USA: defendants kept in the dark about evidence, until it’s too late

New York is one of 10 states where prosecutors can wait until just before trial to share evidence, which critics say is unfair. But a new bill could change the rules.

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, Mr. 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 Mr. Cedres, his lawyer recalled.

Mr. 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 Mr. 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 key 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. They say the restrictive discovery rules put people like Mr. 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. According to the State Division of Criminal Justice Services, more than 98 percent of felony arrests that end in convictions occur through a guilty plea, not a trial, a slightly higher number than national figures.

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 a 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.

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