Discovery Reform: Why It Matters, and Who Wants to Kill It

When the story of Kalief Browder became public in 2014, it shocked the public conscience. Browder, a young man from the Bronx, was arrested in 2010 on charges that he had stolen a backpack. Browder denied the charges, and prepared to prove his innocence at trial. But legal dysfunction and prosecutorial maneuvering made a mockery of Browder's right to a speedy trial—he spent three years awaiting his day in court in a cell on Rikers Island. The experience damaged Browder profoundly. Two years after his release, he killed himself.

Browder's case took place against a background of pervasive pre-trial injustice across New York. State law guarantees people charged with crimes a speedy trial, requiring prosecutors to be ready to go to trial within 90 days for misdemeanor cases and six months for non-homicide felonies. If that clock runs out and the prosecutors aren't ready, the case is dismissed. But until 2020, prosecutors would routinely stop the clock by declaring themselves ready for trial even when they clearly weren't—they hadn't reviewed the evidence, and they hadn't fulfilled their obligation to share the evidence with defendants, a process known as discovery. When people charged with crimes would object that prosecutors hadn't turned over discovery they needed to fight their case, judges would generally admonish the prosecutors to turn it over and give defendants extra time to go over it, dragging out the proceedings over months and years.

The Kalief Browder story supercharged a longstanding campaign to reform discovery laws in New York, leading to a raft of changes passed in 2019, known alternately as Kalief's Law and discovery reform, that both expanded the obligations of prosecutors to show defendants the evidence against them in a timely way and, for the first time, imposed meaningful penalties for failing to do so.

Like bail reform, which was enacted the same year, discovery reform was an enormously significant adjustment to the criminal legal system, the details of which are technical enough that explaining them is challenging. In broad strokes, the reforms required prosecutors to sign a certificate of compliance attesting that they've turned over all the evidence related to a case before they can stop the speedy trial clock. Excuses like, "I haven't turned over some of the evidence because the police haven't given it to me yet" would no longer wash: If the police had the evidence, for the purposes of the law, the prosecutor had them too. And if prosecutors didn't show due diligence and make a good faith effort to get all the evidence and share it, a judge could rule that the speedy trial clock never stopped running, the case had run too long, and now must be dismissed.