By LIBBY CUDMORE • Special to www.ALLOTSEGO.com
Under bail reform, county Sheriff Richard J. Devlin Jr. worried dangerous suspects would be freed – and, locally, one stole a truck a day after he was released.
Now, under new rules of evidence, also part of the state’s criminal justice reforms, District Attorney John Muehl worries he’ll be unable to prosecute as many suspected criminals.
“Arrests are way down already,” said Muehl. “Hopefully things will get better, but my prosecutions could go down 50 percent.”
New discovery requirements as part of Governor Cuomo’s criminal justice reforms require that all evidence be turned over to the defense within 15 days of arrest.
“For instance, a speeding ticket now takes two hours for police to process paperwork,” the D.A. said. “Then it’s another hour for me to get everything together, and if the defense objects to my statement of compliance, that’s another two hours.
“I’m not going to have time to do my job and prosecute cases. It’s almost impossible to comply with.”
As such, he said, he worries that he will have to prioritize which cases go before a jury. “I see a lot of people who have more ‘minor’ crimes – harassment, theft – getting passed over by the legal system because we have to triage our cases. Of course, those aren’t minor crimes to the person they’re committed against.”
And of those that do make it to his desk, many will turn into plea bargains. “Up to this point, I haven’t had to forgo prosecuting cases that I believed should be prosecuted as felonies, but now I may be offering pleas to a lesser charge because I just don’t have the time to prosecute. That’s what upsets me. That’s not what I signed up for.”
He also said that the reforms are turning defense attorneys and prosecutors against each other.
“We used to all get along,” he said. “But the level of animosity is up. A lot of them think they can get their guilty clients off on a technicality because they didn’t like how I wrote my certificate of compliance.”
If his statement of compliance is thrown out, he has to try again to comply. But failure to comply within the restricted time limits means the case is thrown out.
Muehl gave the example of a first-degree rape case he is working on. “I’ve always had a very open-file policy,” he said. “But I turned over every shred of evidence and certified that I had given them everything, but the defense doesn’t like my certificate of compliance, and is now saying that they didn’t like the format and that it should be invalidated.”
He will have to ask a judge to uphold that his compliance and statement of readiness are valid. “This is the first time it’s happened,” he said. “There’s no guidance.”
He also said that there are conflicting rules on the books about what evidence he can hand over. “Under the new discovery laws, I have to hand over grand jury minutes within those 15 days,” he said. “But the law says it’s a Class E felony to turn over Grand Jury minutes without a court order! So do I lose my case or am I guilty of a Class E felony?”
And he’s not the only one who’s worried. “I’ve talked to DA’s all across the state and they’re in the same boat,” he said. “We’re all hoping that judges see that and cut out the frivolous nit-picking of the form of the certification instead of looking at the content.”
“I knew it was going to be bad,” he continued. “But I had no idea how bad it would be.”