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NYC criminal court won't be fair until all evidence is shared, advocates say

How and when prosecutors release evidence in criminal cases in New York City needs to be reformed, a group of advocates say.
New York state senator Jamal Bailey speaks at a Discovery for Justice rally outside Manhattan Criminal Court. (Provided)

Angel De La Cruz, 53, spent 25 years incarcerated for a 1991 murder in the Bronx that he said he did not commit.

He claims prosecutors were able to get a jury to convict him because they didn’t release all the evidence in court – specifically, that the main eyewitness who identified De La Cruz changed their testimony from "I don't remember" to "It was him." (The Bronx DA’s office did not respond to a request for comment on the De La Cruz appeal.)

“What they do is they give you all this information at the last minute. … You can bring it up later as ‘newly discovered evidence,’ but it's not ‘newly’ because you had this all along,” De La Cruz said. “They hold the good stuff for themselves and they give you bits and pieces. … It deprives the defense lawyers the chance of preparing.”

De La Cruz joined a group of community leaders and criminal justice reform advocates demanding change to New York City’s “discovery” procedure outside Manhattan Criminal Court, which dictates how evidence is shared in court. They want police and prosecutors to be required to turn over all evidence in every case, rather than having the discretion to pick what evidence is submitted.

Some say the “discovery” process is a crucial way the criminal justice system is stacked against defendants. But it is one that has received startlingly little scrutiny in an era of calls for reform. Currently, in New York, most evidence is only released the day before trial begins.

“We’re trying to get CPL 240 [the New York criminal procedure law pertaining to discovery] repealed, and put in more just and sane rules, which basically require the prosecutor to turn over evidence within a reasonable amount of time,” said Syed Ahmed, a lawyer and board member with Discovery for Justice, which organized Tuesday’s rally to call for support of legislation that could change the state laws.

The Supreme Court’s 1963 Brady decision established that prosecutors must turn over all exculpatory evidence to defendants. But in New York, non-exculpatory evidence doesn’t have to be turned over under 240, Ahmed said, and prosecutors "get to decide what evidence is exculpatory or not.”

Changing that could help the system operate more fairly, he said. Guilty defendants knowing the evidence against them might plead out more quickly, while defendants with some or no responsibility could present a more educated defense.

State Sen. Jamal Bailey and City Council Member Andy King both spoke in support of changing the laws at the rally. Assemblyman Joseph Lentol and state Sen. Tony Avella have introduced bills, which have also gotten the support of the New York State Bar Association, to change the laws at the state level.

Ahmed argued that the system won't be fair until defendants are guaranteed a look at all evidence against them before trial.

“What if this person is not guilty and is being pigeonholed and forced to take a plea without knowing what’s out there, and the only reason is they don’t want to risk going to trial and facing the maximum?” Ahmed asked. “That leads to unfair outcomes. This is a question of fundamental fairness.”