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Movement to Reform New York’s Discovery Statute Faces A Familiar Foe: Prosecutors

NY Governor Andrew Cuomo (L) shakes hands with Manhattan D.A. Cy Vance
Mario Tama / Getty

Movement to Reform New York’s Discovery Statute Faces A Familiar Foe: Prosecutors

By the time Steven Odiase learned of the evidence that would set him free, he’d already spent six years in prison for murder. The Bronx district attorney pushed for Odiase’s conviction in the fatal shooting of 15-year-old Juan Jerez in 2009, based on the testimony of a single witness who put him at the scene. Then, in March of last year, his attorneys made a startling a discovery: a police report containing the statement of a previously unknown witness, whose physical description of the shooter did not resemble Odiase.

Years earlier, Bronx Assistant District Attorney Adam Oustatcher had received that very same police report. But before sharing such exculpatory material with the defense, as is required by law under Brady v Maryland, he first redacted the information unfavorable to his case. When Odiase’s attorneys did receive a copy of the report, there was no sign that detectives had ever spoken to the second witness. That change was made deliberately, by Oustatcher’s own admission, as part of the office’s policy of withholding information that could harm witnesses. Altering the report, he said, was “normal practice.”

Oustatcher, who now works for a Long-Island based law firm, will likely face no consequences for his actions. Prosecutors are rarely disciplined for even egregious misconduct; a 2016 Innocence Project report found that in 660 cases in which misconduct was identified, only one prosecutor was sanctioned.

In the months since the redaction in the Odiase case was made public, a growing reform movement has seized on the methods by which prosecutors provide crucial evidence to the defense. Known as criminal discovery, the process has garnered particular scrutiny in New York, where a so-called “blindfold law” allows prosecutors to withhold vast amounts of information — including police reports, witness statements, and grand jury testimony — until just before a trial which makes it difficult, if not impossible, for defense attorneys to properly investigate and prepare their case. A failure to present an adequate defense violates a defendant’s Sixth Amendment rights — “T]he right to counsel is the right to the effective assistance of counsel.”

But because of the “Blindfold law” and the fact that by one estimate only about 5 percent of cases ever go to trial, defendants frequently plead guilty without fully knowing the case against them. In the rare instances that defendants do go to trial, it’s not uncommon for witness statements to be provided to attorneys only hours beforehand. And then there are cases like Odiase’s, where prosecutors deliberately hide exculpatory evidence from defense attorneys — around 38 percent of the state’s 234 exonerations are caused by such Brady violations, according to the National Registry of Exonerations.

“New York’s broken discovery statute has empowered prosecutors for decades with an enormous advantage over the defense, undermining fairness and due process,” Tina Luongo, Attorney-In-Charge of the Criminal Defense Practice at the Legal Aid Society, told The Appeal. Similarly restrictive discovery laws can only be found in Wyoming, South Carolina, and Louisiana, a state known for having the highest incarceration rate in the world and rampant prosecutorial misconduct. Meanwhile, at least 35 other states (including New Jersey) have broad and early discovery, meaning that prosecutors turn over critical information like police reports and witness statements early in a case, without requiring defendants to file motions with the court to obtain them.

Despite the Manhattan district attorney’s office’s claim that “there is no empirical evidence that open-file discovery leads to more efficiency,” a host of studies suggest just the opposite. In a 2016 study published in the Washington and Lee Law Review, researchers compared closed file discovery in Virginia with open discovery in North Carolina, and arrived at a “data-driven endorsement of the idea that open-file discovery could facilitate more informed and more efficient case dispositions.” That same year, a report from the New York Mayor’s Office of Criminal Justice concluded that “standardized, broader and earlier exchange of discovery materials can promote quicker case resolutions.”

Defense attorneys have been arguing for broader and more open discovery policies for years, but it’s only recently that the state legislature has signaled a willingness to bring New York in line with the national mainstream. A bill introduced last January in the state assembly would add New York to the growing list of open file states, and it has the support of the New York State Bar Association, the Legal Aid Society, and the Innocence Project. Companion legislation is currently in committee in the state senate. Governor Cuomo voiced his support for “expanding the discovery process” last month, as part of a five-pronged legislative package aimed, in theory at least, at improving access to the justice system.

Of course, not everyone is thrilled that the logjam in Albany seems ready to break. Citing concerns over the safety of civilian witnesses, the District Attorneys Association of New York (DAASNY) has long opposed broader discovery policies and, according to Luong, is now actively lobbying against comprehensive reform. DA Associations are extremely effective in influencing public policy and unsurprisingly DAASNY’s opposition may be working, as evidenced by a slew of loopholes in Cuomo’s proposal, including the creation of an expansive “right of redaction” of witness information by prosecutors.

The Legal Aid Society said such a “right of redaction” will give prosecutors “blanket authority” to blackout the identifying information of witnesses. Defense attorneys cannot adequately prepare and investigate their cases without identifying and interviewing such witnesses. As well, under the Cuomo proposal, prosecutors could justify redactions based on a list of over one dozen qualifying considerations including a defendant’s reputation, alleged gang affiliation and perceived “public safety threat.” Perhaps most damagingly, the Cuomo proposal greatly expands the discovery that must be turned over by the defense, meaning that, according to Legal Aid, “the defense would have to turn over its witnesses’ statements before the prosecution has turned over its witnesses’ statements — and long before the prosecution is required to turn over the Grand Jury minutes of its witnesses.”

DAASNY President Scott McNamara told The Appeal that he was pleased with the “right of redaction” language, and was adamant that the differences between upstate and downstate courthouses make open discovery a nonstarter. Asked how the 35 other states that have broader and more open discovery manage to get around this problem, he responded, “New York is one of the safest states in the country, so why do we always feel that what we’re doing is wrong and we have to modify it to what someone else is doing?”

That sentiment was echoed by the city’s district attorneys during a recent City Council hearing on discovery reform. With the exception of the Brooklyn DA’s Office, which independently adopted open and early discovery in the 90s, representatives from each of the borough prosecutors’ offices cited witness safety concerns in explaining their reluctance to support the proposed discovery reforms. Robert Master, an assistant district attorney in Queens, was perhaps the most forceful opponent of the reforms, warning of “a unilateral renegotiation of the ‘See Something, Say Something’ social contract” if open discovery is passed at the state level. At the same time, each of the DA’s offices representatives insisted that their offices have taken steps in recent years to streamline the pre-trial information sharing process.

Excerpt from the Manhattan D.A.’s “expedited discovery” policy.

But defense attorneys say that minor policy shifts — like the Manhattan DA’s announcement of “expedited discovery” last year, which applies only to police witnesses — mean little in the absence of comprehensive changes to the state statute. They note that the promise of reform rings particularly hollow coming from Cy Vance’s office, which has earned a reputation for not only redacting the names of witnesses, but complainants as well.

“It’s a trial by ambush strategy, because the majority of the evidence that you’re given does not make sense without the name of the complainant or any of the witnesses,” says Rebecca Kavanagh, an attorney with the Legal Aid Society. As for the prosecutors’ fear about witness protection, Kavanagh sees their concern as “an absolute smoke screen” deployed to maintain a strategic advantage over the defense.

Yet despite the best efforts of prosecutors, many in New York’s public defense community are still confident that the state’s “blindfold law” will soon be lifted. “If former Texas Governor and current Trump administration Energy Secretary Rick Perry can enact one of the most comprehensive discovery reforms in the country,” notes Legal Aid’s Luong, “surely New York can.”

Five Ways the Media-Driven Rape Kit ‘Backlog’ Narrative Gets it Wrong

Five Ways the Media-Driven Rape Kit ‘Backlog’ Narrative Gets it Wrong

Across the country, police departments have chronically failed to investigate rape cases, leaving rape kits — the physical evidence collected from a rape victim’s body — untested. Unfortunately, a false narrative has taken hold around the concept of a rape kit backlog.

Promoted by advocacy groups like the Joyful Heart Foundation (founded by actress Mariska Hargitay, who plays Detective Olivia Benson on Law & Order: SVU), this narrative presents law enforcement as victims of an overall lack of resources (faulty technology, overburdened labs, understaffed units) rather than perpetrators of a failure to investigate violent crimes.

Beyond dominating national and local headlines, the rape kit “backlog” has even become an element of pop culture, with former Vice President Joe Biden appearing as himself on Law & Order: SVU to commend Detective Benson on her work to “end the backlog.” Hargitay, a fictional sex crimes detective on a show that glorifies law enforcement, is a perfect spokesperson for a narrative that glosses over police failings.

The backlog narrative doesn’t only ignore law enforcement’s unwillingness to take responsibility — it enables it. That’s because it obscures the actual criminal justice policies and practices, like broken-windows policing and other “tough-on-crime” measures, that led law enforcement to de-prioritize violent crime.

The term “backlog”

Moving beyond the word “backlog” is the first step in understanding how law enforcement disregarded so many rape kits. While there are actual backlogs at some crime labs, “backlog” is an inappropriate word for the thousands of rape kits that police departments never submitted to a lab for testing in the first place.

Backlog “implies that the untested rape kits were in a queue awaiting testing by overburdened labs,” University of Kansas law professor Corey Rayburn Yung has argued. “That does not reflect the reality across the United States. In fact, untested rape kits were often simply discarded in warehouses, trash depositories, or storage closets with no intention to ever test the contents of the kits.”

The National Institute of Justice (NIJ) defines a rape kit as “backlogged” if it has been sent to a lab and has not been tested for at least 30 days after a request for testing was made. There is no justification for conflating this scenario with cases in which police never submitted rape kits to a lab in the first place.

The word “backlog” also re-frames law enforcement’s belated attention to neglected rape cases as heroic and redemptive. Never mind that in cases with unsubmitted rape kits, police also failed to do other investigative work.

While it’s easy to understand why law enforcement would embrace a narrative that denies its own role in creating the problem, it’s shameful that victim advocacy and news media continue to peddle this fiction.

A lack of resources caused rapes kits to remain untested.

In response to public criticism, law enforcement and victim advocates have blamed untested rape kits on a lack of funding, and media outlets have often reported their claims uncritically.

Wayne County Prosecutor Kym Worthy has publicly sought donations to test Detroit’s rape kits and prosecute the neglected cases. In Texas, State Representative Victoria Neave spearheaded new legislation allowing drivers license applicants to donate money to test rape kits. In California, lawmakers passed a measure creating a voluntary contribution checkbox on the state income tax form for those wishing to donate to rape kit testing.

But the funding to test rape kits already exists. In 2004, Congress passed the Debbie Smith Act, named after a Williamsburg, Virginia woman who was raped in 1989. The act was intended to address untested rape kits through grants to states and local agencies to conduct DNA analysis of untested samples collected from victims of crime and criminal offenders. Since 2004, the federal government has granted over a billion dollars to states and local agencies under this program.

Yet, it’s hard to know how that money is being spent. The NIJ, for instance, which oversees the Debbie Smith grant program, cannot provide basic statistics regarding the number of rape kits awaiting analysis or whether the funding was even used to test rape kits. Nor can it explain its criteria for awarding DNA testing-related grants or show proof that grant recipients satisfied the requirements outlined in their grant applications.

Given this lack of transparency, it is troubling that additional law enforcement funding continues to be advanced as a solution to untested rape kits. For instance, an additional $79 million is available under a partnership between Manhattan District Attorney Cy Vance and the Bureau of Justice Assistance’s Sexual Assault Kit Initiative. While these funds also require grantees to do certain things, like form “multidisciplinary working groups,” it’s unclear how the program will be monitored to avoid waste, dysfunction, and abuse.

It’s also been argued that labs lack capacity and staff. Yet, federal funding, including grants disbursed under the Debbie Smith Act, has been used to expand labs’ capacity and staff, increasing their ability to process DNA.

Because a lack of money is not the reason police failed to investigate rape cases, increased funding alone won’t solve the problem.

It’s a problem of “rape culture.”

High-profile advocates often attribute law enforcement’s poor record on rape investigations to attitudes toward rape in society at large.

“The rape kit backlog is just a perfect microcosm for how women and these crimes are regarded, and so through excavating and digging, you really see those victim-blaming attitudes,” Hargitay noted at a recent screening of her documentary I Am Evidence, which she produced and stars in. Discussing Detroit’s untested rape kits, Kym Worthy, who co-stars in the film, offered, “We have a problem in this country with rape culture.”

But that broad framing shifts the focus away from police culture, and the specific policies and practices that led to the problem.

The failure of law enforcement to properly investigate rape is not limited to testing rape kits. Too often, investigations are closed before a kit is even taken. Investigating and solving a rape case takes actual police work. Detectives must find and interview witnesses, interview the victim, track down evidence, corroborate the account of events with both the victim and witnesses, and compare the case details to unsolved cases to try to detect patterns. Yet instead of doing this necessary legwork, police unfound, downgrade, and “disappear” rape cases.

Take the Detroit police department, which, “under nine chiefs, both male and female, sustained a culture in which officers routinely neglected rape complaints or actively discouraged victims from seeking redress, all without fear of consequence,” according to Detroit Free Press columnist Nancy Kaffer. The department, like others, has a long history of underreporting rape. In 2001, the department admitted that the statistics it reported to the FBI for rape arrests — which were at least twice the national average throughout the 1990s — were seriously flawed. And in 2015, news media exposed that the department, again, had “vastly underreported” rape numbers to the FBI.

Meanwhile, the war on drugs still incentivizes law enforcement to focus resources on drug enforcement at the expense of solving violent crimes. Police departments have pushed ineffective stop-and-frisks while making complaints of real crimes disappear for the purpose of creating annual crime reductions.

Despite the myriad legislative efforts to test rape kits, police across the country are solving fewer rapes than they did in the past. Nationwide, the clearance for rape has declined sharply in the past decade, from 51% in 1995 to approximately 40%, where it has remained stable since 2005. In some cities, the clearance rate for rape is in the single digits.

A lack of training or technology led to the problem

Another popular notion advanced by the media is that inadequate technology prevented police from processing rape kits. “It started really in the late ’90s and early 2000s,” Rebecca O’Connor of the Rape Abuse and Incest National Network told NPR, “as we saw advancements in the science itself around DNA technology and as people started to literally open up the evidence rooms and warehouses across the country and discover these troves of kits in different jurisdictions.”

O’Connor echoed the talking points of former Memphis Mayor A C Wharton, who said in 2014 of his city’s 12,000+ untested rape kits, “Unfortunately, there were no processes in place to systematically test the older kits as DNA technology evolved to do so.”

But advances in technology did not unearth this discarded evidence, and law enforcement continued to disregard rape evidence after the advent of modern DNA technology.

Ohio Public Defender Tim Young, whose office is appealing convictions based on Cleveland’s neglected rape kit evidence (including the Demetrius Jones case), has criticized the narrative that DNA technology didn’t exist to solve rapes until recently, and is now miraculously solving cases.

“We’ve had DNA testing since the mid-1990s. They [law enforcement] were dilatory in not using it. It’s a continuation of broken police culture that places the police first, not the victims, the defendants — or justice.”

This excuse is even more flimsy considering that law enforcement has long used DNA to investigate and prosecute homicide cases.

Testing rape kits will solve the problem

While DNA testing is one step in investigating a case, it does not, in itself, represent a solution to unsolved sex crimes. After suffering the bad publicity of having large numbers of untested rape kits, police departments in cities like Memphis and Detroit have been eager to ship rape kits off for testing and report to the public on how many kits have been tested so far. But that doesn’t always mean they’ve made policy changes. In Detroit, the police department developed a “second backlog” of rape kits, never revealed to the public, that accumulated after the 2009 disclosures and promises of reforms.

Further, rape kit testing alone does not solve cases. The DNA results have to be put into CODIS, the national database run by the FBI which holds DNA samples. These cases still must be investigated and prosecuted. In some cases, the police and DA are unwilling or unable to do that work. In others, victims of decades-old crimes no longer want to pursue charges, have moved, or have died.

And even in cities that have tested old rape kits, convictions are rare. A Michigan State University study of Detroit’s rape kit testing efforts concluded that few of Detroit’s neglected cases were properly handled — even after rape kits were tested.

Meaghan Ybos and Heather Marlowe are the co-founders of People for the Enforcement of Rape Laws. The views and opinions expressed in this article are theirs and do not necessarily reflect the views of the Fair Punishment Project.

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San Antonio DA Nico LaHood, an Anti-Islam, Pro-Death Penalty Democrat, Faces Former Pal in Primary

Nicholas “Nico” Lahood

San Antonio DA Nico LaHood, an Anti-Islam, Pro-Death Penalty Democrat, Faces Former Pal in Primary

He’s a death-penalty championing, Islam-bashing vaccine skeptic who believes the U.S. is “rooted in Christian principles.” And he’s currently campaigning for re-election in Texas as the district attorney of Bexar County, a populous county of nearly two million residents, close to 60 percent of whom are Hispanic — as a Democrat.

But Nico LaHood isn’t just a conservative Democrat. He is more ideologically aligned with Texas Republican Governor Greg Abbott and President Trump than he is with members of his own party. His opponent in the March 6 Democratic primary next month is local San Antonio defense attorney Joe Gonzales, who has called LaHood a “wolf in sheep’s clothing.”

Gonzales used to be LaHood’s friend and business partner. But now he says that rank-and-file Democrats “would be shocked” if they heard some of the things LaHood has said and done.

In the summer of 2016, for instance, LaHood appeared on the conservative Joe Pags’s nationally syndicated radio show, based in San Antonio, and called Islam a “horrifically violent” religion, claiming Muslims “tried to set up a Sharia court” near Dallas. LaHood was simply repeating a debunked news item published by Breitbart, which the Houston Chronicle dubbed the “Texas Hoax of the Year” in 2015.

Meanwhile, in a 2016 appearance on the Doc Owen Show, a Trump-supporting conservative radio program out of Texas, LaHood warned of the “dangers” of Sharia law, saying it mandated the death of gay people, that women were treated like property and could be beaten for insubordination, and that it sanctioned genital mutilation. “Let’s talk about Islam,” he added, shifting gears to immigration. “I am not supportive of bringing in a bunch of refugees without any type of background check. And we cannot background check them,” he said. “There’s no way.”

He’s been equally outspoken on vaccines. To coincide with the April 2016 release of the documentary Vaxxed, directed by disgraced former British doctor Andrew Wakefield about his (later found to be fraudulent) research paper on the supposed link between the MMR vaccine and autism, LaHood positioned himself as a spokesperson for the anti-vaccination movement. From behind an office desk, Lahood appeared in a video posted to Wakefield’s Autism Media Channel Facebook page, saying: “I’m the criminal district attorney in San Antonio, Texas. I’m here to tell you that vaccines can and do cause autism.” LaHood then talked about his own son, whose autism, he believes, was caused by vaccines.

“His position on vaccines actually could harm public safety and health,” wrote Brian Chasnoff, a columnist for the San Antonio Express-News in August 2016. Chasnoff quoted the president of the San Antonio Pediatric Society, Dr. Sharvari Parghi, who reportedly addressed LaHood’s comments without naming the DA. Vaccines are “the ONLY way to prevent threatening diseases such as measles, mumps, polio and rubella amongst many other diseases,” Parghi said. A year later, after other critical articles, LaHood barred the Express-News from press briefings.

But it’s not just LaHood’s controversial statements that have critics riled up. Last year, allegations of misconduct were leveled against him when he prosecuted a murder case. LaHood’s former friend Gonzales, who was representing the defendant in the case, claimed that a prosecutor from LaHood’s office withheld exculpatory evidence about a previous sexual encounter between a witness and a fellow prosecutor. He also claimed LaHood threatened to destroy the legal practice of Gonzales and co-counsel Christian Henricksen if they pursued the claim in court.

The presiding judge in the case said she’d heard LaHood threaten the defense attorneys, calling it an unprofessional rant that could be subject to sanction in another tribunal. The Express-News weighed in, saying the state bar should step up after a complaint is filed. In its January 2018 issue, Texas Monthlymagazine bestowed on LaHood the dubious distinction of “bum steer” — its annual effort to poke fun at Texas politicians and policies — specifically citing his threat to “shut down” Gonzales’s legal practice.

Since then, the bad blood between LaHood and Gonzales seems only to have worsened. At the beginning of February, LaHood accused Gonzales of specializing in defending clients accused of child abuse. Afterward, a political action committee backing Gonzales and funded by the billionaire George Soros sent a direct mailer to voters with a cut-out picture of LaHood’s head on a shrugging body that accused him of being prejudiced and intolerant.

LaHood asked members of the public in a campaign ad what people like Harvey Weinstein, Larry Nassar, and Soros all had in common. The answer? “They all want Joe Gonzales to be the DA of Bexar County.”

When LaHood isn’t gunning for his opponent, he is running a seemingly regressive DA’s office. Last summer, a report by local TV station Spectrum News showed that Bexar County’s jail population was bursting at the seams, at 98 percent capacity. There was also a surprising uptick in female prisoners facing minor drug charges or accused of prostitution, theft, or DWI.

Last fall, LaHood announced a new pilot program to deal with low-level misdemeanor offenses, such as driving without a license, theft of amounts under $750, or possession of less than four ounces of marijuana. But by the beginning of this year, the so-called cite-and-release program still hadn’t been launched. Five months after the announcement was made, LaHood’s office announced that the program would finally be implemented — albeit solely within the Bexar County sheriff’s office — and that it would expand in the future, but that it was not mandatory for law enforcement agencies.

On the death penalty, he has said the justice system should “be swift,” adding that in Texas, “we have something called capital punishment. It doesn’t get any swifter than that.” But the opposite is true. An investigation by the Houston Chronicle last year found that 13 percent of Texas death row prisoners wait 25 years or more for execution, nearly a decade above the national average. LaHood has also said he favors Texas’s controversial law of parties, which allows juries to sentence a co-defendant involved in a crime that results in murder to death even if that person didn’t know the crime was going to happen.

And his stance on sanctuary cities and immigration is murky at best. While he urged Texas Governor Greg Abbott to veto SB 4, legislation that would outlaw sanctuary cities, he said he understood “the spirit of what the governor was trying to do, and I appreciate it.”

Despite criticism, LaHood is still the frontrunner, according to David Crockett, chair of the department of political science at Trinity University in San Antonio. He said LaHood’s biggest challenge is the primary against Gonzales, but if he wins that, he’ll have the upper hand against his Republican opponent in the midterms. “Barring something really strange happening, the incumbent has the edge,” Crockett said, “even in his fight for the nomination with the other Democrat.” When it comes to the general election, Crockett added, LaHood’s party affiliation is a boost. “With a Trump presidency, Democrats will gain ground and a bunch of them will be elected in Bexar county … expect Republicans to be on the defensive.”

Ironically, when LaHood unseated Republican incumbent Susan Reed after her 16-year reign as DA in 2014, it was a year in which Obama was still in the White House. “It should not have been a Democratic year because Obama lost ground in the midterm elections,” Crockett said, “but LaHood had some high-profile endorsements.” These included San Antonio Spurs basketball team members Tim Duncan and Tony Parker.

He also had at least one donor with very deep pockets. According to the Express-News, LaHood raised about $1.2 million for his 2014 race from Texas-based personal injury lawyer Thomas J. Henry. This time, the newspaper reports, he received $100,000 from Martin Phipps PLLC, whose law firm is representing the county in a suit against opioid manufacturers. Gonzales, meanwhile, has accepted nearly $1 million in donations from a political action committee funded by Soros.

Regardless of whether LaHood’s opponents see him as a DINO — a Democrat In Name Only — Crockett said candidates for DA have to give people a compelling reason to vote contrary to how they voted four years earlier. “LaHood is a personality,” he said. “And people don’t necessarily dislike personalities.”

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