Court Records Undercut Bronx DA’s Testimony on Discovery Rollbacks

Public defenders, on the other hand, have argued that current law gives prosecutors plenty of opportunity to rectify evidence-sharing issues, and that judges are dismissing cases based on real failures to comply.

In other words, what a prosecutor might call a minor technicality, a defense attorney might call a core legal obligation.

To bolster their claims, DAs have offered anecdotes about serious criminal charges that judges threw out over what the prosecutors say are inconsequential discovery-related violations. But most have been difficult to verify, because cases are generally sealed after they’re dismissed, meaning the court records aren’t publicly available.

Available data shows an increase in discovery-related dismissals in New York City but doesn’t offer much information on the details underlying them. A review of hundreds of those dismissals found that judges described them as based on serious failures by prosecutors to meet evidentiary obligations rather than minor technicalities.

Clark’s mixup offers a rare chance to evaluate the underlying facts in a debate that has largely relied on prosecutors’ word against public defenders’. At the February hearing, which took place in the runup to the all-important negotiations over the state’s $250 billion budget, a lawmaker asked Clark for an example of a frivolous dismissal.

In response, Clark shared the cautionary tale of a felony conviction in her county that a judge reversed after the defense attorney had waited until the last minute to raise concerns about a “particular document or something [that] wasn’t turned over.” But that’s not what happened, court records show. Clark inaccurately recalled central details of the case, including the severity of the charges and the defense attorney’s actions.

Negotiations over the budget, which was due April 1, are ongoing, and the governor’s proposed discovery rollbacks have been one of the biggest sticking points. In their budget counterproposals last month, neither the Assembly nor the Senate included her proposed discovery policy.

Those dismissals are at the center of the debate in Albany. “The dismissals that we’re seeing on technicalities — misdemeanors as well as on felonies — mean that people are not being held accountable,” Clark, the Bronx DA, testified at the February budget hearing.

Clark’s claims echo those made by other New York district attorneys, lobbying groups, and Hochul herself in the last few months. The governor has stressed that her changes “will close fatal loopholes that have delayed trials and led to cases being thrown out on minor technicalities.” And Manhattan District Attorney Alvin Bragg told New York Focus in February that “thousands of cases are now dismissed annually, for reasons that have nothing to do with fairness or justice.”

But proponents have offered little in the way of details. The state District Attorneys Association, which backed Hochul’s proposal, provided New York Focus with a list of seven examples, but could only provide the defendant’s name for one of them. In that case, from Delaware County, the judge dismissed a rape charge when it became clear that the complainant’s medical records were incomplete, noting that the missing records “should be obvious to a prosecutor exercising due diligence.” (Prosecutors are appealing the ruling, according to an association spokesperson.)

There’s no publicly available data on just how many criminal cases are dismissed over “minor technicalities,” though some numbers appear to show that, in New York City, overall discovery-related dismissals have likely increased significantly in the last few years. In the rest of the state, that number has remained low. The judicial reform group Scrutinize reviewed nearly 300 sealed decisions in New York City involving discovery violations from recent years and found that “in every decision we reviewed, judges document serious, repeated failures by prosecutors—not minor technicalities or procedural tricks by the defense.”

The group notes that its dataset is limited due to sealed records: “It is possible that other cases paint a different picture—but that picture remains hidden from public view.”

On the whole, this makes it difficult to verify prosecutors’ claims. The example Clark gave to state legislators provides some insight.

Clark spoke on a panel at the hearing alongside public defense advocates and Rensselaer County DA Mary Pat Donnelly, the incoming president of the state District Attorneys Association. Assemblymember Latrice Walker, from Brooklyn, asked Clark for specifics. “Can you tell me one from your county where that actually happened?” she asked.

“This is how bad this one was,” Clark replied. She told the story of a defense attorney who she claimed had taken advantage of a loophole in the law by waiting until after the jury had found the defendant guilty to raise concerns about a missing document. At that point, the judge overturned the felony verdict. “Now that’s something that could have been dealt with before we went to trial,” said Clark.

New York Focus reviewed sealed court transcripts from the 2024 trial Clark referenced, and it appears she got key details wrong. The transcripts, which omitted the defendant’s name, matched publicly available records, including dates and the names of attorneys involved.

The case in question did not actually involve a felony charge, but rather misdemeanor charges for driving under the influence.

As for the missing document, the defense attorney had in fact addressed the issue as soon as it came up. Months before trial, the legal services organization Bronx Defenders had requested disciplinary records for four police officer witnesses. (Defense attorneys can use past conduct to call an officer’s credibility into question.)

The prosecution turned over some records and stated that they had complied with discovery rules. A week into the trial, after the jury had been selected and testimony was underway, the DA’s office announced they’d found additional disciplinary records for three of four testifying officers.

Ultimately, it was the judge who opted to wait until after the trial to rule on the issue. The defense attorney responded to the new disclosures by asking Judge E. Deronn Bowen to dismiss the case. Instead, the judge tabled the issue because the jury had already been seated. The jury found the defendant guilty, but when the judge turned back to the discovery issue, he found that the prosecution had failed to do its job and overturned the conviction.

The judge said it was the DA’s responsibility to make sure “lines of communication with NYPD are open to the degree [sic] and make sure that stuff that is months old doesn’t get turned over to the People and then to Defense until after trial.” He went on to cite “the sheer variety, the sheer breadth, the sheer diversity” of the late disclosures and concluded, “I’m not even confident that the People have, at this point, gotten everything.”

Though it’s not clear why the records appeared so late in this case, defense advocates have rallied behind a separate reform that would give prosecutors direct access to police electronic records systems, reducing the possibility of a communication breakdown between law enforcement agencies.

Clark’s office did not comment on the discrepancy between the two accounts, but a spokesperson said that under the governor’s proposed changes, a showing of “harm/prejudice to the defendant” would be required to dismiss a case entirely. “This case would not have been dismissed under that standard.” He said the office is appealing the ruling.

“Time and time again, District Attorneys have trotted out misleading anecdotes and fearmongering to attack New York’s discovery reform. But the facts tell a different story,” said Eli Northrup, an attorney with the Bronx Defenders, in a written statement.

“The vast majority of case dismissals have nothing to do with strict deadlines or ‘technicalities’ — they happen either because prosecutors fail to exercise basic diligence, or because the case was never viable in the first place,” he wrote. Northrup, who was not the defense attorney in the case, said Bronx Defenders could not comment on the case or discrepancy itself because the records had been sealed.