No reasonable lawyer would argue that discovery in criminal cases in New York wasn’t a disaster before. It was a nightmare. The statutory disclosure was minimal and damn near worthless. It wasn’t until the eve of trial, if that, that you would get any discovery that mattered, and by then it was far too late to make use of it. More to the point, since most cases were disposed of by plea, it never happened.
You never saw the Brady material before copping a plea. Hell, you rarely saw Brady material if you went to trial. The prosecutor’s response to the defense demand for Brady was invariably “the prosecution is aware of its duty under Brady and will comply should any such material exist.” There was never any Brady, at least as far as the prosecution was concerned. So if they decided it doesn’t exist, there was nothing to turn over. No problem.
But then came discovery reform as a consequence of the “awakening” of a nation to police misconduct and the Trump-induced shift to a Democrat Senate in New York. Reform? On the one hand, about time. On the other hand, it wasn’t the change we would have expected, based on what earlier reform commissions concluded would serve everyone’s interest.
It went a lot further, or perhaps orthogonal, than the reforms that had been sought for decades. From the old nightmare of almost nothing, we went to full automatic, and within 20 days of arraignment for a defendant in custody and 35 days for “out” cases. The time frames made more sense for simple, low-level cases, most of the time. They were untenable for more serious cases where there was no comparable need for such an abbreviated time frame. Three months for discovery would have been glorious. But 20 days?
Sounds great? Sure, for the defense. But it was an overnight nightmare for the prosecution, as discussed here more than two years ago. Now, the New York Times figured it out as well.
New York City’s prosecutors are leaving in droves, citing pandemic burnout, low salaries and two intersecting laws that fundamentally changed the nature of their jobs.
“They just simply can’t do it anymore,” Darcel Clark, the Bronx district attorney, said in a Friday interview. “The money is not where it should be, and the work-life balance is just unmanageable.”
Classic Darcel, wrong and yet manages to come up with an excuse that’s unsympathetic. The starting salary for an ADA in Manhattan and Brooklyn is $72,000. For the Bronx, it’s $75,121, because you have to pay people more to be anywhere near Darcel. Put aside her sad tears for work-life balance (because isn’t that why someone becomes a lawyer, a prosecutor, to have tons of free time to play with the puppies?) and consider their impoverished state.
District attorneys say their employees are struggling. Ms. Clark said her office’s lawyers, inundated with paperwork, could make $30,000 more doing similar tasks for law firms, which might also let them work from home. “Why not do that?” she said.
Since Darcel asked, I’ll answer. While that might be true for NY County ADAs, which gets the pick of the litter as the premier prosecutorial office in New York, maybe even the nation, her office was the second team, the ones who didn’t make the cut for Manhattan. The reason they didn’t get Biglaw bucks is because they couldn’t get Biglaw jobs. Not that there weren’t some good lawyers in the Bronx, but they weren’t top of the class at HLS. They were doing pretty damn well at $75,121, and most new lawyers outside of Biglaw weren’t making anywhere near that number.
But the other reason to become a prosecutor was to learn to be a trial lawyer. ADAs tried cases. Until they didn’t. And the new discovery laws were the straw that broke the camel’s back. Not only did they no longer try cases, but they were mostly relegated to being paper pushing gophers.
The first law requires prosecutors to obtain and hand over hundreds of documents on many cases, a demanding task that can impede interviewing witnesses and otherwise preparing for court. A second law ties the handover of that material to the speedy trial clock, creating deadline pressure for prosecutors to collect all the material once charges are filed. (That law is known as Kalief’s law, named for Kalief Browder, a teenager who committed suicide after being held on Rikers Island for three years without a trial.)
For instance, if a defendant blew into a breathalyzer, a defense attorney is entitled to six months worth of calibration reports on that device. Prosecutors also have a continuing obligation to hand over a similar number of calibration reports filed after the defendant used the device.
The reformed discovery law did something that absolutely needed doing, to substantially expand the scope of what was discoverable, shift the burden off the defense to “request” it and onto the prosecution to provide it, and advance the time frame so it can be known before deciding whether to go to trial or cop a plea, and used in the preparation of the defense. And that was, without a doubt, a good thing.
But it did so in a way that was extremely difficult, if not impossible.* The ability to get cops and labs and transcripts together within the required time frame, not for one case but for the full caseload, turned prosecutors into “paralegals,” as one ADA told me, spending their days chasing down papers, calling people who absolutely had to turn over the necessary memo book pages, and then calling them again when they didn’t and disappeared onto the street.
You became a prosecutor to try cases, maybe because you believed you were fulfilling a necessary function in the legal system, and ended up spending your day gathering paper from players in a system that never liked you all that much to begin with and surely didn’t like you any better for constantly nagging them to turn in their reports. And then fielding phone calls from “victims,” cursing at you for not having gotten their perp sentenced to life plus cancer within a week after arrest.
Tough nuggies, you say? Well, yeah, except for the fact that there are bad dudes out there and we still need competent prosecutors to prosecute them.
The district attorneys are replacing their previous employees when they can, often exchanging experienced prosecutors for untested ones.
Most prosecutors do a three-year stint in the office. That’s their commitment, and after their commitment is up, and they’ve tried a few cases and gotten some courtroom experience under their belt, they become more competent lawyers and a marketable commodity to a law firm where they make the money and enjoy the work-life balance they deserve. Then there are lifers, the ones who move into supervisory roles and do the heavy cases, the high-profile work that gets their faces on the evening news.
Without these experienced prosecutors, who tries the cases of defendants who should be convicted? Hell, who tries anything, as the n00bs can’t try their way out of paper bag, even with the cops and snitches (and the occasional judge) in their pocket. Discovery was terrible before, but without a corps of prosecutors capable of doing the job when and how it should be done, fixing one problem gave us another problem that could end up being far worse in the long run. We were in desperate need of discovery reform in New York, but the changes overshot the mark and are unsustainable if we are also in need of competent prosecutors.
*While every case is different, some of the grievances about defendants being “coerced” into taking pleas before lab reports are back showing no controlled substance are a bit disingenuous. The defendant knows whether it was drugs or not, so it’s not as if he needs a lab report to know what the substance was. And if it was, and he cops a plea before the lab comes in, it’s not as if he did so under a mistaken belief.
Other scenarios will differ significantly, of course, but for the most part, people have a fair working knowledge of what they did and did not do. And, it needs to be noted, this presumes honest prosecutors who won’t lie, cheat or bury the Brady, for which no discovery mechanism is going to make things better.
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