Editors’ Note: This essay has been updated to reflect a Correction.
During the recent Manhattan trial of Daniel Everret for the murder of 13 year-old Scotty Scott in Harlem in 2008, evidence came to light that is harrowing and all too frequent in our system. The defendant, awaiting trial in a city jail, was recorded on the telephone instructing his fellow gang members on how best to intimidate the witnesses against him so as to prevent their incriminating testimony.
In that case, the defendant asked his friends to recruit “goons” to scare witnesses into changing their testimony, and we were lucky that no one was hurt and the testimony went forward. But in many cases in Manhattan and all over our state, witnesses are frightened, asked to lie, or asked to tailor their accounts so as to minimize their impact on the defendant at trial.
And that is only for those who come forward at all; prosecutors around the state know that for every witness that comes forward, many would not think of giving information to authorities because they know that their identities and the substance of their testimony will be disclosed during the process of criminal discovery.
These problems provide a crucial backdrop to the current debate over expanding criminal discovery in New York. Increasingly, the limits on our discovery provisions are under attack from various stakeholders in the criminal justice system, who suggest that expanding discovery laws would make our system fairer and more efficient.
When I ran for district attorney in 2009, I supported the expansion of criminal discovery through statutory reform. I still do. But any such effort should take into account the serious problem of witness tampering of all kinds.
The ideal forum for the reform effort is the New York State Justice Task Force, created by Chief Judge Jonathan Lippman in 2009 to explore ways to minimize the risk of wrongful convictions. The task force, co-chaired by Westchester District Attorney Janet DiFiore and Court of Appeals Judge Theodore Jones, is set to tackle discovery reform as its next project beginning this summer. Made up of policy leaders in prosecution, defense, academia, policing and the judiciary, the task force has already produced thoughtful recommendations on DNA evidence, eyewitness identification and recording of interrogations.
Advocates of various proposals for expansion cite basic fairness: after all, how can a defendant meet the charges against him without knowing what the evidence is? More to the point, how can a lawyer truly be effective if she learns about most of the evidence on the eve of trial, and the rest on the witness stand?
Advocates also assert that more open discovery makes for a more efficient system, because defendants who know at an early stage that the case against them is strong will have a greater incentive to work out a disposition earlier, rather than drag out the proceedings.
With respect to the problem of witness tampering, these advocates point to the existing ability of judges to grant protective orders that either allow the prosecution to withhold discovery from the defense, or require defense counsel to withhold certain information from their clients.
Unfortunately, there is little evidence beyond anecdotes that enhanced discovery increases the efficiency of the system, and some evidence that it slows down proceedings, which must be adjourned for discovery to be provided. And, because no one, even the most thoughtful defense advocates, can accurately predict which cases will result in untoward behavior, the ever-ready suggestion that prosecutors can get protective orders when they have a concern is, in the end, no answer at all.
Beyond that, even protective orders that are granted are sometimes little more than paper tigers. Earlier this year in Schenectady, a defendant was indicted for conspiring to kill and intimidate witnesses in a murder case. How did he know whom to intimidate? In spite of a pending protective order, he received witness statements and a cooperation agreement that had been provided in discovery to the defendant on trial in the murder case. Within days, that paperwork was posted in local bodegas and on Facebook.
And in Manhattan, we are still haunted by the ordeal more than 20 years ago of Harold Bates, whose name appeared on a witness list and who was shot in the head a mere seven hours after my office complied with a court order to provide the defense with the names of the witnesses in a murder trial. Although Bates was killed, his murderers were successfully prosecuted after the key witness to his murder was herself shot in the head to prevent her testimony. This time, the witness miraculously survived and went on to testify after having been relocated.
This is not meant to sensationalize. As with all questions of policy, these considerations will have to be balanced against the cost of providing enhanced discovery, both in terms of the risk that evidence will be tailored, altered, or become unavailable, and in terms of the actual resources involved in seeking out and producing copious evidence in a system that, in New York County alone, handles more than 100,000 cases per year, the substantial majority of which are disposed of without trial.
As the task force begins its proceedings, prosecutors around the state might bear in mind that New York is among the most restrictive states in terms of providing criminal discovery. As a starting point for discussion, I suggest a few measures where I believe reform could benefit the cause of fairness, without imposing undue societal costs.
Basic case-management proposals, such a mandated pretrial discovery conference with the court, would help the judge facilitate any search for Brady or Giglio material suggested by defense theories. Similarly, discovery as of right of property the state intends to introduce at trial in its case-in-chief,1 would put New York in line with federal discovery rules, and could further the efficiency goals raised by defense advocates without placing an undue burden on the prosecution.
And, so long as the identities and statements of non-law enforcement witnesses remain protected, early discovery of police reports, memos and notes, with due regard for ongoing investigations and confidential informants, should not pose a threat to public safety.
As we debate discovery reforms going forward, extreme positions ought not to be tenable. They will neither enable us to achieve consensus, nor promote the twin goals of promoting public safety and achieving fairness in our justice system. These are goals I believe we all share.
Cyrus R. Vance Jr. is the New York County District Attorney.
1. See People v. Colavito, 87 N.Y.2d 423, 428 (1996) (duty to disclose discovery material “do[es] not require the People to locate and obtain evidence at any particular moment in the prosecution”).