Surge in DWI dismissals under NY ‘discovery’ reform could lead to tragedy: cops

nypost.com

Submitted by Brolic_Broccoli t3_125ohkt in nyc

I practice criminal law in NYC. I know it's the Post, which is a conservative rag, but this article is accurate regarding the link between DWI dismissals and the Draconian remedy for discovery "violations".

If you as a prosecutor genuinely believe that you turned everything over concerning discovery in the statutory period, including all body cameras, surveillance, Intoxilyzer 9000 calibrations within a 6 month period, witness details and all other relevant paperwork - and then after the statutory period, a new witness comes forward or new evidence is discovered and promptly shared with defense counsel, the case will be dismissed by a Judge for that "violation", without ever going to trial.

As a result, people who commit DWI's and have underlying substance abuse issues don't get court mandated treatment or refuse to get treatment as part of a plea*, knowing, more likely than not, their case is probably going to get dismissed.

  • As a caveat, there is a cost associated with getting treatment and it usually falls on the defendants - who can expect to pay around $1000 for 14 weeks of treatment, not to mention the time associated with actually attending treatment sessions. I disagree with the exorbitant cost, as it will prevent many people from seeking treatment just based on cost alone and welcome any reforms where treatment is paid by the state.
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Comments

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KaiDaiz t1_je5q81w wrote

The timelines for discovery needs adjustment and it should be for relevant items to case. Let the judge decide if relevant and if defense feels they are missing something crucial to defense...let them argue it to the jury & judge during trial. Tossing entire case for non relevant items is absurd. It should be a measured response. Defense simply abusing discovery to prevent cases from reaching trial. Where's the justice in that for victims?

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mowotlarx t1_je9bqlv wrote

>Let the judge decide if relevant

That's not how the justice system works. The judge isn't the one deciding what is relevant for the defense of a defendant before a trial has begun.

If a system relies only on the defense being left in the dark and not receiving all evidence against them in order for it to "run smoothly"- the system is broken.

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Grass8989 t1_je57z34 wrote

The gift that keeps on giving!

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grandzu t1_je7rl5u wrote

Its cause politicians and their families DWI all the time and this just strengthen their impunity.

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kraftpunkk t1_je72cu4 wrote

DWI’s been getting dismissed for over a decade.

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wearywary t1_je9z506 wrote

That's just not true, and if you practice criminal law in NYC and have read Article 245, you know it.

Judicial dismissal is an extraordinary remedy that under 245.80 must come after consideration of other remedies like precluding testimony or giving an adverse inference charge. And courts have generally rejected defendants' motions for dismissal under 245.80 when there's no showing of prosecutorial bad-faith or prejudice. In fact, Article 245 explicitly requires prosecutors to make only a "diligent, good faith effort" to comply.

The data the Post cites doesn't differentiate between dismissal types. What's likely happening is that cases which would usually plead out (the vast vast majority) prior to any discovery are now being voluntarily dismissed by the prosecution, not dismissed by the judge. Why? Because before discovery reform, you didn't get access to any exculpatory evidence until after plea offers expired. Now, prosecutors have to actually prove their cases instead of just threatening defendants with big prison sentences to force a plea.

DWIs are bad, but due process is good. The solution to societal problems is not to strip people of their rights.

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CactusBoyScout t1_je7j9pa wrote

I feel like NY legislators need to be required to discuss all of the unintended consequences of bills they’re debating.

It’s like they pass any feel-good sounding shit and just hope for the best.

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mowotlarx t1_je5b5s1 wrote

Maybe prosecutors should deal with getting defendants they are owed faster by asking for more funds and staff from the state, rather than suggesting the only way they can win is to hide evidence.

Of course, the Post and other right wing rags would never suggest that.

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Brolic_Broccoli OP t1_je5e31x wrote

Nobody here currently working in civil service is advocating for "hiding" evidence as a solution.

Many in this field view the idea and intent of discovery reforms as much needed. However, what I have identified is a serious and legitimate issue with the reforms. Let me paste this from an earlier comment:

99/100 a prosecutor receives all of the paperwork that they need to actually be able to prosecute the case from the NYPD, that's not an issue.

There are numerous factors and variables at play that lead to absurdly high dismissal rates. First, prosecutors don't only acquire need to acquire all of the discovery material..There aren't enough prosecutors to review hundreds of hours of police body cam footage, police and paperwork and redact witness home addresses so they are protected.

Just look at the Bronx DA walkout. You would need to hire about 5X the amount of prosecutors in each borough to be able to get through all of the paperwork and that's not feasible. The new proposed executive budget bill barely allocates any more funds for discovery. This work can't be pawned off on paralegals either, because each prosecutor must do this themselves on each and every case, because they need to "certify", by law, that they have exercised due diligence in seeking out any and all discovery material.

Second, what is "all paperwork/discovery relating to an arrest"? This opens the door to an infinite number of arguments. Do weather reports count? How about the names and contact information of 20+ unidentified passerbys who are impossible to get because of how populous NYC is? And these people aren't being called in to testify either.

Regardless, because a random person may or may not have seen something, then it's a question of is it discoverable? If a Judge rules that it is, the case is automatically tossed, and this is after 20+ hours were already put into the case and thousands of files and all video files known to exist have been turned over. These are just some of the issues and it's a non-exhaustive list, the reforms create an endless rabbit hole which leads to an inordinate rate of dismissals.

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prisoner_007 t1_je5kt2o wrote

15% dismissal is absurdly high? That seems like hyperbole honestly.

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Brolic_Broccoli OP t1_je5n5sx wrote

The article references only DWI felonies.

Dismissals are at 15% this year, as opposed to the pre reform rate of 6%, which is a 250% increase in the rate of dismissals.

It would be interesting to review the % of misdeamanor cases, which based on my experience (but zero data) would be likely much higher.

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prisoner_007 t1_je5v7sg wrote

You’re the one who said absurdly high and that’s the only percentage provided so is that what you were referring to or did you mean the imaginary percentage you assume exists?

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Brolic_Broccoli OP t1_je5xfnn wrote

The dismissal rates of misdeamanors increased to 82% in 2021 as opposed to 49% in 2019.

I obviously don't keep my own statistics as that's not my job, but it's in line with my experience as a practicing criminal law attorney.

https://www.manhattan-institute.org/how-new-york-discovery-law-destabilizes-criminal-justice-system#:~:text=Proportion%20of%20All%20Dispositions%20by,a%20whopping%2082%25%20in%202021.

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prisoner_007 t1_je622t6 wrote

I don’t see anything about that being about DWIs. That’s just misdemeanors total, with no indication whether or not that increase was consistent across all misdemeanors or drive by large increases in specific types as far as I can see. So you still have no idea what the actual increase in DWI dismissals are and whether or not it’s absurd or not.

EDIT: I also just noticed that you’re relying on the Manhattan Institute, a conservative think tank that’s been ardently ain’t bail and discovery reform since they were announced. So not exactly a non-biased source.

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mission17 t1_je68u6i wrote

> I also just noticed that you’re relying on the Manhattan Institute, a conservative think tank that’s been ardently ain’t bail and discovery reform since they were announced. So not exactly a non-biased source.

We're also in the comments of a NY Post article here that's literally a police op-ed.

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mission17 t1_je5whwa wrote

Breaking: Cops want to roll back protections for defendants. Oh brother.

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KaiDaiz t1_je5y9it wrote

Breaking news, defense attorney and plaintiffs don't want to go to trial and claim missing random x document as reason they get off for their alleged crimes. They not asking for the case to be dismiss bc they claim they are innocent but time to bring them to trial lapse under 30.30 bc x doc missing and the people not certified to go to trial.

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mission17 t1_je68oum wrote

Yeah, this may be news to you, but that's the job of a defense attorney and how operating within our Constitution has worked since forever. You advocate for your clients by not only attesting to their innocence but also guaranteeing their rights are being protected in the legal process.

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KaiDaiz t1_jeb0h71 wrote

yes bc there's a ton of ambiguity regarding dwi when it's the only driver and already blew past limit

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mission17 t1_jeba1if wrote

A DWI, like any offense, still requires Due Process.

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TheNormalAlternative t1_je5itdd wrote

Ironic that the cops call it a tragedy when every other DWI in the news seems to be a police officer

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IRequirePants t1_je5pzkj wrote

Not really - when a cop does, it's newsworthy. But the vast majority who do it are not cops.

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