Bail reform - the discovery element

New procedure places hardship on police, DAs

By Terry Duffy

Editor-in-Chief

Part II

A recent Sentinel issue discussed New York state’s recently enacted cash bail reform law and how it affects law enforcement.

One area that’s said to have significant impact on a police officer’s day-to-day enforcement responsibilities involves what is called the discovery element.

According to Lewiston Police Chief Frank Previte, “Discovery is the district attorney’s office and the police department (working) in conjunction with the district attorney’s office, providing all of the material to be used (from evidence) to prepare a case. And (that) has to be disclosed and given to the defense.”

For Lewiston Police, as well as law enforcement in general, that translates into a lot more work spent on the part of an arresting officer or agency to prepare a case before the courts.

“It is a lot more work; I can tell you in a department like Niagara Falls, (they have) to assign someone just to that. So it’s taking up a whole spot in some departments where that could have been used for policing and have somebody on the road,” Previte said.

“For us, it’s taken up my captain’s time exclusively in getting that stuff to the district attorney’s office because, if we don’t get it then in that specified amount of time, then it becomes a challenge to them as to whether they can even use it – it might be lost.”

For police agencies, particularly the busier ones, the discovery element greatly impacts overall department efficiency.

“It’s the arrests; the amount of arrests. So on the arrests that you have, once the person is arrested, then that time kicks in for discovery, where we have to provide it right away,” Previte said. “So, what I have to now, what I didn’t have to do before, is I have to have one of my officers (handle this).

“Not only does he have to do that with all the arrests, but in the beginning of this (it’s time consuming). The district attorney’s office (sends) us a list of all the offenses that we had to go in backwards, and take care of.

“For us, a busy department, that can be a lot of work, to get together 20-some, 30-some, 100-some arrests, and get all that information together and send it to the DA’s office.

“When we make an arrest now, there’s a checklist. We have a checklist now, and that checklist, pretty much you have a certain amount of time; a clock starts clicking when a person’s arrested.”

Previte briefly discussed what this entails.

“We have to compile all this information, get this information (and) transmit it to the DA’s office; the DA’s office then has to compile all that information and get it to the defense attorney within 15 days.

“The problem with that is, it includes a lot of stuff on there. Some of it is going to come from different agencies, like radio calls, a dispatch call. Everything is discoverable that happens on a computer (report). All of this stuff has to be compiled and sent (and there is multiple agencies involved).”

Previte said that, in the case of a driving while intoxicated arrest, for example, that involves the officer having to compile information in more than 50 areas of evidential proof on a compliance checklist, as well as other details – witness information, any contraband, any other information deemed necessary in the case. And there’s a 15-day timeframe to get it done.

 “So, say we make a DWI arrest and stay with that person (the defendant). We take that person and arrest them for DWI, and they go ahead and get tested at the State Police barracks (for BAC or drugs). Now that is discoverable, everything we have done up to that point is discoverable, all of the transmissions. You have already involved three agencies – Niagara County for the dispatch, all of the dispatch transmissions and everything for the call (is) discoverable; all the body camera footage is discoverable. All that has to be collected, and given to the DA’s office within days.”

Previte argued the new discovery component places undue hardship on police. He also said, as this legislation was crafted, primarily by downstate interests, police and the DAs – those primarily responsible for carrying it out – were not given the courtesy of commenting as to its potential impact.

“We never have been contacted (on this),” he said. “In the time I’ve been here, I cannot think of one instance where we have had a district attorney’s (office) call us to say, ‘Hey, they’re (the state) bugging us for (information).

“It was pretty seamless (the earlier evidence-sharing procedure), and we provided to them what we need to provide to the DA’s office. They requested what we needed. As far as I know, we never got any complaints or concerns that it wasn’t being provided in a timely fashion. I don’t believe (that to be the case). There’s nothing that I’m aware of.”

And as to the argument of the resulting impact on defendants remaining too long in holding centers due to lapses in providing discovery information, and the impact on bail, Previte said, “In my time as police officer, of 23-24 years, that was easily fixable. There’s things in place. In other words, if you get arrested, if you have an attorney … they can appeal the bail that is set and have that and have a bail review at any point after the bail is set.

“Instead of making a mechanism (bail reform and the discovery factor), there is an easy way to fix that, if you are familiar with the system. You find out a defendant’s financial status and make an exception (with respect to being held).

“But to make that exception for anybody, just doesn’t make any sense.”

And that just makes it more cumbersome for the officer, particularly those in larger, busy departments, he said.