Read the full piece in New York Focus
A police officer arrests someone, claiming they saw them commit a crime. The person didn’t do it, and the cop’s body camera footage doesn’t match the narrative in the police report. But the defense doesn’t know that.
Until recently, the defendant’s lawyer wouldn’t have been able to watch the exonerating video while helping their client build a case. Prosecutors didn’t have to share most of their evidence with the defense — a process known as discovery — until right before trial.
“As you’re about to start picking a jury, the [prosecutor] would hand you a stack of papers — hundreds of pages, possibly more — and drop it on the table,” said Bret Taylor, treasurer of the Association of Legal Aid Attorneys, a New York City-based public defender union. “And you would just have to start frantically reading through it before the trial began.”
A reform law that went into effect in 2020 established “automatic” discovery procedures to make prosecutors share evidence in a matter of weeks, giving defendants a clearer picture of the case against them. But taking advantage of the new process requires resources from both sides, since the information — which can add up to gigabytes for a single case — needs to be exchanged and processed.
Prosecutors have been vocal about the work the change demands, even partially blaming the reform for increasing job turnover. The state took their concerns seriously: Governor Kathy Hochul dedicated $40 million in last year’s state budget for prosecutors to implement discovery reform, and she has proposed renewing that funding stream this year — plus $47 million more for district attorneys’ offices to hire “hundreds of new prosecutors.”
But Hochul has never earmarked new state money for criminal defense. She rejected a request from public defender organizations for parity funding, inflaming an already tense relationship between the increasingly tough-on-crime governor and those tasked with representing low-income criminal defendants.
“If we can’t access the discovery and there’s no time to review it, then there’s no point in having these laws,” said Yung-Mi Lee, president of the New York State Association of Criminal Defense Lawyers and staff attorney at Brooklyn Defender Services.
The dispute comes at a watershed moment for public defenders across New York state. The chaotically organized public defense system is at the late stages of a statewide overhaul aimed at reversing a decades-long crisis of underfunding, understaffing, and lack of oversight. But longstanding issues have been left out of that revamp. And public defense offices are still getting hit hard by the economy-wide worker exodus, worsened by high workloads and lower salaries than their prosecutor and private practice counterparts. When over 1,000 members of the Association of Legal Aid Attorneys picketed earlier this month, they aimed complaints at their bosses and government officials alike.
“We don’t really have a seat at the table with the government funders,” said Taylor. “And there’s the macro issue of governmental funding, which has been inadequate for decades.”
Public defenders have now turned to the state legislature, asking for $127 million to “match” the prosecutors’ share of the budget, which is due April 1. The Senate and Assembly majorities didn’t respond to New York Focus’s questions about their plans for discovery reform funding.
In response to questions from New York Focus, Hochul’s office sent a repeatedly used statement: “Governor Hochul’s Executive Budget makes transformative investments to make New York more affordable, more livable and safer, and she looks forward to working with the legislature on a final budget that meets the needs of all New Yorkers.”
Hochul has framed her prosecution-friendly approach to budgeting as an effort to “restore the effectiveness of the continuum of the criminal justice system.” Public defenders assert that she’s ignoring a key part of that system: them.
“It just continues the decades-long imbalance between the prosecution and the defense,” Taylor said.
Chris Gelardi 