidentiary materials.

Prosecutors must now share evidence, known as discovery, within 15 days of arraignment.

“This is the most significant change to the criminal justice system in my career,” said Saratoga County District Attorney Karen Heggen, who has spent 27 years as a prosecutor.

Her office handled approximately 3,000 misdemeanor arrests in 2018, including DWIs, criminal mischief and seventh-degree criminal possession charges.

The “vast majority” were resolved quickly in local court, Heggen said, and the full discovery process was conducted just 5 percent of the time.

“In the last three weeks, my office has opened 300 new files on top of the workload we were already doing,” she said.

Staffers are working nights and weekends to keep up, a pace Heggen called “not sustainable.”

Law enforcement agencies and crime labs are also under pressure to provide evidentiary materials, which include witness lists and police reports.

The reforms, said Schenectady Police Chief Eric Clifford, will “erase the gains we’ve made in police operations and efficiencies that we have established in our systems.”

Prosecutors in Schenectady County are grappling with similar issues.

“Our ability to comply with the requirements is very difficult,” said District Attorney Robert Carney.

ELIMINATING INEQUALITY

As the new laws took effect at the beginning of this year’s legislative session, repeal has been a near-singular focus for law enforcement officials and Republicans.

Each day, lawmakers highlight the latest suspects who have been arrested and released immediately afterwards — only to re-offend hours later, presenting a perceived threat to public safety.

“Violent criminals and vicious gangs like MS-13 are known to not only intimidate witnesses but also to murder them and their loved ones,” said state Sen. Jim Tedisco, R-Glenville, who co-sponsored legislation this week to shield the identities of first responders from being released as part of the discovery process.

Civil rights groups and progressive Democratic lawmakers contend critics are sensationalizing the issue.

The New York Civil Liberties Union accused district attorneys and legislators of attempting to “undercut the new law through fear and divisive tactics.”

“I think a lot of this is an effort to spread misinformation and dismiss the problems this new law is seeking to address, which is problematic,” said Nicole Triplett, policy counsel with NYCLU, which is opposed to any rollbacks.

The reforms will correct long-standing inequalities baked into the criminal justice system that disproportionately affect minorities and the poor, Triplett said.

“There’s a process that our Constitution has prioritized, which centers on the principle that people should be treated innocent before being proven guilty,” she said.

While Saratoga County has long relied on a system of “voluntary discovery,” Heggen said, prosecutors statewide were technically permitted under the previous system to withhold information until just before trial.

Advocates, including the Center for Court Innovation, believe the reforms will allow defendants to better prepare their defense, leading to fewer prison or jail sentences. And an accelerated timeline will result in shorter jail stays for defendants held in pre-trial detention.

“We’re getting [evidence] more and we’re getting it quicker,” said Schenectady County Public Defender Stephen Signore. “The defendant will know more about his case at an earlier point in time.”

Defendants were previously forced to negotiate plea deals without having access to all of the evidence against them, Signore said.

“It doesn’t force our clients to make plea bargain discussions in such a short window without knowing what the district attorney has,” Signore said.

Heggen believes the increased workload will compromise her office’s ability to negotiate plea deals with defense attorneys, which will lead to more cases adjudicated through the trial process.

“That’s where the discovery requirement is starting to shutter the ability to do that type of work because there’s not enough time,” Heggen said.

New York previously ranked at the bottom of the pack nationwide for discovery openness, Triplett said, and other states that have recently implemented similar reforms, including Texas and Virginia, have adjusted.

“What we should do is focus on implementing the law so that any complications we’re dealing with are resolved,” Triplett said. “There’s been tremendous progress made and we want to make sure people are aware of that. To retreat now is to retreat on that promise.”

In response to the highly-publicized stories about a revolving door of criminals roaming the streets, she agreed public safety should be paramount.

But the state must bolster support for mental health services, housing and drug treatment programs to serve that population, she said.

“We cannot pretend rolling back the bail law will make us safer,” she said.

NO RELIEF IN SIGHT

Prosecutors are calling for the state to provide additional funding for staffing and technology.

Carney said his office is exploring the feasibility of installing a direct fiberoptic link between the city Police Department and his office because existing infrastructure is crash-prone and has trouble transporting large files, including body-camera footage.

But he contended the reforms are an unfunded mandate.

State officials counter the reforms will lead to a decline in jail populations, which would free up funds that county governments can then reallocate elsewhere.

Heggen questioned the ultimate impact on jail populations.

Looking at a pre-New Year’s Day survey of the county jail population, she flagged 11 suspects out of between 130 and 140 who would qualify for release, she said.

“This huge drop in jail population is not happening,” she said. “The vast majority of people in county jail are there because they have been sentenced.”

Carney called potential savings negligible, “unless they lay off a bunch of [correction officers], which I don’t think people are ready to do.”

Counties can also boost spending to offset costs.

Saratoga County has budgeted more than $302,000 for additional personnel in the Sheriff’s Department and the District Attorney’s Office.

“There may be other unknown and unanticipated expenses that we will incur as a result of this unfunded mandate,” said county Administrator Spencer Hellwig, who anticipated the Sheriff’s Department will have to spend additional resources to track down suspects who fail to appear in court.

“Staffing levels at the county jail are not anticipated to change as they are set by the state Commission of Correction,” he said.

Schenectady County has allocated $6,425 for tech upgrades in this year’s budget and nearly $167,000 for three staff positions and additional stenographic services.

While there were no additional funding requests resulting from bail reform included in the county Sheriff’s Department budget, officials said they’re evaluating changes and needs as they arise.

BUDGET COUNTDOWN

The pressure mounts as Gov. Andrew Cuomo revealed his 2021 executive budget proposal on Tuesday.

The state Division of Budget didn’t respond for comment when asked if the proposed spending plan contains any additional funds to aid local governments with implementing the reforms.

With the legislative session underway, lawmakers in the state Assembly and Senate continue to debate possible amendments, including the ability for judges to use discretion on which defendants should have to post bail to be released.

While several proposals by Republicans to roll back the changes have already failed to gain sufficient support, centrist Democrats have indicated they are open to potential changes.

Senate Majority Leader Andrea Stewart-Cousins, a Democrat, is meeting with Long Island district attorneys and law enforcement officials this week to glean input, Newsday reported.

Cuomo alluded to potential modifications in his budget address, but did not provide additional details, calling reform an “ongoing process.”

“We need to respond to the facts, but not the politics,” Cuomo said. “And we need to act on information and not hyperbole. Let’s understand the facts, understand the consequences, discuss it intelligently, rationally and in a soluble way and then let’s make the decisions that we need to make, and we will do that as we move forward over these coming weeks.”