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FILED 10:00 a.m. 08.07.2017
UNDISCOVERED
Defendants say evidence laws force them to take pleas while "blindfolded."
In September 2013, a fight broke out on the sidewalk outside the Bronx nightclub where Aaron Cedres worked as a bouncer. It was a confusing scrum of about a dozen people, and one man suffered a broken jaw and deep slashes to his head and back.
A month later, Cedres — then a 25-year-old father with no criminal record — was charged with gang assault, which carried the prospect of 25 years in prison. Cameras had been posted outside the club, and the prosecutor said the tapes looked bad for Cedres, his lawyer recalled. Cedres was offered a plea deal: five years behind bars. He insisted that he had thrown one punch to help break up two men and he urged his lawyer to get the footage.
But Cedres was up against entrenched legal practices. New York is one of 10 states where prosecutors can wait until just before trial to turn over witness names and statements and other evidence known as discovery, which backs up criminal charges. It is a strategic advantage that critics call unfair and unnecessary.
Some discovery — such as video footage — is supposed to be turned over on request, but defense attorneys complain that the requests are often countered, delayed or ignored and that the restrictive discovery rules put people like Cedres into a high-stakes dilemma: Plead guilty without seeing all the evidence, or risk a trial that could end in a prison sentence much longer than what they might get under a plea.

Most take the deal. More than 98 percent of felony arrests that end in convictions occur through a guilty plea, not a trial, according to the state Division of Criminal Justice Services, a slightly higher number than national figures.

This story was produced in collaboration with The New York Times.

For decades, legislation to require prosecutors to turn over evidence earlier has run into stiff opposition from New York’s district attorneys, who present a powerful counterargument: the safety of witnesses. More than a dozen such bills have failed in the past quarter-century.

Now, the politics show signs of shifting, and a renewed effort is underway to push the legislature to overhaul state discovery rules, following the example of traditionally more conservative states such as North Carolina and Texas.

This year, the New York State Bar Association for the first time is throwing its weight behind a new Assembly bill requiring prosecutors to automatically turn over police reports, witness names and statements and grand jury testimony early in the case. Their endeavor is backed by the Legal Aid Society and the Innocence Project, a nonprofit that helps exonerate people who have been wrongly convicted, although it faces a difficult road. There is no companion bill in the Senate, and Gov. Andrew M. Cuomo has not embraced the idea.

At the same time, the state court system is considering providing judges with a new tool to ensure that prosecutors turn over potentially exculpatory information.

The disadvantage that defendants face in New York has begun to draw more attention, said Carlton Berkley, a retired New York City police detective who leads Discovery for Justice, a Bronx group founded in 2013 to oppose the discovery rules that some critics deride as New York’s “blindfold law.”

“When I was a cop, I always believed the criminal justice system was on the level,” said Berkley, who was a critic of some departmental practices and who has four brothers who have served time in prison. “I’m embarrassed now to say that.”

The efforts in New York reflect a national trend toward more open discovery laws. Ohio broadened its laws in 2010. New Jersey and Utah now require discovery be provided before a guilty plea. The American Bar Association, whose standards often serve as models for state laws, has convened a task force to update its criminal discovery standards for the first time in more than 20 years.

Even in New York, some prosecutors already go beyond what the law requires. The Brooklyn district attorney’s office has long provided open and early discovery in most cases. The acting district attorney, Eric Gonzalez, said that his office sometimes seeks protective orders to shield vulnerable witnesses or, more rarely, to relocate them. “We’ve been able to find the right balance in how to keep our witnesses safe and also make sure the process is as transparent and open as possible,” Gonzalez said.

State lawmakers, facing resistance from prosecutors, have been reluctant to follow that tide.

Prosecutors describe frightening encounters between the accused and witnesses and warn of violence in a “no snitching” culture intensified by social media. Prosecutors say the current law helps protect witnesses by allowing them to withhold witness information indefinitely, since so few cases go to trial. Jack Ryan, the chief assistant district attorney in the Queens district attorney’s office, recalled a recent case in which a witness was photographed on his way into the courthouse.

“Before the witness even testified, that video was uploaded on Facebook identifying the guy as a snitch,” Ryan said. “There’s a legitimate fear.”

Cedres and his lawyer, Kristin Bruan, said that at first he refused the plea, but as the months wore on, he began to consider it. Pending felony charges meant that he lost his job, then his apartment and car. His girlfriend moved into her mother’s house with the couple’s infant daughter, and Cedres was homeless.

Bruan wondered if Cedres accurately remembered the chaotic event, or if his single punch was enough to make him guilty under the law. Prosecutors in this case turned over police reports indicating that the victim and his girlfriend had found Cedres on Facebook, identified him as a leader of the assault and were willing to testify.

Aaron Cedres in the Bronx. A felony assault charge related to a Sept. 2013 altercation outside the El Batey Lounge, where Cedres worked as a bouncer, upended the then-25-year-old's life and left him homeless. He sometimes slept here, in Rainey Park.

“Without that video, our guy was going to prison,” said Bruan, a staff attorney with Legal Aid.

Bruan filed a motion for discovery shortly after Cedres was arrested. Under the law, the prosecution had 15 days to hand over the material or explain why it would not. Fifteen days passed with no reply, then 30, Bruan said.

Judges have few available sanctions for prosecutors who do not comply with discovery requests.

The judge who presided over a later stage of Cedres’s case, Troy K. Webber, said a judge could have ordered the video tossed out of the case. But that would have wrongly punished the defense, she said in an interview. “You have to hope the people will turn over the video,” said Webber, who now sits on a state appellate court.

More than two months after Bruan’s initial request, the prosecutor wrote that the video “does not show anything/is corrupted,” an email shows. Bruan pushed back, and after another five months of wrangling, the videos appeared in her inbox.

Aaron Cedres, circled, threw two punches to separate two men who were fighting, then stood by and watched as the fight continued up the street.

They showed almost exactly what Cedres said they would: In the mayhem, he threw two punches to free the club owner’s son from a bear hug. A separate fight spilled down the street, where a crowd of people beat the man who was ultimately seriously injured. After a year and a half and 22 court appearances, the charges were dismissed.

Patrice O’Shaughnessy, a spokeswoman for the Bronx district attorney’s office, declined to comment on the case.

After Cedres lost his job, he was arrested a number of times for petty offenses such as jumping subway turnstiles. He now lives with his mother and earns money as a driver, but he said his stability feels fragile.

“I’m getting little things back, but I shouldn’t have lost it to begin with,” Cedres said.

Prosecutors are supposed to turn over evidence that is favorable to the accused — called “Brady material” after a landmark 1963 Supreme Court decision — regardless of other discovery rules. But the high court never set deadlines, and lower courts have split over whether Brady material must be turned over before a plea.

What constitutes such evidence is left to prosecutors to determine, and the line is not always clear. In 35 percent of the cases in the National Registry of Exonerations — 711 in all — officials withheld exculpatory information.

The New York court system is expected to soon approve a rule change: Judges would issue an order in criminal cases reminding prosecutors of their Brady obligations. The order does not change what prosecutors must turn over, but it would for the first time allow judges to hold in contempt prosecutors who willfully violate the obligation.

But the deadline in the order is 30 days before trial — well after most plea negotiations have taken place.

The pressure to plead can be enormous, especially because offers tend to go up as time goes by. Cedres was able to post bail with a loan from his parents, but more than 35,000 people in New York City are jailed each year because they cannot make bail, according to the Independent Budget Office. People held in jail are more likely to plead guilty, two University of Pennsylvania studies show, not because they are more likely to be guilty but because that is often the surest way to get home more quickly.

Case in Point

An examination of a single case that sheds light on the criminal justice system

Kimberly Overton, a prosecutor who runs training programs for the North Carolina Conference of District Attorneys, said a 2004 state law requiring prosecutors there to turn over most of their files automatically very early in a case helped to clear up any potential ambiguity over Brady material. “There is no decision for a prosecutor to make now,” she said.

Adding to the ambiguity is that discovery policies vary not only by state but also by prosecutor.

Guilty Pleas by Borough

The vast majority of people arrested for a felony in New York City end up pleading guilty, many of them at arraignment. At that stage, most people do not have access to the evidence against them.

Source: New York State Division of Criminal Justice Services for 2016.

While Brooklyn has a more open policy, the Queens district attorney’s office will negotiate pleas only before a grand jury indictment, a point when the law requires no discovery at all — and sometimes before there is time to thoroughly examine the evidence they have.

“We disclose what we need to disclose,” Ryan said.

More than a dozen defense attorneys and judges who practice in Manhattan said the district’s attorney’s office there hews closely to the restrictive state law. Even the name of the accuser is routinely withheld until the eve of trial, they said.

The Manhattan district attorney, Cyrus R. Vance Jr., disputed the characterization. “We do provide more than the law allows already,” Vance said. “If it’s in the file, we tell our assistants to turn it over, except in situations that involve witness safety.”

In late May, Vance’s office announced a new policy to provide discovery at arraignment in some felony cases where the main witness is a police officer.

Ryan and Vance acknowledged that defense lawyers who have good relationships with prosecutors are apt to get an earlier crack at discovery than others.

“When serious lawyers understand they’re dealing with serious lawyers on the other side, that usually leads to a level of trust that accelerates discovery,” Vance said.

Faster discovery, advocates of the change argue, can lead to fairer outcomes. This happened in the case of Winston Jones.

In November, Jones was arrested and charged with breaking into a Brooklyn bodega and stealing Red Bulls, cigarettes and cash. At 35, Jones had been arrested in connection with dozens of petty crimes, but this time he was charged with burglary, a felony.

Early access to discovery materials sparked frank conversations between Winston Jones and his attorney about his addiction problems. As a result, they were able to negotiate drug and alcohol treatment in lieu of prison for burglary.

Prosecutors offered him a plea: one and a half to three years in prison if he took the offer on the spot, said his attorney, Scott Hechinger of Brooklyn Defender Services. Jones’ memory of the night was blurred by alcohol, but he did not view the crime as serious. He refused, and was sent to Rikers Island.

Because of Brooklyn’s discovery policy, three months after his arrest Jones was able to read the grand jury testimony of an employee who recognized him from surveillance videos. He saw himself on tape, rummaging through coolers and slurring his words.

Watching the videos he received in the discovery process convinced Jones's attorney Scott Hechinger to push for drug and alcohol treatment instead of prison. "This is not the crime of the century," Hechinger said. "You have a guy who’s down and out, needs money to survive, needs money to fuel his alcohol and drug addiction."

After insisting that he had done nothing, Jones began to talk about a lifetime of alcohol abuse. Hechinger brought this back to the negotiating table, and in June, Jones pleaded guilty to attempted burglary in exchange for inpatient drug and alcohol treatment. If he does well, he will avoid prison, and the case will be dismissed and sealed.

James Yates, who in 1979 helped draft New York’s current discovery law as a young Assembly staffer and who later went on to serve more than 18 years as a state judge, said he believes the law has been “abused, twisted and turned” to withhold information.

But he said he is skeptical the new bill pending in the legislature will overcome opposition by prosecutors.

If the law changes, “we’re going to see a huge increase in crime because no one’s going to cooperate,” said Scott McNamara, the district attorney of Oneida County and the president-elect of the state district attorneys association, which has opposed changes to New York’s discovery rules.

As one of many examples, McNamara cited the 2013 case of David McKithen, who was facing drug possession charges in Buffalo when he obtained grand jury testimony of witnesses through discovery. Soon after, witnesses said they and their families began receiving threats. One refused to answer questions on the stand. McKithen was found guilty of witness tampering and intimidation.

A 2015 New York State Bar Association report concluded that states with more open systems do not have worse problems with witness intimidation than New York. In Brooklyn, Gonzalez said, threats to witnesses occur because the defendants already know who they are.

Aside from safety concerns, some prosecutors scoff at the notion that defendants need an earlier peek at evidence to know if they are guilty.

“What the defendant may not know is the strength of the prosecution’s case, and therefore how likely it is that he can ‘beat’ the charges despite his guilt,” wrote three prosecutors who dissented from the state bar association report.

Defense attorneys respond that they need discovery to know whether the facts of the case warrant the charges or whether there are witnesses who might provide an alternative view. In New York, prosecutors do not have to provide witness names at all if they are not expected to testify.

Isaiah Spry learned this lesson in December 2012, when he was bewildered to discover he had been charged with attempted possession of a loaded firearm, a violent felony that carried up to seven years in prison. He had been celebrating his 27th birthday with his girlfriend, he said, when the couple began fighting in the lobby of their Manhattan apartment building.

In 2012, police were called to this Manhattan apartment building, where Isaiah Spry was fighting with his girlfriend. A captain on the scene claimed Spry grabbed for an officer's gun. Without access to that officer's grand jury testimony, Spry almost pleaded guilty to attempted possession of a loaded firearm, a felony.

When the police arrived, he kicked and flailed, according to court documents. A police captain later said that Spry had tried to wrest an officer’s gun from his holster. Prosecutors offered him a plea deal of two years in prison, said his attorney, Robert Bickel of the Legal Aid Society. Spry refused. He spent five months in jail before finally agreeing to plead guilty to the felony in exchange for probation.

“I knew I was innocent, but I didn’t know what they had against me,” he said.

Just as Spry was entering his plea, the judge called the lawyers up to the bench and advised the defense to go to trial, Bickel recalled. The judge had seen something the defense had not: the grand jury testimony. When prosecutors eventually turned over the testimony, Spry learned that the officer did not recall his grabbing for the gun.

The judge, Justice Gregory Carro of the state Supreme Court in Manhattan, confirmed Bickel’s account but declined to comment further. A spokeswoman for the Manhattan district attorney’s office declined to comment.

Spry was convicted of two misdemeanor counts but acquitted of the weapons charge.