On Wednesday, April 26, 2023, over 50 Public Defender offices and agencies from across NYS sent a letter opposing rollbacks to discovery laws. Read more below:

Full Letter (PDF)

Gotham Gazette Opinion: 

New York Can’t Put the Blindfold Back On: Legislature Must Reject Rollbacks to State Discovery Laws

by NYSACDL President Yung-Mi Lee & CDANY Mark Funk

April 24, 2023 

From the Article: 

One thing is clear: prosecutors and defenders acknowledge that for the discovery system to function as intended, more resources are needed for both sides. In 2022, we all met with Governor Hochul’s office to discuss solutions to a growing backlog of cases caused by the pandemic, and we agreed that more funding was needed for staffing and technology to collect, store, share, and review digital evidence.

Police and prosecutors also must agree to a uniform digital transfer system so that DAs aren’t gathering the evidence piece by piece from individual officers, delaying discovery. The refusal or inability to share files between police and prosecutors is no reason to overturn the law.

Despite our agreed-upon solution, prosecutors have suddenly pointed to a supposed increase in dismissals, citing their inability to comply with discovery as the primary cause. This is untrue. The current law has many “safety-valves” when DAs cannot fully comply with the law: DAs simply need to show that they started requesting the information early and that they did so more than once. Worth noting: their data is incomplete because the reasons for dismissals weren’t accurately tracked until the spring of 2022. It is also clear that the lengthy pandemic affected case outcomes, resulting in dismissals as a way to reduce the backlogs.  

Fulfilling the promise of a fairer criminal legal system requires firm commitment to the 2019 landmark law — not a retreat from it that will absolve prosecutors of their obligations and have devastating consequences for people awaiting trial. We urge state legislators to resist the governor’s and prosecutors’ attempt to weaken our discovery laws. Justice depends on it.

Read More Here: https://www.gothamgazette.com/130-opinion/11967-new-york-justice-blindfold-discovery-law

Public Defenders Call on the Legislature to Hold the Line on Discovery Reform – These So-Called Tweaks Would be Devastating

The Chief Defenders Association of New York issued the following statement of Past-President Laurette Mulry:

“New York is looking to take a dramatic step backwards in terms of justice reform, effectively denying thousands of New Yorkers statewide the right to review the evidence against them because New York City prosecutors think disclosure is too burdensome.

Governor Hochul and Albany insiders are trying to sell these rollbacks as tweaks - but don’t be fooled. The proposed rollbacks would eviscerate all of our hard work to bring New York’s law in line with the rest of the country.

New York used to have one of the most draconian and unfair criminal legal systems in the nation. Prosecutors were allowed to withhold evidence until the eve of trial, giving defense attorneys little time to prepare and forcing New Yorkers into taking plea deals without knowing the full scope of evidence against them. As a result, New York is third in the nation in terms of wrongful convictions.

That changed in 2019, when bold reforms to the discovery process were passed and definitive time limits were set for prosecutors to submit their case to the defense. These changes truly balanced the scales of justice. Now the legislature appears poised to roll these reforms back, caving to political threats from city prosecutors who should have been turning this evidence over for decades, as is the case in nearly every other state in the country.

Discovery reform is working in most of the state - but more resources are needed across the board. CDANY agrees that DA’s should receive more funding to achieve the ideals of discovery reform, and to address a backlog of cases in an overburdened court system. Defenders should likewise receive additional funding to review and meet reciprocal demands of discovery.

We can’t return to an antiquated system where accused people are denied evidence and their attorneys are flying blind until the last possible moment. Lady Justice wears a blindfold, but now Governor Hochul is trying to blindfold us.

In response to the rumored gutting of New York’s discovery laws, the Chief Defender Association of New York (CDANY) issued the following statement:

We are appalled but not particularly surprised to learn that certain district attorneys have waged a covert and duplicitous whisper campaign to effectively gut the historic, wildly successful discovery reforms passed in 2019.

These reforms were badly needed. Under the previous “blindfold discovery” regime, New Yorkers accused of crimes were forced to defend their cases in the dark and all too often, forced into coercive plea bargains with barely any knowledge of the evidence in the case. Unsurprisingly, under this regime, New York’s wrongful conviction rates soared to the third highest in the entire country. At long last, the 2019 discovery reforms took New York’s discovery practice into the 21st century and in step with 47 other states in our country.

To be clear, prosecutors have never been fans of these reforms. Our new system of transparency and fairness curtailed District Attorneys’ control of the criminal proceedings and ability to leverage pleas. Now, all discovery, including exculpatory evidence, is required to be turned over well in advance of trial. This means that individuals accused of crimes can fairly defend themselves, and are finally able to make life-changing decisions about whether to take a plea or go to trial equipped with all of the pertinent information. As defenders practicing across the state can attest, the impact has been transformative.

Indeed, implementing these reforms has required hard work from all stakeholders. Prosecutors complain that the burdens imposed by the 2019 reforms have overwhelmed their resources and capacity. We don’t disagree that it has been a challenge, as fairness always is. The change in law has required new technology, the creation of new workflow systems, and additional staff. That is why we have always supported the prosecutors’ campaign for more funding, resources and technology, just as they have supported ours.

Public Defenders Call on the Legislature to Hold the Line on Bail Reform –
We Can’t Go Backwards

(Albany, NY) – The Chief Defenders Association of New York issued the following statement of President Mark Funk:

“Governor Hochul is holding up the state budget to inflict crippling bail reform rollbacks – at the expense of every other policy issue in the state.

The Governor insists on rollbacks that would result in more low-income people deprived of their liberty pretrial, despite clear and overwhelming data that bail reform is working.

Rather than beginning budget negotiations by focusing on solutions that actually work to make our communities safer, like affordable housing, expanding access to mental healthcare and drug treatment, sealing of criminal records, and investments in quality legal representation, she is doubling down on the failed policy of mass incarceration. We can’t go backwards.

The Chief Defenders Association of New York is deeply grateful for the tireless advocacy by our legislative allies in the State Senate and Assembly who are holding the line against harmful rollbacks to bail or discovery reform. New York’s Chief Defenders stand with you.”

On March 22, 2023, CDANY joined the New York State Association of Criminal Defense Lawyers and the New York State Defenders Association in Albany for a Defender Advocacy Day focused on important items in the NYS Budget. Please see news coverage below:

New York Law Journal: Public Defenders Take Push for Funding to NY Capitol and Albany Courthouse

Advocacy for investment in public defenders took place on two fronts in Albany, with a court hearing and Capitol rally.

Brian Lee 

Times Union: Public defenders urge Legislature, Hochul to move on first pay raise in 18 years

Attorneys who represent low-income clients and children face mounting caseloads and a depleted workforce. A significant pay raise could change that, they say.

Raga Justin

CDANY Marks The 60th Anniversary of Gideon v. Wainwright

March 18 marks the 60th Anniversary of the landmark United States Supreme Court decision of Gideon v. Wainwright, which created the right to an attorney for poor people who are accused of a crime. As we mark this anniversary, the Chief Defender’s Association of New York wishes we could be celebrating New York’s well-funded, fair criminal justice system. But, the reality is no cause for celebration.

Sixty years after Gideon, New York’s commitment to public defense and a fair and just legal system is still lackluster at best. New York State only started providing some funding for indigent criminal defense as part of a settlement of a lawsuit that they vigorously fought against for seven years. For decades prior to this settlement, funding of this important state function was left solely to the 62 individual counties. And, the State still continues to deny its obligations. State funding is virtually nonexistent for parents in Family Court as well as dramatically underfunded for attorneys representing children. Currently, New York State is actively opposing three lawsuits that are seeking a raise in assigned counsel (18-b) rates for attorneys who represent poor people on an hourly basis -- rates that have not been raised in almost twenty years. This has resulted in a shortage of attorneys to take on cases in criminal and family matters, leaving the promise of Gideon an empty one in many counties and courts throughout New York.

In 2019, New York finally turned a corner with fundamentally fair changes in discovery practices, bail legislation and how we treat youth accused of crimes. Yet since then, fearmongers have been obsessed with undoing these much-needed and long-overdue changes that made our criminal legal system more fair. Rollbacks on these issues would be a mistake and would push New York’s criminal legal system further away from the principals espoused in Gideon.

Discovery is the process by which the district attorney shares the evidence gathered by police with defense counsel. Discovery is directly related to the promise of the Gideon ruling, justice for clients through meaningful representation by attorneys. Prior to 2020, people accused of crimes and their attorneys were forced to defend themselves without knowing what the evidence against them was until their trial started (or never if they accepted a plea bargain). New York’s discovery laws now ensure full and transparent sharing of police reports, scientific and video evidence and witness statements. This allows defense counsel adequate time to review and investigate their cases. In turn, attorneys can give their clients meaningful advice on such important decisions such as whether to plead guilty or go to trial. Even so, there is constant targeting of this law by prosecutors rather than simply complying with the mandate of the new law. We cannot go backwards on discovery reform, as it has genuinely reinforced the true meaning of Gideon, which is that without the advice of an attorney, an accused person cannot be guaranteed justice.

New York also cannot go backward on bail reform. The 2019 bail legislation has been a success. According to the Division of Criminal Justice Services and the Office of Court Administration, as well as a number of other sources, the percentage of people rearrested while out on bail has remained the same since the bail legislation took effect. No data supports the conclusion that fairness in bail is causing any uptick in crime. Changes to the bail laws has reduced needless incarceration, kept people employed and families together. Moreover, the improved bail laws are only beginning to impact the drastic racial disparities that exist in incarceration rates.

Sixty years after Gideon v. Wainwright, New York still has a long way to go to effectuate the underlying concept of that landmark decision, which is to make our criminal legal system fair and just. Too many people are under the impression that tough-on-crime policies and longer sentences make us safe. They don’t. Such policies are irreparably and unnecessarily damaging to communities by making it more difficult for people to obtain a job or reach their educational and personal potential. Low-income communities need more support services such as affordable day care, better health care, including access to mental health and substance abuse services, and more job skills training programs. We cannot afford to waste another sixty years to achieve a fair and just criminal legal system promised by Gideon.

CDANY Applauds NYS Assembly’s One House Bill Which Acknowledges
The Important Work of Criminal Defense Attorneys

The New York State Assembly’s budget proposal recognizes the importance of criminal defense attorneys in our criminal legal system. Mark Funk, President of the Chief Defenders Association of New York (CDANY), said “as we prepare to celebrate the Sixtieth Anniversary of Gideon v. Wainwright, the landmark right to counsel case, it is encouraging that the New York State Assembly recognizes the importance of criminal defense attorneys in New York. The Assembly’s proposal regarding an increase in assigned counsel (18-b) rates, rates that have not been raised in twenty years, recognizes the importance of quality representation for poor people.”

This rate increase, if adopted into the final budget, will increase the number and quality of attorneys who are willing to represent indigent clients in the criminal and Family Courts of the State of New York. With no pay raise for assigned attorneys in the past twenty years, many experienced, qualified attorneys have stopped accepting assigned cases. The smaller pool of attorneys and resulting higher caseloads affects the quality of representation poor people receive.

This rate increase will put our State closer to the promise of the Gideon decision, which is fair, just and equitable criminal legal system.

CDANY Applauds Senate One House Bill Which Acknowledges
The Work of Criminal Defense Attorneys and Adds Funding for Discovery Reform

On Tuesday, March 14, Senator Stewart-Cousins released a Resolution in response to the 2023-2024 Executive Budget submission expressing the position of the New York State Senate relating to the 2023-2024 New York State Budget. Mark Funk, President of the Chief Defenders Association of New York (CDANY), an association of Chiefs of indigent defense providers and Public Defenders statewide, said “we greatly appreciate that the Senate recognizes the importance of the work of public defense institutions in New York State with the addition of $47 million to support Criminal Defender services, plus an added $40 million to support Discovery Reform for Criminal Defenders. This funding, if allocated in the final budget process, will go a long way to equal the playing field with prosecutors who received similar funding in the Governor’s proposed budget.”

These allocations will fund reciprocal responsibilities of prosecutors and defense attorneys to provide timely disclosure of evidence pursuant to discovery reform enacted in 2019. Prosecutors and defense attorneys alike have borne the brunt of increased workloads due to the new law. Both sides have suffered attrition and recruitment issues due to the stress of discovery obligations. Additional funding will enable these organizations on both sides of the criminal justice equation to hire more staff, including paralegals who have provided support in fulfilling discovery duties.

“As we prepare to celebrate the Sixtieth Anniversary of Gideon, the landmark right to counsel case, it is encouraging that public defenders in New York get this recognition,” said Funk. “It’s long overdue.”

On March 13, CDANY President Mark Funk was quoted in the New York Law Journal about Public Defense Funding, specifically about the need created by discovery reform. 

Public Defenders Lobby for Funding Parity With Prosecutors - Brian Lee

PDs are asking Albany lawmakers for $132 million, which they say would mirror the allocations provided to the district attorneys this year and last year for which no funds were provided to the defense. They are planning to converge on the New York Capitol on March 22.

March 13, 2023 

From The Article: 

"Mark Funk, president of the Chief Defenders Association of New York, said discovery issues are more acute for public defenders.

'I’m not minimizing what the DAs have to do—they have to provide the information to us,” Funk said. “But we have to review it, and not only review it, but then review it with our clients and discuss it with them so they can make intelligent decisions regarding their case.'

'I think the burden is even more acute for us because we have to sit through those hours of body-cam footage or hours of surveillance videos and things like that,' he said."

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