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Brooklyn DA pushes major reform in evidence disclosure

March 4, 2019 By Rob Abruzzese Brooklyn Daily Eagle
Brooklyn District Attorney Eric Gonzalez. Eagle photo by Mary Frost
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Brooklyn District Attorney Eric Gonzalez bucked the trend among district attorneys in the state on Saturday, calling for discovery reform in an op-ed published in the Times Union in which he referred to the current system as “trial by ambush.”

Discovery refers to a criminal defendant’s right to know details about the evidence that will be presented against them in a case by prosecutors.

Gonzalez said he encourages his assistant district attorneys in Brooklyn to turn over such evidence as early as possible. But the current statute doesn’t require that prosecutors submit this evidence until the very last moment before trial, even after a jury has been selected.

“While constitutionally permissible, I believe this is unfair,” DA Gonzalez wrote. “Not only does the current law allow ‘trial by ambush,’ it prevents a person accused of a crime from learning the nature and strength of the case against them in order to make a knowing plea of guilty should they choose to forego a trial.”

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In most cases, Gonzalez said, his office routinely turns over evidence before being legally obligated to do so. If the evidence presents an issue of public safety for victims or witnesses, however, they do routinely redact and withhold information.

“Our ‘open file discovery’ practice has not resulted in the negative outcomes some reform opponents fear,” Gonzalez wrote. “The safety of victims and witnesses is not compromised by our practice and they are not discouraged from coming forward.

“Do we lose more of our cases because we don’t use secrecy as a tactical advantage? I honestly don’t think so, but that is beside the point. Gamesmanship should have no place in how we, as prosecutors, do our jobs.”

Repeal the Blindfold, a coalition of labor unions, grassroots organizations, public defenders and criminal justice reform advocates that includes the Legal Aid Society and the Brooklyn Defender Services, issued an immediate statement in praise of Gonzalez.

“Kings County District Attorney Eric Gonzalez joins a chorus supporting comprehensive discovery reform, including wrongfully convicted New Yorkers; LGBTQ+; victim advocates; criminal defense attorneys; grassroots advocates; faith leaders; labor unions; and prosecutors from other states that have already changed their discovery rules,” the group said.

“For over 30 years, most people accused of crimes and their defense attorneys in Brooklyn have had access to early and open discovery to make informed decisions about whether to plead guilty, and in many instances, effectively demonstrated their innocence. This practice helps avoid wrongful convictions, unjust incarceration, and court delays while balancing public safety.”

The District Attorneys Association of the State of New York (DAASNY) even broke with its past stance to support Gonzalez.

“I agree with my colleague Brooklyn DA Eric Gonzalez, as do my fellow district attorneys in the District Attorneys Association of New York. For the first time in the history of our organization, we are openly calling on our lawmakers to take action and enact criminal justice reform,” said DAASNY President and Albany County DA David Soares.

“We have a unique dynamic in Albany that enables our lawmakers to reshape criminal justice in New York for generations to come. Defense attorneys should be armed with as much information as early as possible so they can have meaningful discussions with their clients. It also must be balanced and sensible so we are not compromising the safety of our victims, our witnesses and our communities.

“I practice open discovery in Albany as it is practiced in Brooklyn, and many other counties are also practicing open discovery. The level of justice you experience in the State of New York should not depend on your zip code. This not only speaks to fairness, but it is the right thing to do.”

This article was updated on March 4, at 7 pm, with a statement from DAASNY.

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