Innocence Project Applauds New York’s Presiding Judges for Landmark Statewide Rule Ensuring Comprehensive Brady Disclosure

Orders Will Guarantee That Prosecutors Who Fail to Disclose Favorable Evidence Can Be Disciplined for Misconduct

Contact:  Paul Cates, 212-364-5346, [email protected]

Julia Lucivero, 212-364-5371, [email protected]

(New York, NY – November 8, 2017)  New York State’s Chief Administrative Judge, Lawrence K. Marks, yesterday issued a landmark administrative order regarding prosecutors’ legal and ethical obligations to disclose all information in law enforcement’s possession that is favorable to criminal defendants.  The court’s order, effective January 1, 2018, requires every criminal trial judge in New York State to issue a “Brady” order to all prosecutors who appear before them, in both felony and misdemeanor cases.

Appended to the court’s directive was a detailed model order approved by the Office of Court Administration that (1) reminds prosecutors of the specific types of favorable information that they are required by law to produce to the defense, (2) establishes a time frame for disclosure that will allow defendants to make use of the information, and (3) allows for personal sanctions against prosecutors who engage in “willful and deliberate” violations of the order.

With this sweeping new rule, New York has become the first state in the nation to require all of its criminal trial judges to issue so-called “Brady orders” in every case (named after the 1963 case of Brady v. Maryland).  Other prominent judges – including U.S. District Judge Emmet Sullivan, who presided over the trial of former U.S. Senator Ted Stevens that was marred by prosecutorial misconduct – have long issued their own individual Brady orders, but New York is the only jurisdiction that has made such orders mandatory for all criminal court judges.

While the new rule does not require judges to use OCA’s model order, the order virtually identical to a recommendation and proposed order issued in a 2016 report by the Uniform Court System’s Justice Task Force – a commission convened by the Chief Judge and comprised of a broad array of prosecutors, police agencies, defense lawyers, judges, and organizations representing crime victims.  The Task Force explained that its proposed order was a way to educate prosecutors on their legal and ethical obligations, to prevent wrongful convictions throughout the state, and to provide a mechanism for sanctioning the small minority of prosecutors who deliberately conceal favorable evidence.

In his issuing memorandum, Judge Marks also noted that the new rule was adopted with the “approval and consent” of the Chief Judge, Janet DiFiore, who was an elected District Attorney before being appointed to lead the Court of Appeals by Governor Cuomo in 2016.

“Chief Judge DiFiore and the Justice Task Force have taken a critical step in ensuring that prosecutors across the state honor their legal and ethical obligations to turn over all evidence that is favorable to a defendant,” said Barry Scheck, co-director of the Innocence Project. “Critically, the new rule will educate less experienced prosecutors on their constitutional and ethical obligations, and ensure that they make it a priority to seek out and timely disclose all evidence that furthers a potential claim of innocence or otherwise aids the defense’s case.”   In addition, added Scheck, the model order “will provide a mechanism for judges to hold prosecutors in contempt if they are found to have deliberately violated its terms.”

The Innocence Project lobbied the Task Force to issue this recommendation in part because judicial oversight of discovery was critical in holding the former Texas prosecutor (and later judge) Ken Anderson in criminal contempt for the misconduct that resulted in Innocence Project client Michael Morton wrongly serving 25 years for the murder of his wife before he was cleared by DNA evidence.

New York’s action is part of a growing focus on prosecutors’ disclosure obligations nationwide.  Just last week, after undertaking an unusual “fast track” process requested by the Chief Judge of its Supreme Court, California became the 50^th state to adopt ABA Ethical Rule 3.8 requiring prosecutors to turn over all favorable information that tends to negate the guilt of an accused, which will allow the state bar to discipline prosecutors who deliberately violate its terms.

The New York Task Force’s 2016 report explained the rationale for several provisions of the recommendation and model order, including the following:

– The order spells out three broad categories of information that should be disclosed to the defense – exculpatory, impeaching and those relevant to suppression– precisely tailored to existing state and federal case law requiring disclosure as well as New York ethical rules.

– The order makes specific reference to types of evidence that are required to be disclosed, including any benefits or promises made to witnesses for their cooperation, prior inconsistent statements and uncharged criminal conduct or convictions, and information regarding a witness’s mental or physical illness or substance abuse.

– The order encourages early disclosure by reminding prosecutors to produce information as soon as “reasonably possible,” and presumptively no later than 30 days before the start of a felony trial and 15 days before the start of a misdemeanor trial.

– The order makes clear that it is not intended as a mechanism for sanctioning prosecutors for good-faith error, but only for conduct that is willful and deliberate.

“We are hopeful that other states will follow New York’s lead in making the Brady order standard practice in state and federal criminal prosecutions.  It protects the innocent, ensures due process, and promotes accountability,” said Scheck. “We also hope the order will provide momentum to reform New York’s criminal discovery procedures which are among the four most restrictive in the country.”

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