There may be no better example for why New York needed criminal discovery reform than the 1991 wrongful conviction of Jeffrey Blake.
Blake was convicted because of one witness, Dana Garner, who said he and his girlfriend saw Blake fire a machine gun at a vehicle in Brooklyn, killing two men. Blake was actually having lunch at his sister's apartment at the time of the double murder and arrived back at work just 15 minutes after the shooting.
Prosecutors did not reveal Garner's identity as the key witness to Blake's defense attorney until the trial began, so the defense was unable to conduct its own investigation. Not until after Blake served roughly eight years behind bars did the truth fully come to light.
Defense investigators tracked down Garner's now ex-girlfriend who said she never witnessed the shooting. They also discovered evidence that Garner was not even in the state of New York when he allegedly witnessed the shooting.
Michelle Fox, the Legal Aid Society lawyer who handled Blake's appeal, described it in a 1998 New York Times article1 as "a case of a lifetime . . . that has been haunting me for six years."
During Garner's deposition for Blake's wrongful conviction lawsuit, he claimed he had been fed details by police and pressured to identify Blake as the shooter. Blake's case later settled for $1.2 million.
The Blake case is just one of numerous examples over the years illustrating what could have been prevented if New York had a fairer and more reliable system of criminal discovery.
Often called the blindfold law, defendants routinely received limited information, which was turned over so late that it became virtually impossible for the defense to properly investigate, obtain any potentially exculpatory evidence, fairly weigh a guilty plea offer, or develop an effective trial strategy.
But on Jan. 1, 2020 this practice, long considered a tactical advantage for prosecutors in New York, will no longer be allowed. The New York State budget for fiscal year 2019-2020, approved on April 1, included discovery reform as well as bail and pre-trial detention reform and improvements ensuring the right to a speedy trial.
Now both prosecutors and defense lawyers will be required to share information in their possession well in advance of trial. Specifically, prosecutors must share evidence within 15 days of a defendant's arraignment and defendants will be allowed to review all evidence in the prosecution's possession prior to pleading guilty to a crime.
This includes all written or recorded statements, grand jury testimony, witness names and contact information, expert opinions, all tapes and electronic recordings including 911 calls, photos, scientific tests, mental evaluations and other tests and exams, and any promises made to testifying witnesses.
If prosecutors are unable to meet that deadline, they may have an additional 30 days to turn the evidence over to the defense. Once the defense receives a certificate of compliance from the prosecution, they must turn over their own discovery materials to the prosecution within 30 days.
In an effort to alleviate concerns from longtime critics of discovery reform, the legislation seeks to protect victims and witnesses from intimidation and other forms of coercion by providing prosecutors with the ability to petition a court for a protective order. According to lawmakers, the order will enable the shielding of identifying information, when necessary, to ensure victim and witness safety and the sanctity of the judicial process.
Seymour W. James, Jr., president of the New York State Bar Association in 2012-13 and a criminal defense lawyer for over four decades, prioritized criminal discovery reform during his term and created the Task Force on Criminal Discovery. The task force issued a report2 in 2015 urging large-scale reform of the state's criminal discovery rules.
"I had seen the problems lack of discovery caused for defense attorneys and their clients," said James, who is now a partner at Barket Epstein Kearon Aldea & LoTurco in New York City. "I felt it also contributed to wrongful convictions because attorneys didn't have adequate information to investigate cases and when they did get it, it was too late to investigate. Witnesses may not have been there anymore; memories fade as time goes on."
James said he was "thrilled" to see the state Legislature enact criminal discovery reform. He said many of the main criminal discovery reforms in the legislation were in the task force's report. In fact, he noted that the legislation actually went further than some of the recommendations made in the report.
"I think the task force report actually sparked some discussions within the Legislature and the Governor's Office," said James. "There had been periodic discussions the last couple of decades about discovery reform, but the report took it to another level and got the parties looking carefully at the issues. To see it actually bear fruit was quite rewarding."
James said the vast majority of criminal cases are resolved through a plea bargain. He said the new law will allow defense lawyers to help their clients make more informed decisions regarding plea deals without costly delays now that they will have access to the state's evidence.
"Attorneys were being forced to advise their clients about whether it was in their interest to take a plea without having adequate information," said James. "Unfortunately, because of the harsh penalties that can be imposed after a trial conviction as compared with a plea deal, even those defendants who were innocent were tempted to take the plea offer and not risk going to jail for 25 years."
Previously, New York's criminal discovery laws were more restrictive than most states, including all of the other states in which the 10 largest cities in the U.S. besides New York City are located. Further, Louisiana, South Carolina, and Wyoming were the only other states that prevented criminal defendants from learning witness identities before a trial began.
Some jurisdictions, including Kings County, voluntarily offered less restrictive "open-file" discovery but by and large most did not. Additionally, no states have enacted open discovery rules, only to later go back and limit the information made available to the defense.
In its 2015 report, the task force was mindful of the safety concerns of witnesses and believed the recommended protections struck the right balance between protecting witnesses and affording defendants the information they need to prepare their cases. The legislation that ultimately passed included protective orders as recommended by the task force's report.
New York's restrictive criminal discovery rules stood in stark contrast with its liberal discovery in civil proceedings. Ironically, New York has long embraced early and open discovery in civil matters under the rationale that surprise is undesirable in litigation and that both parties should be entitled to know and develop all the relevant facts.