This coming March marks the 43rd anniversary of my admittance to the bar in the State of New York. Forty-one of those years have been served as a Legal Aid Society criminal defense attorney in the Bronx. During that stretch, I have seen hundreds of colleagues, district attorneys, judges and court personnel come and go, with only a handful of those who started with me remaining.
One of my fondest memories is of a brilliant prosecutor named Alfred Siegel, whom I met early in my career since we started around the same time. Al and I developed a phenomenal rapport, which was a good thing since we ended up as adversaries in more than seven serious felony cases.
One day, Assistant District Attorney Siegel invited me up to his office in the old majestic court house on the corner of the Grand Concourse and 161st Street. After handing me a cup of coffee, he proceeded to lay before me his seven thick files of our contested cases. He invited me to take my time and examine them in depth, which I did over several hours. At the end of the process, I knew which cases deserved immediate pleas (two), which were clear overcharges (four) and which rated outright dismissals either on motion of the people or by verdict (one). Eventually all seven of our cases were disposed of in exactly the fashion I just described. After five years in the D.A.’s office, ADA Siegel left criminal law to pursue a more lucrative career in civil practice.
My experience with my friend and adversary, Al, taught me the critical importance of what is called in the criminal court system “discovery.” Since those days in the 1970s, there are far fewer trials and many more pleas. In the cases that do end up in convictions, 98 percent are by plea. Usually the prosecutor insists on a disposition early in the process and the defendant is faced with taking the “deal” or insisting on his innocence and facing a far stiffer sentence after trial (if convicted). The pressure is enormous even if you’re completely innocent.
Recently, I represented a gentleman who was facing life should he be convicted, yet because of the weakness of the prosecution’s case, he was being offered one-and-a-half to three years in prison. Even a totally innocent person would be inclined not to tempt fate, since who knows what a jury or judge would decide. He took the deal.
This type of pressure on an accused often can blur the line between the truly guilty and the faint of heart. Another client was offered a youthful offender adjudication (which will leave him with no record) and a program, if he pleads guilty to a robbery he said he didn’t do. His parents want him to take the deal and not “roll the dice,” and the prosecutor says the identification evidence is overwhelming. However, I have no way of knowing how “overwhelming” the evidence is unless we decide to turn down the deal and put our fate in the hands of a jury. These types of pressure-packed choices highlight the critical need for early discovery in criminal cases. Without police reports, write ups and even grand jury minutes, the lawyer has no way to intelligently assess the strength of the people’s case or the provability of his client’s protestations of innocence.
Recently, I picked up a drunken driving case where my client claimed that she was not the driver, but rather it was her male friend who was also arrested. Prior to any discovery process, she was offered a plea deal and told if she didn’t take it that the offer would be withdrawn. Luckily, I was able to obtain a video of the events in question (which I shared with the ADA and the court), which showed beyond all doubt that she indeed had never driven the car. Everything she had told me was the absolute truth.
Although my client’s drunken driving case ended up being dismissed, she told me she felt enormous pressure to take the plea deal offered rather than risk a steeper sentence. Her situation is hardly unique. This whole “blind plea” dilemma could be avoided if discovery was provided at the earliest juncture. However, under New York State law, I am not entitled to complete discovery until trial and without my old friend, Al, on these cases, I have no idea if the prosecution’s case has any merit at all.
I am not alone in my concern. The dilemma of taking “blind pleas” is a problem that is recognized throughout the country. Even Texas and North Carolina, traditionally conservative states, have recognized the importance of early and thorough discovery. Forty states (New York is not one of them) have passed comprehensive discovery statutes, which allow defendant’s counsel to obtain important materials at the outset. Presently, there is a bill before the New York State Assembly that would make us the 41st state to adopt discovery reform. Backed by the New York State Bar Association, the Legal Aid Society and the Innocence Project, it would require prosecutors to automatically turn over police reports, witness names and statements, and grand jury testimony early in the case.
Despite the compelling reasons behind this reform bill, the prospects for passage are minimal. There is no companion bill in the Senate, the governor has not expressed support and many of the district attorney’s offices have weighed in against it.
Personally, until we achieve sweeping changes in the timing of the discovery in New York, I will have no recourse but to trust the good will of the many prosecutors assigned to my cases. Speaking of prosecutors, I am sorry to tell you that my old friend, Al, passed away a few years ago. I can only hope that my new assistants will live up to Al’s often stated and firmly held personal creed: “I am more interested in freeing one innocent person than convicting five guilty ones.”
Rest in peace, my friend.