Gov. Kathy Hochul Wants to “Streamline” NY’s Discovery Law. Some Say She’s Trying to Kill It

Marty Tankleff spent almost 18 years in prison after being wrongfully convicted of murdering his parents as a teenager in their Long Island home.

His case turned on an unsigned confession, allegedly coerced but eventually disavowed.

But for years, records show, prosecutors in the 1988 slayings case neglected to tell him and his lawyers about witnesses who pointed to a possible hitman. And, he alleged, they also knew that the man he had suspected was behind the killings had a history of hiring people to commit violent acts.

Taken with other evidence, Tankleff said, he never would have been convicted.

That’s why Tankleff — who was let free in 2007, earned his law degree and currently teaches a class about exonerations at Georgetown University — was relieved to see changes to New York’s discovery process go into effect in 2020.

The discovery process comes before trial, allowing defendants to see what evidence has been gathered. The changes required prosecutors to share that evidence in a more timely manner by tying a defendant’s right to a speedy trial to discovery obligations.

Now he fears that could all be undone.

Gov. Kathy Hochul is backing a push by prosecutors to “streamline” those discovery laws with a slate of changes that are up for debate during this year’s legislative session.

The governor’s changes would allow less severe penalties and remedies if prosecutors don’t turn over evidence on time, and cases would not be automatically dismissed. Defense attorneys would have only 35 days to say prosecutors did not comply with their discovery obligations. And, under Hochul’s proposal, prosecutors would only be required to turn over materials that are “relevant” to the case — and no longer “related” — thereby lowering the requirements for documents.

Tankleff does not call those proposals mere tweaks.

“Rolling back the discovery laws is just horrible,” Tankleff said.

And pressure is mounting against Hochul’s push: More than 80 legal professors and practicing lawyers signed a letter stating that the proposal would essentially reverse the changes that took place in 2020.

“There’s no question that the proposals that the governor has put forward, clearly authored by prosecutors, would operate as a repeal of discovery reform as we know it,” said Martin LaFalce, an assistant professor of clinical law at St. John’s University School of Law.

Before the 2020 revisions, defense attorneys didn’t see the full range of evidence against their client until later in the pre-trial process. That limited their ability to mount an informed defense, they said, and to determine how best to respond to plea deals.

But Hochul said the changes, while well-intentioned, have so many complicated requirements for prosecutors that they lead to cases being tossed out on technicalities.

“We’re continuing to see a real urgent problem: a revolving door of criminals who are arrested and then let out on technicalities — free to commit crimes again,” Hochul said at a press conference earlier this year with prosecutors standing by her side.

Top prosecutors around the state, including New York City’s top district attorneys, insist Hochul’s proposals stay true to the intent of the reforms, while providing minimal yet important adjustments.

“It’s quite often that laws are passed and we have to go back and fine-tune them,” said Michael McMahon, who is the district attorney for Staten Island and president of the state District Attorneys Association. “We’re not saying, ‘Get rid of the reforms.’ We’re simply saying, ‘Let’s make it work for everybody.’”

The governor’s office did not respond to interview requests for this story.

What the 2019 discovery revisions allow
The campaign to reform the state’s discovery laws dates back years, but gained momentum amid public outrage over the story of Kalief Browder, a young Black teenager from the Bronx.

Police arrested Browder in 2010 for stealing a backpack. He maintained his innocence, and had to wait three years in Rikers Island to have his day in court because of prosecutorial delays. He eventually was released, but the psychological, emotional and physical damage from having undue time in jail was irreversible, criminal justice advocates and his family say: Browder killed himself two years later at his parents’ home.

Browder’s case served as the final push to implement the 2020 discovery revisions that were enacted alongside bail reform. The changes are technical, but, broadly speaking, make New York’s discovery laws comparable to that of 46 other states by requiring prosecutors to send evidence over to defendants within the timeline of a defendant’s right to a speedy trial. That means prosecutors have to hand over evidence within 90 days for misdemeanors, and 180 days for felonies not including homicide.

The revisions include a non-exhaustive list of 21 kinds of materials that prosecutors must share during the discovery period.

LaFalce, the St. John’s professor, echoed other public defenders in likening the state’s open discovery system before the changes to “blindfold” laws.

“We often would not receive evidence until the day of trial or the day before trial, and there would be a scramble to pour through reams of documents that prosecutors turned over,” LaFalce said. “Trying to defend yourself in a system that isn’t transparent, in a system that doesn’t fully disclose the evidence that prosecutors and law enforcement possess, creates a culture of despair and creates a culture where it’s incredibly difficult to prepare a defense.”

The changes to discovery helped LaFalce and his clinic quickly clear at least four clients facing criminal charges within the past two years.

That includes Ramona, who asked to be identified only by her middle name because she is a survivor of domestic violence and fears for her safety.

Ramona never expected when she married her boyfriend of three years that their relationship would turn turbulent. But her husband-to-be was applying for his Permanent Resident (Green) Card. And the moment they got married, she alleged, he rushed to sign a home lease and changed her various bills to his name.

“Nobody takes their wife on the first day (of being married) to get a home lease and make her sign it,” she said. “He was just doing everything for his papers, his Green Card.”

For months, LaFalce and Ramona assert, she endured physical and verbal abuse from her husband and in-laws, who often allegedly told Ramona that her face “looked like a dog’s.” The ongoing clashes culminated in an argument last July in which she said she threatened to divorce her husband, and he allegedly punched her in the mouth.

She called 911 twice, but police did not respond. Shortly after, her niece called 911 saying Ramona threatened her with a knife. It was only then police came to the family residence and arrested Ramona for the alleged threat. She said she was fired from her job when her employer learned of the arrest.

“I was lost,” Ramona said. “I couldn’t even eat properly. I couldn’t even sleep.”

But LaFalce and the clinic realized through discovery materials that they received that the niece’s answer kept changing when asked when the alleged incident occurred. The niece ultimately said that Ramona threatened her on July 6, 2024 in New York City — but Ramona said she was traveling from western New York to the city that day.

The clinic subpoenaed and got GPS records of Ramona’s cell phone location that corroborated her alibi, and prosecutors dismissed the case.

“We wouldn’t have been able to spot that as quickly had it not been for the obligation for the prosecutor to turn over discovery,” LaFalce said.

Prosecutors: Discovery reform “destroyed the system”
Prosecutors, though, say the 2020 changes create unreasonable demands.

“Some of the things that we’ve had dismissals over are just embarrassing,” said Andy Warshawer, deputy chief of the Trial Division at the New York County District Attorney’s Office.

Warshawer and other prosecutors say that the current laws require a litany of evidence and materials to be turned over that sometimes have no relevance to the case at hand, yet lacking that evidence can get a case thrown out — even if prosecutors do not intentionally withhold information and instead are exercising due diligence. They point to things like forms chronicling a defendant’s location while in custody, or years-old calibration reports for a breathalyzer machine, or audit logs for policy body-worn cameras.

“The problem is this: The amount of stuff that we’re supposed to get and how ridiculous it is,” Warshawer said. “It’s the addition of all this kind of nonsense litigation. … It’s just destroyed the system.”

Gov. Hochul received advice from prosecutors in crafting proposal
The governor agrees with many of Warshawer’s points and even thanked prosecutors for their guidance as she wrote her proposals, which she unveiled in January as part of the state budget.

“Their advice, their counsel, their tweaks to laws, or whole ideas for laws are really important,” Hochul said. “I want to tell them I am grateful for their partnership.”As Hochul sees it, the discovery reforms gave way to unintended “loopholes,” and her proposals would close them: Prosecutors would no longer have to get a court’s approval to redact materials that reveal private information about individuals.

But her proposals go further than mere efforts to “streamline” the laws, LaFalce and others said. Prosecutors would also have the right to determine which evidence is relevant to a defendant’s charges, meaning pieces of evidence could be withheld or redacted.

The proposals also include a provision that would make prosecutors no longer responsible for evidence in police custody — a requirement that went into effect in 2020. If the proposal were to pass, police could choose to withhold evidence, and defense would have little recourse from either police or prosecutors, opponents to Hochul’s proposals say.

And, if the reforms are adopted, future cases would be dismissed only if the defense could prove that evidence not being delivered in a timely manner was a result of prejudice. Additionally, judges could assign less severe penalties if prosecutors are found not to have acted in good faith or with due diligence in attempting to turn over evidence.

But in a letter to state House Speaker Carl Heastie and Senate Speaker Andrea Stewart-Cousins, a group of lawyers and legal professors pleaded with lawmakers to not accept the proposals.

“As scholars who teach, study, and practice the law, we train students to be ethical lawyers for the public interest, and we document how systems can deny people human dignity, entrench racial inequality, and drive convictions in cases where people are factually innocent,” the letter stated. “Those concerns motivate our opposition to Governor Hochul’s proposal, which would gut New York’s 2020 discovery statute in its relative infancy, reverse the progress New York has made towards transparency, and return to an era where guilty pleas were secured by coercion, not evidence.”

Public defenders argue established case law shows the claim of dismissals on technicalities is unfounded; that prosecutors need only demonstrate they exercised due diligence in sharing evidence. But the proposals, if enacted, could allow the prosecution to delay discovery and effectively stop the speedy trial clock.

“This is precisely the abuse that occurred in Kalief Browder’s notorious prosecution,” the opponents wrote in their letter.

Does discovery reform lead to higher dismissal rates? Does it matter?
So the question remains if the prior discovery revisions led to higher dismissal rates, or not. The answer is hard to find.

While data from the Office of the Court administration track dismissal rates for felonies and misdemeanors, it doesn’t show whether a dismissal was because of a failure to fulfill discovery obligations or otherwise.

Forty-three percent of cases tried in lower courts for misdemeanors and other low-level offenses were dismissed in 2019, before the reforms were enacted. That rate jumped to 55% in 2024. The jump reflects a shift in New York City, as rates outside the city remained nearly the same. When it comes to felony cases, 10 percent were dismissed in 2019, and 11% were tossed in 2024.

Some have blamed NYPD for the higher rate of misdemeanor dismissals, claiming the department is slow to turn over evidence.

An analysis of 300 cases in New York by research and advocacy organization Scrutinize appears to support the claim, finding judges tossed out cases primarily because prosecutors fail to meet “basic evidentiary obligations” — such as “ignoring discovery requests for months or choosing to withhold evidence,” the report states.

“They are not dismissed due to trivial errors or defense tactics.”

State lawmakers push back on Hochul’s proposal
The debate over discovery law changes is being held behind closed doors and dividing Democratic lawmakers.

State Sen. Zellnor Myrie, D-Brooklyn, and Assemblymember Micah Lasher, D-Manhattan, are proposing a bill that would give prosecutors independent access to police records and evidence, cutting out the step of police transferring documents over to prosecutors.

And both the Democrat-controlled state Senate and Assembly did not put the governor’s proposals in their budgets, which were released Monday. That the proposals were omitted suggests the chambers are either reluctant to back the governor on the issue, or do not want to negotiate the policy matter during state budget talks.

The latter is the reason Assembly Speaker Carl Heastie gave for why his budget proposal was silent on the matter. But he also suggested he was concerned that parts of the governor’s proposals — including the right for prosecutors to determine what evidence is relevant to a case — would roll back the 2019 reforms.

“I don’t wanna negotiate this outside of the members,” Heastie said, “but judges should have a little more of a say, because if you allow the district attorneys to decide what’s relevant and related, we’re back to having DAs make the ultimate decision.”Email

Story by Jeongyoon Han/ New York Public News Network
Jeongyoon Han is a Capitol News Bureau reporter for the New York Public News Network, producing multimedia stories on issues of statewide interest and importance.

Image: New York Gov. Kathy Hochul spoke at a news conference in January outlining her proposal regarding discovery law. She was surrounded by the state’s top district attorneys and prosecutors who are endorsing the proposal. (Credit: Don Pollard/Office of Governor Kathy Hochul)

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