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One of the most memorable legal advances in criminal justice reform in 2017 was the high court’s pronouncement of rules and procedures surrounding the timing of revealing evidence that may exculpate criminal defendants. By articulating specific guidelines for trial courts and the potential for sanctions against non-compliant prosecutors, New York is poised to implement sweeping procedural changes in 2018, but will the enumerated changes have true meaningful impact for criminal defendants?

The impact of the failure to disclose exculpatory evidence to a criminal defendant in a timely manner cannot be underestimated, as this necessarily precludes the efficient administration of justice and puts criminal defendants in a fundamentally unfair position. Recently, a criminal defendant, charged as a drug dealer, faced a potential prison sentence of 25 years to life if convicted of drug trafficking related charges. John O’Brien, “Ex-Prosecutor: Cayuga County DA secretly withheld key evidence in 15 cases,” (Nov. 2, 2016). However, the prosecution was in possession of a police report that they specifically withheld from the Grand Jury and from the defendant, which demonstrated that the defendant could only be convicted of misdemeanor drug possession. Id. The police report established that the defendant’s key role in the drug sale was that of a middle man, who received no benefits for bringing together the buyer and seller. Id. This police report provided the critical evidence to establish an agency defense. Id.

After the case had been pending for several months and on the eve of trial, the prosecution was ordered by the trial judge to disclose the police report that contained the exculpatory information to counsel for the defendant, who utilized the police report to successfully establish an agency defense at trial. Id. The jury acquitted the defendant of selling the drugs and instead, convicted him of misdemeanor drug possession charges. Id. The defendant was eventually sentenced to serve two years in a local jail. Megan Blarr, “Man acquitted of drug sales files federal lawsuit against Cayuga County, Auburn Officials,” (Sept. 12, 2017).

It was revealed that this was not an isolated incident, but instead part of the official practice of the District Attorney of Cayuga County. O’Brien, supra. It was alleged that in at least 15 separate felony drug cases, similar exculpatory information was withheld in express violation of the legal and ethical duty of every prosecuting attorney to seek out and turn over to the defendant all evidence favorable to the accused that is in the possession of any government official, including the police. O’Brien, supra; Brady v. Maryland, 373 U.S. 83 (1963); see also Emmet G. Sullivan, “How New York Courts Are Keeping Prosecutors in Line,” The Wall Street Journal (Nov. 17, 2017). This was an unfortunate example of a prosecutor ignoring this duty and deciding to withhold favorable evidence from the Grand Jury and the defendant in order to gain an advantage in a criminal prosecution. O’Brien, supra. The current system presents issues to a criminal defendant and their attorney when seeking all the evidence in the case. Beth Schwartzapfel, “Defendants Kept in the Dark About Evidence, Until It’s Too Late,” New York Times (Aug. 7, 2017). Often, defense attorneys complain that their requests for evidence are countered, delayed, or ignored. Id. In the past, legislation in New York has failed after New York DA’s expressed their opposition to requiring prosecutors to turn over evidence earlier. Id. Now, as the need for reform is evidence, New York has garnered efforts toward implementing legislation that would allow the judge, prosecutor, and defense attorney to unify in purpose to improve the criminal justice system. However, the practical effects of the legislation still carry similar consequences with little change.

On May 1, 2009, Chief Judge Jonathan Lippman of the New York Court of Appeals convened the New York State Justice Task Force to address the epidemic of wrongful convictions in New York State. Report on Attorney Responsibility in Criminal Cases, New York State Justice Task Force (February 2017). Current Chief Judge Janet DiFiore has continued the operation of the Task Force after her confirmation in the New York Senate. Id.

Throughout the years, the Task Force has made several recommendations but importantly, among those recommendations was revising existing discovery procedures in criminal prosecutions. Id. In addition, the Task Force found that the public had a perception that prosecutorial misconduct was responsible for a number of wrongful convictions. Id. In response, the Task Force issued the, “Report on Attorney Responsibility in Criminal Cases,” in February of 2017. Id. This Report found that the failure of prosecutors to properly disclose exculpatory evidence to criminal defendants as required by Brady, had resulted in several wrongful convictions in New York state. Id. Due to these findings, the Task Force agreed to a recommendation that judges in all criminal courts in the State issue an Order, which would allow that where discovery was requested by the defendant, prosecutors are required to disclose, in a prompt and timely manner, all exculpatory evidence and information to criminal defendants. Id.

Judges presiding over criminal cases have a responsibility to take action against unethical prosecutors and to exercise their supervisory authority to prevent Brady violations before they happen. Sullivan, supra. In this regard, by issuing discovery orders that mandate the timely disclosure of Brady material, a Judge has the power to hold prosecutors accountable for misconduct and disregarding the discovery order. Id. For example, a prosecutor can be held in contempt of court or subject to other judicial sanctions. Id. U.S. District Court Judge Emmet Sullivan has published an article where he discussed a case he presided over where the prosecutors specifically withheld exculpatory evidence that established the defendant could not be convicted of the crime charged. Id. After disclosure of the prosecutor’s misconduct, Judge Sullivan found himself “powerless” to sanction the attorney as he had not issued a direct written order requiring the prosecutor to abide by their ethical and constitutional obligations to disclose favorable evidence. Id.

In New York, Chief Judge Janet DiFiore has directed the issuance of two new Court Rules to address the serious concerns raised by the Task Force and those that advocate for a more efficient judicial system. The Court Rules, 22 NYCRR §§200.16 and 200.27, go into effect on Jan. 1, 2018. 22 NYCRR 200.16; 22 NYCRR 200.27. These Court Rules are aimed at requiring New York criminal court judges to issue an “Order to Counsel in Criminal Cases,” which will require timely disclosure of all evidence and information in the possession and/or control of the District Attorney’s Office, including information and evidence in the possession of the police and law enforcement officers, which is exculpatory or favorable to the defendant, at least 30 days prior to a felony trial, at least 15 days prior to a misdemeanor trial and at least 15 days before a suppression hearing. New York State Justice Task Force, supra. These rules look to improve the criminal justice system by encouraging transparency of evidence and creating a timeline for disclosure; a timeline which had not been created by Brady. In essence, the rules force prosecutors to invest time up front in their cases, know the evidence, turn over favorable material evidence, and make educated decisions. In practice, the power of determining favorable or exculpatory evidence falls on the prosecutor. The Order would make a reference to specific types of material information that could be required to be disclosed, including: (1) information that impeaches the credibility of a testifying prosecution witness; (2) information that tends to exculpate, reduce the degree of an offense, or support a potential defense to a charged offense; (3) information that tends to mitigate the degree of the defendant’s culpability as to a charged offense; (4) information that tends to undermine evidence of the defendant’s identity as a perpetrator of a charged crime; and (5) information that could affect the ultimate decision in the defendant’s favor on a suppression motion. New York State Justice Task Force, supra. The “Order to Counsel in Criminal Cases” requires favorable information be disclosed whether it is recorded in tangible form and irrespective of whether the prosecutor credits the information.

The new Court Rules and the “Order to Counsel in Criminal Cases” represent a change to the existing rules and procedures for the disclosure of information the prosecution is required to disclose to a criminal defendant pursuant to Brady.

However, many in the criminal defense bar believe these new Court Rules do not go far enough to effectively address the underlying problems related to prosecutors’ failure to turn over Brady material in a prompt and timely manner. This is the case for individuals who resolve criminal charges through plea bargains. Plea bargaining takes place and plea deals are normally entered into well before any disclosure obligations under the new Court Rules are triggered. This raises a significant concern as the failure to disclose exculpatory evidence prior to the completion of the plea bargaining process necessarily precludes the defendant and defense counsel from evaluating whether going to trial would expose facts that preclude the prosecution from proving every element of the case beyond a reasonable doubt. With the new rules in place, a criminal defendant is still gambling before acquiring all the evidence. Justice should not be reduced to a form of “let’s make a deal” since how to play one’s hand does not accomplish much in the way of deterrence, rehabilitation, or retribution.

The above issues would not arise if the prosecution was required by Court Order to disclose exculpatory evidence within 10 days of its discovery. Such a system would truly allow every defendant, regardless of the particular stage of the criminal prosecution, to receive the very information that the Task Force identifies as being critical to prevent wrongful convictions. Judges should (1) conduct conferences to determine that accused individuals understand consequences of pleading guilty before accepting the plea, (2) question plea circumstances to determine voluntariness and fairness, and (3) establish on the record that before acceptance of the guilty plea, a prosecutor has provided complete discovery to the defense. Andrea M. Marsh, Judicial Responsibility for Justice in Criminal Courts, National Assoc. of Crim. Defense Lawyers, 64-5 (2017).

Elizabeth S. Kase is a partner at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, where she serves as chair of the criminal law practice group and co-chair of the medical marijuana law group. Brian T. McCarthy is an associate at the firm, specializing in criminal law. James Wighaus, a Hofstra Law Clerk, contributed to the preparation of this article.