Office says it’s diverting cases to handle workload
The Dutchess County District Attorney’s Office said it needs $650,000 to spend on new hires and is triaging cases to meet the demands of a 3-month-old law requiring prosecutors to more quickly turn over evidence to defendants.
County legislators last month unanimously approved using contingency funds to hire three assistant district attorneys, an investigator, two assistants and a confidential secretary to comply with revised rules for discovery, the process during which prosecutors share evidence with suspects and their attorneys.
The rules, which took effect Jan. 1 as part of a package of new laws that also eliminated bail for relatively minor crimes, gives district attorneys 15 days after an arraignment to turn over evidence. It also expanded the list of materials that must be automatically shared, including police body-camera footage and grand jury testimony.
Through February, Dutchess County prosecutors had sent 774 requests to law enforcement agencies for material covered by the law, said Chief Assistant District Attorney Matthew Weishaupt.
He said the district attorney received 60,985 files that needed to be examined, including body-camera footage and files that may require redactions.
Weishaupt pointed to an arrest in which five officers with body cameras each recorded five hours of footage. Reviewing the footage “amounts to about 60 hours’ worth of work,” he said.
“It’s been a tremendous challenge and a tremendous burden — not just to us but to every district attorney’s office and law enforcement agency in the state,” Weishaupt said.
In Putnam County, District Attorney Robert Tendy has criticized the new rules, saying they place a similar burden on his prosecutors. Tendy said he used a grant obtained by state Sen. Pete Harckham, whose district includes eastern Putnam, to upgrade his office’s computer system and “we are beginning the discussion with the Legislature regarding staffing and compensation in our office, issues that absolutely must be addressed.”
Under the law, prosecutors can ask a court for a 30-day extension. Before the reforms went into effect, prosecutors only had to share what they knew sometime before the trial began, and defense attorneys had to make a written request. The new law includes “automatic” discovery, which requires prosecutors to share what they have without prompting.
Weishaupt said Dutchess prosecutors have set up a process to identify cases that can be disposed of through “diversion” — such as adjournment in contemplation of dismissal, treatment or community service — so they can focus on the most serious offenses. The diverted cases tend to be for low-level misdemeanors like petit larceny and seventh-degree drug possession, he said.
Through February, the Dutchess District Attorney’s office was diverting 29 percent of cases, he said. Last year “it was much lower — maybe 10 percent,” he said.
“Simply put, we cannot, under the new discovery law, keep every case that’s charged within the system because we would never be able to comply with discovery, even with the new positions,” Weishaupt said.
Critics say because the old rules, derided as the “blindfold law,” allowed prosecutors to release information at the last minute, defense attorneys had little time to respond. Prosecutors also could withhold what they knew during plea-deal negotiations or before a defendant testified before a grand jury.
The law includes a list of 21 types of material that must be shared, including co-defendant statements, grand jury testimony, witness names, lab results, electronic recordings such as 911 calls, “materials favorable to the defense,” deals cut with prosecution witnesses and evidence collected from cellphones and computers. Prosecutors can ask a court to shield information they feel should be withheld, such as the names of witnesses who may be endangered.
The law also requires the defense to share the evidence it gathers with prosecutors.
Alex Rosen, the criminal division bureau chief for the Dutchess County Public Defender Office, said that, before the law, his office would typically get key discovery material from prosecutors “if we’re lucky, 10 days before trial.”
Defense attorneys are now automatically receiving body- and dash-camera footage, surveillance video, grand jury testimony and other material.
“Now I get to look at that and say to myself, ‘You know what, my client needs to see this. How are we going to address this issue [in our defense]? Oh, look. Here’s some contradictory information,’ ” Rosen said.
“Having the opportunity to do that — instead of within a week’s period [before trial] — and have months to look through that stuff, that’s critical,” he said.
Judges can impose a range of sanctions if prosecutors fail to comply with the deadlines, including declaring a mistrial or dismissing some or all charges.