May 13, 2025 • 43 mins
Today we talk to Waye County distrcit attorney Christine Callanan and Defense attorney James Riotto about the changes in the New York State discovery law changes.
They talk about how it affects their jobs and they people they represent.
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They talk about how it affects their jobs and they people they represent.
Become a supporter of this podcast: https://www.spreaker.com/podcast/echo-podcast--6304100/support.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Yeah, okay, welcome everyone to another episode of Coach Today.
It's a very exciting and love racking day because we're
gonna be serious. They got very seriously to important people
(00:23):
with me today. They're taking time from the very dissatius
to inform me and some of you guys as to
maybe someday down to a level that I can understand.
Today we're going to be talking a little bit about
the discovery lot, in which anything it seems to be
always hot bit of contradiction, whether good or bad. So
(00:50):
today we have Christiane Caleman from the Wayne County Public
Defenders offers and James Riotto, a public defense attorney a
private defensive You guys introduce you so m.
Speaker 2 (01:05):
Yeah, Christine Callonon and the District Attorney of Wayne County
have just recently been elected, but have been a prosecutor
for over fourteen years, seven years in Monroe County and
now seven years out here.
Speaker 1 (01:19):
Awesome, thanks you so much. Here working with both of you,
I can I know that you both had a lot
of experience had it so yeah.
Speaker 3 (01:28):
Yeah yeah.
Speaker 4 (01:30):
James Riatto a criminal defense attorney located Rochester, New York.
Our office handles cases throughout the state, but the same
amount of time has experienced as missus Camlan about fourteen
years before that. It was a trooper for quite a
period of time as.
Speaker 1 (01:43):
Well, and so we've got some experience on the road
as well.
Speaker 3 (01:47):
Correct.
Speaker 1 (01:48):
Now some of the things that I had been you know,
reading them to like everybody else, he seems to be like.
And now given all this conversation started with as a
coach that I saw on an interview that you have
with a new sixteen where we had brought up objects
(02:10):
where something like time restrictions and metting up with how
you were able or creating general was able to work
in the chase. When they hoped got it back into
the nineteen, people were you know, already had an issue.
So I wanted to see if both of you maybe
change providers a little bit of what what were the
(02:32):
issues before and what was updated? If I'm not running
this in the last few days, there was already the
change that passed and everything got all the new rules correct, correct,
So what do we expect now, Like in your case
at Ada, how did it change for you?
Speaker 2 (02:50):
So when the legislation was proposed, initially a lot of
the issues that were being addressed were from downstate. UH
in New York City, there had been a lot of
issues with discovery, turning files over, providing information to defense.
Speaker 5 (03:10):
Jim could probably speak to it more.
Speaker 2 (03:12):
He's practiced more throughout the state as to that issue.
In Monroe County where I started, and in Wayne County,
which is where I was when this reform went in,
we always had an open file policy, so we didn't
withhold information. We didn't make those choices. The timelines were
different then on when we would have to disclose things,
(03:34):
so we did follow those timelines.
Speaker 5 (03:36):
But I came.
Speaker 2 (03:37):
From offices and have always practiced in turning things over.
That isn't the case in all offices across New York State,
and it caused issues with defense attorneys getting informations, defundants
getting informations and files and paperwork, and so as a
whole and a collective. They decided to address that by
(04:00):
making basically what had been in place with the offices
that I were already practicing in codified in the fact
that they had had to turn over everything and basically
had to have open file policies that weren't in place,
but also in doing so, set up specific timeline that
required the people to turn them over in a different
(04:21):
timeline and then also had punitive measures for any failure
to do so, which was different from how we previously.
Speaker 1 (04:27):
Correct Yeah, because I normally in court at least when
I interpreted like okay, you're supposed to basically give everything
and everything, whether sculpturer or not, and you have a
time frame to do it. Now, I also understand it's
(04:47):
different when state and federal and all the God, that's
mixed up in my head. What is the timeline? Like
that said, some of the kingises to addressive volume, right,
like to give you an exception if the or something
like that.
Speaker 5 (05:05):
So, yeah, the timeline did change.
Speaker 2 (05:08):
It used to be more predicated on if there were
hearings going on or prior to a trial, that these
things had to be disclosed by grand jury minutes for example,
which is of a confidential proceeding, that people could withhold
disclosing those until the time of trial or prior to
a witness having to testify where I'm in Monroe County.
(05:31):
When you were prosecuting homicides or highly sensitive cases like that,
that was very beneficial.
Speaker 5 (05:36):
For witnesses that felt scared or threatened.
Speaker 2 (05:41):
In this new era of unless you can have an
articule basis detective order. We have to turn those kinds
of things over immediately upon receipt as soon as possible.
There are some extensions built in that we could ask
for from book Coort, but basically the default is everything
as soon as possible.
Speaker 1 (06:02):
Well, but we're we're holding it back in like how
far back into their product, because this thing's going to
go for months or sometimes a year two Right.
Speaker 2 (06:12):
Our policy prior to Discovery reform was prior to jury selection,
any witnesses whose grand jury testimony hadn't previously been turned
over for the purposes of hearings would be disclosed prior
to jurys.
Speaker 1 (06:25):
I do understand wanting to keep the secrecy of the
view of the witnesses until that minute. How does that
affect the defense? Like in your case, evidence has been
turned all the way to the end of it. How
do they need changes?
Speaker 4 (06:40):
How do you think those Well, candidly, I think it
was was helpful. I mean, at the end of the day,
we really just want to be advocates for our clients,
and having as much information really available about what was
going on as early as possible help us helps clients
make informed, you know, formed decisions on how to go
forward prior to twenty twenty. A lot of police reports,
(07:01):
a lot of statements, a lot of things that we're
getting now we didn't get. We didn't have that information.
So uh yeah, there could be there could be uh,
you know, prior if the person had been in trouble before,
or if there was other issues with uh with with
negative you know, negative information about maybe one of the officers,
(07:22):
something like that.
Speaker 3 (07:23):
We wouldn't necessarily get that till rite before trial.
Speaker 4 (07:25):
And I don't think I had that experience on Roe County,
but there were all the counties where we'd walk in,
we'd have already gone through the motions and we're picking
a jury, and all of a sudden, the prosecut will
drop off a box of stuff saying here's here's here's
your discovery, here's your Brady, here's Yoursario.
Speaker 1 (07:39):
Stuff to find middle ground in between those two, making
sure that they get everything with some time, and that
you will also get enough time to give it away
because part of like, how do you guys feel about
the time being too short on giving stuff, Like I'm
pretty sure you lost being able to get thing that
(08:01):
they are.
Speaker 3 (08:01):
Yeah, the sooner the better.
Speaker 4 (08:03):
It's it's better for us because if if it's something
where there's there's you know, information that like, look, you know,
there's there's no doubt this happened, there's really no there's
no factors that we can kind of work out to
try to get a thing dismissed, and then it's the
best option for us to discuss with a client. Maybe
there's a better, better option as far as making an offer,
but if if there's stuff that we don't know, we
(08:23):
don't have, then really it's hard to you know, inform
the client about what the best option going forward. I
think I think it just makes the system better.
Speaker 5 (08:35):
I don't disagree.
Speaker 2 (08:36):
I've always been of the practice in the mind like good,
bad or indifferent, everyone should know exactly what the case
is because that's what it is.
Speaker 5 (08:43):
Right.
Speaker 2 (08:43):
We're not here as prosecutors to lie or deceive, like
we have to deal with the facts as they come
to us and the cases that comes to us. So
gamesmanship in any way like that with a with a prosecution,
I don't think is justice at all for the victim
or for the funds, which my obligation is to do
that for everyone involved in the system. I think there's
(09:08):
a characterization of prosecutors out there that all we want
is to send.
Speaker 5 (09:11):
People to prison.
Speaker 2 (09:12):
All we want is to you know, lock the jail
cell and throw away the key. And that's not what
my job is. That's not how I've ever been raised
to be a prosecutor. Is to do what's fair and
just for everyone in that courtroom. And although defense attorneys
may not agree with it sometimes or even my victims
might not.
Speaker 5 (09:28):
Be happy with an outcome, that's my obligation.
Speaker 1 (09:31):
First, I have to say the the fly on the wall.
In many places, you both suffer a different reputation. All
three meaning the preb the public defenders have a reputation,
or the work the DA has a reputation. Like you said,
(09:53):
they don't care about anything but to put through and
will no matter what. And you get the public defender's reputation.
If it's a sign. As a private attorney, he's a
door if you're paying the full rate. But if you're
assigned your youth right because you're free. So you guys
are already fighting battle aside from in house lawyer and
(10:16):
no types of stuff. Now, and this is gonna sound
like a really super question I'm sure because some of
the reports. I was really to say that part of
the whole thing is because there was an increase of
this metal cases because you couldn't get radiation and get
the stuff ready and whatnot. At about four hundred and
fifty five percent increase in twenty twenty. And part of
(10:42):
the whole thing is going through the evidence, get interview
to give out to them. But if the rules say
is that everything has to be turnine a site like
with witnessing witnesses, information and stuff like that would be
the only difference why you can just grab every turn
it end and you like have to go through every
(11:03):
little bit beforehand.
Speaker 4 (11:08):
I think you're saying that we able to get cases
dismissed for the people not providing all the discovery.
Speaker 3 (11:13):
Is that is that accurate?
Speaker 1 (11:14):
Yeah? Like I said, like spleet the Hands to Discovery timeline,
how much case dismissal procedual errors have increased by four
hundred and fifty percent twenty twenty with a current dismas
the rate of sixty in your city a fright from
the rest of the space.
Speaker 4 (11:34):
Yeah, I mean we we've had a significant number of
dismissals throughout the state based on failures to comply with discovery.
Speaker 3 (11:42):
But in the cases that.
Speaker 1 (11:43):
Were warranted, whether they should have absolutely been follow.
Speaker 4 (11:48):
No, I might there's they're definitely warranted. The situations where
like vast amounts of discovery are are missing. I can
tell you that, you know, we don't file that motion
unless you know it's in our opinion there's there's a
lot of discovery that's missing and it's not accounted for it,
and in our opinion that it just what it's not there,
you know, minor things, you know, tiki tech things. We
(12:11):
don't file that motion. And I'll be honesty when we
we've I've seen other attorneys trial file emotions and the
courts generally, I mean, I can't speak for downstairs, but
upstate judges aren't having it. They'll give the prosecutor at
least a pass on some of the minor things. It's
the ones that we've we've successfully done. Is it's just
where there are things that are are glaringly, glaringly obvious
(12:31):
that are missing that should have been turned over.
Speaker 1 (12:34):
And it's not completely different. I'm not gonna here. I
have no idea what a city courthouse when it comes
to the volume that I mean some of the files
he did, what aarabytes and data something like that.
Speaker 4 (12:50):
Yeah, well I'm having I have we have a bunch
now where we get discovery it's yeah, we need like
hard drives to download it all. And it's a lot
of a lot of I know, it's a lot of
works for the prosecutor. I'm sure Christine can tell you
more about that, but it's a lot of work for
us because you know we're getting we got to process that.
We got to make sure we know we're identifying everything
we have, then noting what we're missing, and then with
the recent with the changes in May I think it
(13:11):
was May of twenty twenty two, we actually have an
obligation now to let the prosecutor now, hey, you forgot something.
You can you take a look at this again. So
before we can even filew that motion, now I have
to tell a prosecutor, Uh, you know we're missing some stuff.
Speaker 3 (13:24):
Can you take a look?
Speaker 1 (13:27):
Yeah, I mean I do notice that you guys do
all dad and have a very a very good relationship
with all in all, I've leased in all the different counties,
and where are we getting that much affected on our
(13:48):
negative way about what's happening in the activities and having
the smilations that they do over there, there's this play
we're in a completely different based on how our court
run over here.
Speaker 5 (14:05):
I think there's a difference, for sure.
Speaker 2 (14:07):
I think when you are in Upstate, we have smaller
legal communities.
Speaker 5 (14:12):
We deal with each other a lot, and so there's a.
Speaker 2 (14:16):
Different requirement to know that you're going to see these
people again, and you can't just.
Speaker 5 (14:20):
Be in one court room once and the'll never see
them or deal with them again. So I do think
it changes.
Speaker 2 (14:25):
I do disagree with the fact of dismissals. We have
seen an uptick in Wayne County.
Speaker 5 (14:32):
A lot of our.
Speaker 2 (14:33):
Judges have, although we now have different guiding standards from
the Fourth Department prior.
Speaker 5 (14:39):
To that when we were litigating things in local court
on ninety day.
Speaker 2 (14:44):
So the dismissals that are being requested are actually it's
a two part request. They're saying we haven't met our
discovery standard and then based on that, we haven't been
ready in.
Speaker 5 (14:55):
The time allotted to prosecute.
Speaker 1 (14:58):
What is that now?
Speaker 2 (14:59):
That is thirty thirty times, So for a misdemeanor, it's
ninety days for a misdemeanor, for a felony, it's six months.
Speaker 5 (15:09):
So again it for.
Speaker 2 (15:12):
A misdemeanor in a town court that it could maybe
have three appearances in the time that the case is pending,
in the ninety days maybe, And prior to court decisions,
our judges were taking it to be a very strict
liability standard. It wasn't a good faith in due diligence,
which is what the statute said, because the argument that
(15:33):
has always been put forward by defense attorneys is if
something is missing, how much due diligence can.
Speaker 5 (15:39):
You say you've really directed if you miss something.
Speaker 2 (15:44):
Right, So if you haven't, even if it is a
small thing you missed, you still missed it. And so
you couldn't have practiced due diligence because you missed it,
and due diligence would have caught it. And since you didn't,
you can't be ready. And since you can't be ready,
the case needs to be dismissed. So New York City,
based on volume, their numbers are going to just be
(16:05):
higher in general when it comes to these types of
issues and being able to do it. But I wouldn't
say that we don't see it. I think that's that's
kind of as the practice has gone on in court
cases have come on to say, you know, really, there
has to just be we're not looking for perfect prosecutors
because that's unreasonable. We're human, we're humans still performing this job.
(16:26):
So we deserve the opportunity to actually be held to
a standard that's reasonable of good faith and due diligence.
And so the courts started utilizing that standard and like
applying it to analysis of appeals under the new discovery law.
And now that's clearly come forward in the Discovery reform
(16:48):
that was passed in the New York State budget because
I think everyone has found that that should be a
standard and that we shouldn't be holding prosecutors to unachievable goal.
Speaker 1 (17:00):
Of six months.
Speaker 2 (17:04):
You have to know, the timelines haven't changed, it's the
language in it has changed to allow courts and give
guidance to the courts more of what really should require
the most extreme remedy, which is dismissal. So as a
part of discovery, the people are required to file what's
known as a certificate of compliance. We've done what we're
(17:27):
supposed to do under discovery. We've turned all of these
things over based on us now being in compliance.
Speaker 5 (17:34):
The people are ready.
Speaker 2 (17:35):
For trial, and it stops at thirty thirty clock when
we can state we're ready. Prior to discovery reform, I
could walk into court hand Jim and indictment and say
that people are ready for trial without giving him discovery
or any of the disclosures necessary. When discovery reform occurred,
(17:56):
they directly tied the people's readiness to discovery, which was
a thing that has had I believe and what has
caused for these reforms to go through in the budget
is unforeseen consequences of these dismissed because they directly linked
our ability to be ready for trial and discovery compliance,
and the negative outcomes and impacts that have resulted from
(18:18):
that have resulted.
Speaker 5 (18:19):
In now the reform and the state.
Speaker 1 (18:21):
Budget impact that we were in concept there were impact.
What can I impact with that?
Speaker 2 (18:34):
Well it became kind of it was it's become more
of a sword than a shield right for UH defense
attorneys and motion practice and doing these instead of it
as I would have read it and thought the intentions
of the statute and discovery reform being to be like
something that helps defendants, that protects them. We give them
all of the discoveries. So good better and different. They
(18:56):
have everything, they know everything we know, and we try
the case as there's no gamesmanship. We're not hiding anymore,
and that's how we move forward. But in a lot
of cases, and what the reform and the goal of
the reform is to take away this reform being used
as a sword against prosecutors and gamesmanship being done by
(19:17):
some defense attorneys that no matter what the prosecutors do,
there will never be a prosecutor that practices good faith
and due diligence, that emotion.
Speaker 5 (19:25):
Will always be filed.
Speaker 2 (19:26):
I didn't I haven't done a trial since twenty twenty
where emotion for discovery compliance hasn't happened the week of
or the day of jerason.
Speaker 5 (19:35):
Like because it has become an affirmative.
Speaker 2 (19:37):
Attack and defense no matter what level of piece of
paper or something that is missing or was missed by
both parties until trial preparation. I think the legislature saw it,
I think the governor saw it, and I think that's
why they've tried to work it back to put some
obligations on the defense to more affirmatively work with us,
(19:59):
to put them on time lines for challenging our CEOC
as well as actually putting in the statute recommendations to
analyzing whether our certificate of compignts is valid, including a
standard of like good faith and due diligence and multiple factors,
not just that strict liability that one piece of paper
(20:19):
is missing, therefore there's no chance you did what you
were supposed to do.
Speaker 1 (20:23):
Yeah, pretty sure. Some people at some point may have
taken advantage of that. Obviously, now somebody, like in this case,
I know they are worth a trial, and usually at
some point the defense will always have a motion council
(20:44):
be to the bird and whatnot. Wouldn't they fall into
something like that, Like there's a necessary step to make
sure the sense attorney covers all their bases.
Speaker 2 (20:59):
If that's me, and I would for me, I think
there's always an obligation to be a zealous advocate for
your client.
Speaker 5 (21:07):
I do not doubt that. I know that is a
duty that people take very seriously.
Speaker 2 (21:14):
I also will have a fundamental problem where I see
motions that are coming in that everyone's had the same
discovery for the same amount of time, and everyone's missed
this one body worn camera for a deputy down across
the corner of the street, who wasn't in the CAD
but somehow somebody finally catches it right before trial, and
(21:38):
that should result in a dismissal.
Speaker 5 (21:41):
The fact that there are motions all.
Speaker 2 (21:42):
The time that come in and immediately question a prosecutor
as good faith and due diligence. And I'm not saying
that there aren't some that don't do the job the
way they should.
Speaker 1 (21:52):
But when you show up about it, why not bring
it up and.
Speaker 5 (21:59):
Let's just do this together. Let's get that. I want
to try the case as it is. I'm never trying
to hide anything.
Speaker 2 (22:05):
That's never been my practice, that will never be any
of my prosecutors practices, but to constantly always show up
and there never be regardless of how small or big
the discovery.
Speaker 5 (22:14):
Violation and the court.
Speaker 2 (22:16):
We've had cases in the fourth apartment, one from Ontario
County saying, you know, the DA showed up and said
they didn't have it, they didn't have it, and that
just wasn't good faith because there was stuff that they
did have.
Speaker 5 (22:28):
Well, there was a case.
Speaker 2 (22:29):
From one of my trials on appeal where the defense
attorney emailed me said, hey, random body worn camera missing,
need it. Immediately got her the camera figured out where
it was got it, sent it to her and they said, okay,
this is a case of a lot of discovery. Once
it was brought to the prosecutor's attention, she remedied it,
and so they found that I still acted in good
(22:50):
faith and with due diligence, even though there was body
worn camera missing, because there was no me repeatedly showing
up to court saying it doesn't exist. It doesn't exist,
like once it comes to my attention, I immediately address
those issues because I.
Speaker 5 (23:02):
Never want to withhold things. It's never an intentional, deliberate thing.
Speaker 2 (23:06):
So it just it gets to be a difficult practice
where it feels like as prosecutors, and I'm sure Jim
has it when he's reviewing discovery, you feel like you're
chasing your tail because we aren't even talking about facts
and cases anymore. We're talking about a note card.
Speaker 1 (23:21):
What do you think, Jim, because you have a oh,
like somebody working for a specific offers you likely you
get a bird view or some but you actually practice
and all of those I don't even know what the
hell I'm interpreting half the time because I don't understand laws.
(23:41):
Do you come? Do you see that a lot what
do you what do you take of it?
Speaker 4 (23:45):
Well, I mean I could say that, I mean we've
done a lot of emotions throughout the state on this
and whenever, whenever it's come up, it's it's never like
one piece of paper or a note card that's that's
resulted in a dismissal. I can tell you that that
that's not the case. It's been a usually a very
significant issue. You know, We've had a couple of cases
where we pointed out we're missing stuff and like Christine
(24:06):
said that, you know, the prosecutor would say, you know,
that doesn't exist, doesn't exist, and all of a sudden,
up there it is. So those situations have come up.
But in the other cases that we've had dismissed, it's
it's always been something like substantial. There's always been a
lot of discovery that wasn't provided that clearly should have
been should have been found. It wasn't something that was overlooked.
It was definitely within the course of the case itself.
(24:29):
And I can say, like, you know, the counties that
we deal with, a lot of counties really have this
thing like locked down, like they just just knock it down.
Like we've we've had cases in Erie County and when
when the discovery, like when you put the notice of
the pearance in, they are immediately send you stuff like
here's here's everything, and they just really have their system
down solid where whatever it is you need, you've got
(24:52):
and then there's really no chances for any of this
dismissive stuff.
Speaker 1 (24:56):
I need to take New York City and here I
thought it'd be more like our area, you guys, and
I am a witness on many different places, although the
unit side courses and is very not unified weekend and
they have silly rules for everybody to follow the thing.
(25:21):
I guess, I guess I'm I'm a little confuseder to
why don't we make it? Well, No, in mind that question,
I was completely wrong. Sorry, So how do you see
it happening for you now? How do you see it
going forward? Like I gad about it changes enough.
Speaker 3 (25:40):
Well, I'm not really excited about it.
Speaker 4 (25:42):
No, I kind of liked what we had obviously, I mean,
I think it was it was obviously very beneficial for
the defense what we had. But you know, in terms
of I guess trying to get to the right outcome,
I think it's it's maybe a step in the right direction.
I don't think it's something where you know, again, if
we were missing stuff, we would so certainly reach out
and say, hey, look we're missing something.
Speaker 3 (26:01):
You might take a look at this. We didn't immediately
start dropping emotions.
Speaker 1 (26:05):
Yeah, like they kind of lawyers where they will go
ahead and say, you know what, I got a murder
on my hand that I know is so because I
see all the video. There's no way of anything, and
they're gonna use that. We forgot to put the logo
on this, all the page to put up, you know,
the cover page on the document, and now that's gonna
(26:27):
get everything just lives compared to let all do our
best and do you know with all that little quickly,
I'm not talking that you're doing your life because obviously
I know you don't. You're not that kind of way
of most lawyers. I'm not that kind of lawyer, just
like most in the Seals are there because they're passionate
(26:49):
about justice, whether it's punishment, whether it's release, whether it's something.
Most of us are in it because we love the
system and we will gonna make it see it through.
And I know you to that kind of people as well,
but I do see though, how if you're telling me,
(27:11):
you know what, I have five trials. They are on
extremely high volume, where we only did one every two years,
and then all of a sudden, I'm delayed for a month.
I need another month to give you all the documents.
I can't see why that was just fair. But I
can also see your point. Enough now you're taking my chances,
(27:32):
you know, if you're not ready drop it. The coming
from a country life venis, I see that. Uh, that's
not that a month or two though, And that's just
my opinion because and when I feel like you get
(27:54):
picked up and two years later you have your first
quarter play to read your sometimes you don't even have it.
You just get released again and out you go. So
from my point of view, for example, it is completely
not perfect. But I see that upgrade up there in
(28:15):
a good direction though, because it allows for the real
feminals to be persecuted. It put fix the work on you, right,
because now you know, not you, but you have to
put the work on the defenders, I should say on
the defenders, because they're taking away that extra You really
(28:36):
only have this much time kind of I can set
off for it where they say you only got six
months or something to charge somebody, and then two years
later and it's like, well, but I still don't have
our n actual cards. Well because the time tick's getting,
you know, postpone and not counting then whether and whatnot,
I don't know. I'm on the fence, I gotta say,
(28:57):
because it does sound fair, and it doesn't sound like
you're also not getting all the stuff like before. Like
here you go a week before trial. How the hell
do I get ready a week before trial with a
terabide of data and stuff to get through. I remember
those days of TVs and it was doing crazy, and
(29:18):
I remember now you guys are going crazy as well
because I don't have enough time on the day to
get all of this done, and I don't have enough
lawyers to hire it or the budgets them to get
it done as well. So I don't think my conversation
is making either of you happy, but I do think
that you both are getting that good end of it, guys,
(29:40):
because he's going towards Ellens. It's not perfecsion, it's going
towards a balance, and that was the only goal.
Speaker 2 (29:47):
I mean, the DA's association when the governor approached us
asking for support and guarding these reforms. There was never
any proposal by our association saying go back to twenty nineteen,
go back to twenty twenty, because we all readily admit
that this is the way the system should be working.
(30:08):
We should be turning everything over, we should be having full,
fair disclosure of all of the evidence. Like that's where
we are now, and that's probably where we should have
always been. That's always been the way I practice. So
it was unknownst to me that there were people that
didn't do it that way. Oh right, So that was
very foreign. So what all we were trying to do
(30:31):
was remove some gamesmanship from it, make it so there
was at least some bonus on defense to communicate with
us fully, put them on a timeline as well. So
we got thirty five days after we filed our certificate
to challenge it. Because the same way we're on the
clock to try and review all of this discovery to
(30:51):
make sure nothing is missing and get it to you,
you should have the same responsibility back to us and
letting us know that you're going to challenge because something
is missing, and you don't get to wait until the
six months is up and then go all right, you
didn't get us that thing, and now we're going to
challenge it, and now it should be dismissed like that.
Speaker 3 (31:10):
Was really our goal.
Speaker 1 (31:12):
Do they get some consideration, like they gotta be some
good place mistake sometimes and that because thirty five days
don't seem that much if it's a huge because we're
not worrying about little cases. We're not talking about the
little cases over here. Those are you know, we're talking
the big stuff. That would be weeks of reviewing papers.
(31:35):
Sometimes there are thousands of your pages alone, they're not
even digital.
Speaker 2 (31:40):
There are extensions available, Yes, the court can give if
there's good cause for a delayed application.
Speaker 5 (31:49):
To challenge it.
Speaker 2 (31:51):
They allow those extensions for them for the same reason
that we should have some flexible time too. If there's
a homicide that happens, that is hours of body worn
camera easily, and how many agencies respond, how many officers
within the agency, and you can see how quickly six
hours for one deputy turns into one hundred hours for
(32:13):
the Wayne County Sheriffs. And that's not even the troopers
that helped out or respond or Pelmira who held a
perimeter or anything like that. So again I think all
of it should be looked at in a scope that
is like fair to everyone. And that was the goal
in my advocacy for the change and the reform to
(32:34):
discovery was not to go back, not to get rid
of it, not to say old prosecutors to a standard
to uphold the law and provide what they need to
and to practice fairly. Absolutely do that. I take pride
in the fact that that's my job and what I
do on a daily basis, but also get the gamesmanship
out of it. Let's be adults in this room, have
communication and try and try the case for what it
(32:56):
is and not technicality. But let's look at the facts
and circumstances resolve this as we used to be able
to have those conversations versus post twenty twenty, where now
it is I forget times where we can actually talk
about cases anymore and not discover you don't talk about
the many.
Speaker 1 (33:13):
No's my idea of that, But wouldn't be the same
thing to be say about drinksmanship and like starting somebody's
wife for drinking and driving. One because it's technical and
the other one because you walk it. One because it's
you know, how one is based on a field so
(33:35):
variety test and one is based on the actual chemical test.
Speaker 5 (33:40):
Right, Well, that's technically a violation of two separate laws.
Speaker 2 (33:43):
That's why you do it that way, because, for example,
Jim will make the argument that the test was you know,
it was only one all and the stop was.
Speaker 5 (33:55):
Two hours before.
Speaker 2 (33:57):
So really the jury can look at it and believe
that at the time when he was stopped, because you
processed during at different rates, he could have been stopped
and he could have been a point oh eight or lower.
So the test, you shouldn't even consider the test. And
they might be you know what, Jim, that's a good argument.
Speaker 5 (34:11):
We don't like the test. We'll get rid of the test.
But then they watch them on the body worn camera
and see.
Speaker 2 (34:15):
That they're rumbly, bumbly stumbling through the field sobriety tests
and be like, you know what, he's still even if
we get rid of that test, he still wasn't able
to operate that more vehicle because based on our own observations.
Speaker 5 (34:26):
Of them, he appairs to be intoxic. Well, those are
just different.
Speaker 1 (34:30):
Theories, okay, for the same thing, because I mean we're
seeing cases. For example, I've interpreted in cases where they
say I look drunk at all, but it's a burial
language that is casting something to happen. For example, now
(34:51):
the copy is saying you're drunk, and whether because I
misunderstanding how the stat should be taken or something like that.
You're looking in that legal system until proven guilty. But
you still come out of the other side of the stewards.
Whether you come out or not, you're still muddy because
(35:13):
you have to go accord. You have to fight your stuff,
and you know you're still fighting it. And then we
got two chargets for the same thing. So but again
that's not something then by the day, that's something put
into life, So it would be a from the life.
Speaker 2 (35:35):
Yeah, I mean that's frequent on any crimes, not just DWIS.
For example, we have something that could be a home invasion,
and you end up charging someone for a burglary because
they broke into someone's home and had a weapon. You
charge them with possession of the weapon. That's the same
incident because they have a weapon. If they hurt somebody
when they went in there, you would charge them with
(35:56):
assaults while they were in the home with the weapon.
So most cases end up because you violate different statutes.
There's subsections of the same statute. You can charge robbery
under different theories if there are two people involved, and
then there's also an injury. That's still two counts of
robbery and the second degree. They're just different theories. So
that happens frequently, and our obligation is if it meets
(36:19):
the elements of the crime, we prosecute it.
Speaker 1 (36:22):
That's like people like regularly Joe, we're here, double yeah, sure,
right the law. So I don't know, what do you?
Speaker 2 (36:35):
What do you?
Speaker 1 (36:37):
What are you? What's your culture?
Speaker 4 (36:39):
No, I think it's we've made a lot of progress
from twenty twenty. I think it's it's a it's a
good step. I think for the most part, most of
the prosecutors we deal with are like Christine. They're trying
to do the right thing. It's it's the exception where
you know the prosecutors not doing anything or claiming they've
done some inquiries and it's clear that they haven't.
Speaker 3 (37:00):
So I think I think overall, I think the system
is better than it was. But so I think it
is moving in the right direction for sure.
Speaker 1 (37:09):
YEA, these are what I believe to be generational King
with is. I mean, look at how long it took
just to figure it out a few kings or five years.
Then we got to figure out what King some out
of this, and not even King. This is adjustment. It's
like get taught. We keep adust and adancing and adjustment
until hopefully we get somewhere. Now. I don't know when
(37:34):
will be the day that both sides will be completely
happy with how they work. The law works. But I
don't know, did you guys got asked about it or
was just the DA.
Speaker 2 (37:47):
No?
Speaker 4 (37:47):
I think, I mean, I mean there was like a
surveys that were done that were passing around the defense community,
and I think there's groups that the defense community had
had weighed in on opposing opposing any of the changes
that just the juice recently went through. So collectively, I
think defense attorneys throughout the state appost.
Speaker 1 (38:02):
That do you know what was the main reason that
they will post on.
Speaker 3 (38:07):
Well, I just think that.
Speaker 4 (38:10):
The transparency they were getting the information we're getting I
think was, you know, just it was a lot, but
it was very helpful for us and to making decisions
for our clients if we had if we had everything,
it's just a it's a much easier case to kind
of talk to your client about versus if you're speculating
on which you don't have, or if there's things that
that might be helpful or exculpatory and not knowing or
(38:31):
not knowing you know, back in the old days before
Discovery reform, where you were, you weren't getting anything until
right before you picked the jury.
Speaker 3 (38:39):
You know, it was obviously a big detriment for the defense.
Speaker 1 (38:43):
Although I think like now you still be able to
get everything that you need, if not everything within that
same thirty or six months time frame, you should have
at least a very vast ability of everything to at
least started doing better prepare yourself better than pre twenty twenty.
Speaker 3 (39:04):
Absolutely absolutely with everything that we're getting.
Speaker 4 (39:07):
I mean, it's just it's a much easier case that,
you know, some of the things that our clients would
would have, you know, complaints about you know, pre twenty
twenty were like.
Speaker 3 (39:15):
You know, we didn't know about this, or I didn't
know about that.
Speaker 4 (39:17):
I wouldn't have taken the plea offer I would have,
you know, I would have made a different decision on
certain things if I had known this stuff.
Speaker 3 (39:24):
And obviously, you know, you're you're trying to represent.
Speaker 1 (39:27):
Is not seen in the video, but I didn't.
Speaker 4 (39:28):
Know that, right, right, So if there's the things that
are missing, and look, you know, you know, how can
we advise you? Why why did you tell me to
take the plea? Or why did you advise me to
take the plea? And all of a sudden, the absolutely
was obviously things that we thought that maybe it would
have been good for a jury to try to decide.
Speaker 1 (39:46):
I actually appreciate you both because I think it gives
me a lot of clarity on the sid at least
to me. Maybe I'm understanding it wrong. But again I
also you hear so many, so much noise good and
bad about the governor, and I have no idea about
her because I don't really follow what she does or doesn't.
(40:08):
But at least looking into talking to their different sides
of the aisle to find out, you know, the points
of views of both, and so far I'm gonna say
I don't know many alone, but I do feel that
this is a populive step though, I mean, be able
to just find that out, you still get everything that
you need to do anything, everything that you need to
(40:29):
do to get your job and whatever you want to do.
Then they have somebody breathing down the neck telling them
what's going on. Are you gonna get it ready or
how much longer? And if not, then then there's no
reason for them to say, well, we're just tactics and
you know anything else, because now he removes us from
(40:51):
this one is meting with me, that one is meting
with me. I think it's actually a pretty good balas
because now everybody how to get attent to do the
job right, which is important thing. And then there's accountability.
You gotta you gotta be able to say what have
(41:11):
you been doing with your time? And so thank you
so much for the both of you. Any final fust
you guys want to share, Yeah.
Speaker 4 (41:26):
No, I just like I think it's appreciate you guys
having us on. I think it was a good I
think it's a good topic. I think it's a portant topic.
Speaker 3 (41:33):
Yeah.
Speaker 4 (41:33):
I think like we talked about, it's definitely go in
the right direction. I think having all this information out
there for people to know is very important.
Speaker 1 (41:41):
I would love to have you guys anytime you want
you're able to, because the way I see it, at
least the way I feel it regularly, Joe, we don't
get that training. Well, we're always using professional words, right,
we talk about it got this connected. We don't say
(42:06):
we gotta plug. So when talking about all those little things,
you guys have helped always has helped me to understand
things in a more regular link. Well, I appreciate you
guys joining me today and helping me with that. Maybe
you will be kind enough to also inform me on
(42:28):
other subjects, me and the five guys from the five People.
Speaker 5 (42:34):
Whatever you need, Carlos, I'll be here.
Speaker 1 (42:36):
Well, thank you so much for the both of you.
I I am honored because I honestly I know how
hard you both work, how fellous you are to your clients,
whether you're looking for justice or you want to make
sure that justice gets preserved, right, I don't know. I
(42:58):
don't want to tell them to say anyway, thank you
so much for both. I hope you have a great
rest of your evening, and I hope everybody else listening
or watching the show if you have any questions and
your comments on kdkop at gmail dot com or follow
us on Facebook, have a great day everyone, God.
Speaker 3 (43:27):
Thank you for listening to today's episode.
Speaker 4 (43:30):
Don't forget to follow this podcast, so if you don't
miss any new episodes, you can also search for p
K d K on your favorite podcast player for all
the other shows that we have
Yeah, okay, welcome everyone to another episode of Coach Today.
It's a very exciting and love racking day because we're
gonna be serious. They got very seriously to important people
(00:23):
with me today. They're taking time from the very dissatius
to inform me and some of you guys as to
maybe someday down to a level that I can understand.
Today we're going to be talking a little bit about
the discovery lot, in which anything it seems to be
always hot bit of contradiction, whether good or bad. So
(00:50):
today we have Christiane Caleman from the Wayne County Public
Defenders offers and James Riotto, a public defense attorney a
private defensive You guys introduce you so m.
Speaker 2 (01:05):
Yeah, Christine Callonon and the District Attorney of Wayne County
have just recently been elected, but have been a prosecutor
for over fourteen years, seven years in Monroe County and
now seven years out here.
Speaker 1 (01:19):
Awesome, thanks you so much. Here working with both of you,
I can I know that you both had a lot
of experience had it so yeah.
Speaker 3 (01:28):
Yeah yeah.
Speaker 4 (01:30):
James Riatto a criminal defense attorney located Rochester, New York.
Our office handles cases throughout the state, but the same
amount of time has experienced as missus Camlan about fourteen
years before that. It was a trooper for quite a
period of time as.
Speaker 1 (01:43):
Well, and so we've got some experience on the road
as well.
Speaker 3 (01:47):
Correct.
Speaker 1 (01:48):
Now some of the things that I had been you know,
reading them to like everybody else, he seems to be like.
And now given all this conversation started with as a
coach that I saw on an interview that you have
with a new sixteen where we had brought up objects
(02:10):
where something like time restrictions and metting up with how
you were able or creating general was able to work
in the chase. When they hoped got it back into
the nineteen, people were you know, already had an issue.
So I wanted to see if both of you maybe
change providers a little bit of what what were the
(02:32):
issues before and what was updated? If I'm not running
this in the last few days, there was already the
change that passed and everything got all the new rules correct, correct,
So what do we expect now, Like in your case
at Ada, how did it change for you?
Speaker 2 (02:50):
So when the legislation was proposed, initially a lot of
the issues that were being addressed were from downstate. UH
in New York City, there had been a lot of
issues with discovery, turning files over, providing information to defense.
Speaker 5 (03:10):
Jim could probably speak to it more.
Speaker 2 (03:12):
He's practiced more throughout the state as to that issue.
In Monroe County where I started, and in Wayne County,
which is where I was when this reform went in,
we always had an open file policy, so we didn't
withhold information. We didn't make those choices. The timelines were
different then on when we would have to disclose things,
(03:34):
so we did follow those timelines.
Speaker 5 (03:36):
But I came.
Speaker 2 (03:37):
From offices and have always practiced in turning things over.
That isn't the case in all offices across New York State,
and it caused issues with defense attorneys getting informations, defundants
getting informations and files and paperwork, and so as a
whole and a collective. They decided to address that by
(04:00):
making basically what had been in place with the offices
that I were already practicing in codified in the fact
that they had had to turn over everything and basically
had to have open file policies that weren't in place,
but also in doing so, set up specific timeline that
required the people to turn them over in a different
(04:21):
timeline and then also had punitive measures for any failure
to do so, which was different from how we previously.
Speaker 1 (04:27):
Correct Yeah, because I normally in court at least when
I interpreted like okay, you're supposed to basically give everything
and everything, whether sculpturer or not, and you have a
time frame to do it. Now, I also understand it's
(04:47):
different when state and federal and all the God, that's
mixed up in my head. What is the timeline? Like
that said, some of the kingises to addressive volume, right,
like to give you an exception if the or something
like that.
Speaker 5 (05:05):
So, yeah, the timeline did change.
Speaker 2 (05:08):
It used to be more predicated on if there were
hearings going on or prior to a trial, that these
things had to be disclosed by grand jury minutes for example,
which is of a confidential proceeding, that people could withhold
disclosing those until the time of trial or prior to
a witness having to testify where I'm in Monroe County.
(05:31):
When you were prosecuting homicides or highly sensitive cases like that,
that was very beneficial.
Speaker 5 (05:36):
For witnesses that felt scared or threatened.
Speaker 2 (05:41):
In this new era of unless you can have an
articule basis detective order. We have to turn those kinds
of things over immediately upon receipt as soon as possible.
There are some extensions built in that we could ask
for from book Coort, but basically the default is everything
as soon as possible.
Speaker 1 (06:02):
Well, but we're we're holding it back in like how
far back into their product, because this thing's going to
go for months or sometimes a year two Right.
Speaker 2 (06:12):
Our policy prior to Discovery reform was prior to jury selection,
any witnesses whose grand jury testimony hadn't previously been turned
over for the purposes of hearings would be disclosed prior
to jurys.
Speaker 1 (06:25):
I do understand wanting to keep the secrecy of the
view of the witnesses until that minute. How does that
affect the defense? Like in your case, evidence has been
turned all the way to the end of it. How
do they need changes?
Speaker 4 (06:40):
How do you think those Well, candidly, I think it
was was helpful. I mean, at the end of the day,
we really just want to be advocates for our clients,
and having as much information really available about what was
going on as early as possible help us helps clients
make informed, you know, formed decisions on how to go
forward prior to twenty twenty. A lot of police reports,
(07:01):
a lot of statements, a lot of things that we're
getting now we didn't get. We didn't have that information.
So uh yeah, there could be there could be uh,
you know, prior if the person had been in trouble before,
or if there was other issues with uh with with
negative you know, negative information about maybe one of the officers,
(07:22):
something like that.
Speaker 3 (07:23):
We wouldn't necessarily get that till rite before trial.
Speaker 4 (07:25):
And I don't think I had that experience on Roe County,
but there were all the counties where we'd walk in,
we'd have already gone through the motions and we're picking
a jury, and all of a sudden, the prosecut will
drop off a box of stuff saying here's here's here's
your discovery, here's your Brady, here's Yoursario.
Speaker 1 (07:39):
Stuff to find middle ground in between those two, making
sure that they get everything with some time, and that
you will also get enough time to give it away
because part of like, how do you guys feel about
the time being too short on giving stuff, Like I'm
pretty sure you lost being able to get thing that
(08:01):
they are.
Speaker 3 (08:01):
Yeah, the sooner the better.
Speaker 4 (08:03):
It's it's better for us because if if it's something
where there's there's you know, information that like, look, you know,
there's there's no doubt this happened, there's really no there's
no factors that we can kind of work out to
try to get a thing dismissed, and then it's the
best option for us to discuss with a client. Maybe
there's a better, better option as far as making an offer,
but if if there's stuff that we don't know, we
(08:23):
don't have, then really it's hard to you know, inform
the client about what the best option going forward. I
think I think it just makes the system better.
Speaker 5 (08:35):
I don't disagree.
Speaker 2 (08:36):
I've always been of the practice in the mind like good,
bad or indifferent, everyone should know exactly what the case
is because that's what it is.
Speaker 5 (08:43):
Right.
Speaker 2 (08:43):
We're not here as prosecutors to lie or deceive, like
we have to deal with the facts as they come
to us and the cases that comes to us. So
gamesmanship in any way like that with a with a prosecution,
I don't think is justice at all for the victim
or for the funds, which my obligation is to do
that for everyone involved in the system. I think there's
(09:08):
a characterization of prosecutors out there that all we want
is to send.
Speaker 5 (09:11):
People to prison.
Speaker 2 (09:12):
All we want is to you know, lock the jail
cell and throw away the key. And that's not what
my job is. That's not how I've ever been raised
to be a prosecutor. Is to do what's fair and
just for everyone in that courtroom. And although defense attorneys
may not agree with it sometimes or even my victims
might not.
Speaker 5 (09:28):
Be happy with an outcome, that's my obligation.
Speaker 1 (09:31):
First, I have to say the the fly on the wall.
In many places, you both suffer a different reputation. All
three meaning the preb the public defenders have a reputation,
or the work the DA has a reputation. Like you said,
(09:53):
they don't care about anything but to put through and
will no matter what. And you get the public defender's reputation.
If it's a sign. As a private attorney, he's a
door if you're paying the full rate. But if you're
assigned your youth right because you're free. So you guys
are already fighting battle aside from in house lawyer and
(10:16):
no types of stuff. Now, and this is gonna sound
like a really super question I'm sure because some of
the reports. I was really to say that part of
the whole thing is because there was an increase of
this metal cases because you couldn't get radiation and get
the stuff ready and whatnot. At about four hundred and
fifty five percent increase in twenty twenty. And part of
(10:42):
the whole thing is going through the evidence, get interview
to give out to them. But if the rules say
is that everything has to be turnine a site like
with witnessing witnesses, information and stuff like that would be
the only difference why you can just grab every turn
it end and you like have to go through every
(11:03):
little bit beforehand.
Speaker 4 (11:08):
I think you're saying that we able to get cases
dismissed for the people not providing all the discovery.
Speaker 3 (11:13):
Is that is that accurate?
Speaker 1 (11:14):
Yeah? Like I said, like spleet the Hands to Discovery timeline,
how much case dismissal procedual errors have increased by four
hundred and fifty percent twenty twenty with a current dismas
the rate of sixty in your city a fright from
the rest of the space.
Speaker 4 (11:34):
Yeah, I mean we we've had a significant number of
dismissals throughout the state based on failures to comply with discovery.
Speaker 3 (11:42):
But in the cases that.
Speaker 1 (11:43):
Were warranted, whether they should have absolutely been follow.
Speaker 4 (11:48):
No, I might there's they're definitely warranted. The situations where
like vast amounts of discovery are are missing. I can
tell you that, you know, we don't file that motion
unless you know it's in our opinion there's there's a
lot of discovery that's missing and it's not accounted for it,
and in our opinion that it just what it's not there,
you know, minor things, you know, tiki tech things. We
(12:11):
don't file that motion. And I'll be honesty when we
we've I've seen other attorneys trial file emotions and the
courts generally, I mean, I can't speak for downstairs, but
upstate judges aren't having it. They'll give the prosecutor at
least a pass on some of the minor things. It's
the ones that we've we've successfully done. Is it's just
where there are things that are are glaringly, glaringly obvious
(12:31):
that are missing that should have been turned over.
Speaker 1 (12:34):
And it's not completely different. I'm not gonna here. I
have no idea what a city courthouse when it comes
to the volume that I mean some of the files
he did, what aarabytes and data something like that.
Speaker 4 (12:50):
Yeah, well I'm having I have we have a bunch
now where we get discovery it's yeah, we need like
hard drives to download it all. And it's a lot
of a lot of I know, it's a lot of
works for the prosecutor. I'm sure Christine can tell you
more about that, but it's a lot of work for
us because you know we're getting we got to process that.
We got to make sure we know we're identifying everything
we have, then noting what we're missing, and then with
the recent with the changes in May I think it
(13:11):
was May of twenty twenty two, we actually have an
obligation now to let the prosecutor now, hey, you forgot something.
You can you take a look at this again. So
before we can even filew that motion, now I have
to tell a prosecutor, Uh, you know we're missing some stuff.
Speaker 3 (13:24):
Can you take a look?
Speaker 1 (13:27):
Yeah, I mean I do notice that you guys do
all dad and have a very a very good relationship
with all in all, I've leased in all the different counties,
and where are we getting that much affected on our
(13:48):
negative way about what's happening in the activities and having
the smilations that they do over there, there's this play
we're in a completely different based on how our court
run over here.
Speaker 5 (14:05):
I think there's a difference, for sure.
Speaker 2 (14:07):
I think when you are in Upstate, we have smaller
legal communities.
Speaker 5 (14:12):
We deal with each other a lot, and so there's a.
Speaker 2 (14:16):
Different requirement to know that you're going to see these
people again, and you can't just.
Speaker 5 (14:20):
Be in one court room once and the'll never see
them or deal with them again. So I do think
it changes.
Speaker 2 (14:25):
I do disagree with the fact of dismissals. We have
seen an uptick in Wayne County.
Speaker 5 (14:32):
A lot of our.
Speaker 2 (14:33):
Judges have, although we now have different guiding standards from
the Fourth Department prior.
Speaker 5 (14:39):
To that when we were litigating things in local court
on ninety day.
Speaker 2 (14:44):
So the dismissals that are being requested are actually it's
a two part request. They're saying we haven't met our
discovery standard and then based on that, we haven't been
ready in.
Speaker 5 (14:55):
The time allotted to prosecute.
Speaker 1 (14:58):
What is that now?
Speaker 2 (14:59):
That is thirty thirty times, So for a misdemeanor, it's
ninety days for a misdemeanor, for a felony, it's six months.
Speaker 5 (15:09):
So again it for.
Speaker 2 (15:12):
A misdemeanor in a town court that it could maybe
have three appearances in the time that the case is pending,
in the ninety days maybe, And prior to court decisions,
our judges were taking it to be a very strict
liability standard. It wasn't a good faith in due diligence,
which is what the statute said, because the argument that
(15:33):
has always been put forward by defense attorneys is if
something is missing, how much due diligence can.
Speaker 5 (15:39):
You say you've really directed if you miss something.
Speaker 2 (15:44):
Right, So if you haven't, even if it is a
small thing you missed, you still missed it. And so
you couldn't have practiced due diligence because you missed it,
and due diligence would have caught it. And since you didn't,
you can't be ready. And since you can't be ready,
the case needs to be dismissed. So New York City,
based on volume, their numbers are going to just be
(16:05):
higher in general when it comes to these types of
issues and being able to do it. But I wouldn't
say that we don't see it. I think that's that's
kind of as the practice has gone on in court
cases have come on to say, you know, really, there
has to just be we're not looking for perfect prosecutors
because that's unreasonable. We're human, we're humans still performing this job.
(16:26):
So we deserve the opportunity to actually be held to
a standard that's reasonable of good faith and due diligence.
And so the courts started utilizing that standard and like
applying it to analysis of appeals under the new discovery law.
And now that's clearly come forward in the Discovery reform
(16:48):
that was passed in the New York State budget because
I think everyone has found that that should be a
standard and that we shouldn't be holding prosecutors to unachievable goal.
Speaker 1 (17:00):
Of six months.
Speaker 2 (17:04):
You have to know, the timelines haven't changed, it's the
language in it has changed to allow courts and give
guidance to the courts more of what really should require
the most extreme remedy, which is dismissal. So as a
part of discovery, the people are required to file what's
known as a certificate of compliance. We've done what we're
(17:27):
supposed to do under discovery. We've turned all of these
things over based on us now being in compliance.
Speaker 5 (17:34):
The people are ready.
Speaker 2 (17:35):
For trial, and it stops at thirty thirty clock when
we can state we're ready. Prior to discovery reform, I
could walk into court hand Jim and indictment and say
that people are ready for trial without giving him discovery
or any of the disclosures necessary. When discovery reform occurred,
(17:56):
they directly tied the people's readiness to discovery, which was
a thing that has had I believe and what has
caused for these reforms to go through in the budget
is unforeseen consequences of these dismissed because they directly linked
our ability to be ready for trial and discovery compliance,
and the negative outcomes and impacts that have resulted from
(18:18):
that have resulted.
Speaker 5 (18:19):
In now the reform and the state.
Speaker 1 (18:21):
Budget impact that we were in concept there were impact.
What can I impact with that?
Speaker 2 (18:34):
Well it became kind of it was it's become more
of a sword than a shield right for UH defense
attorneys and motion practice and doing these instead of it
as I would have read it and thought the intentions
of the statute and discovery reform being to be like
something that helps defendants, that protects them. We give them
all of the discoveries. So good better and different. They
(18:56):
have everything, they know everything we know, and we try
the case as there's no gamesmanship. We're not hiding anymore,
and that's how we move forward. But in a lot
of cases, and what the reform and the goal of
the reform is to take away this reform being used
as a sword against prosecutors and gamesmanship being done by
(19:17):
some defense attorneys that no matter what the prosecutors do,
there will never be a prosecutor that practices good faith
and due diligence, that emotion.
Speaker 5 (19:25):
Will always be filed.
Speaker 2 (19:26):
I didn't I haven't done a trial since twenty twenty
where emotion for discovery compliance hasn't happened the week of
or the day of jerason.
Speaker 5 (19:35):
Like because it has become an affirmative.
Speaker 2 (19:37):
Attack and defense no matter what level of piece of
paper or something that is missing or was missed by
both parties until trial preparation. I think the legislature saw it,
I think the governor saw it, and I think that's
why they've tried to work it back to put some
obligations on the defense to more affirmatively work with us,
(19:59):
to put them on time lines for challenging our CEOC
as well as actually putting in the statute recommendations to
analyzing whether our certificate of compignts is valid, including a
standard of like good faith and due diligence and multiple factors,
not just that strict liability that one piece of paper
(20:19):
is missing, therefore there's no chance you did what you
were supposed to do.
Speaker 1 (20:23):
Yeah, pretty sure. Some people at some point may have
taken advantage of that. Obviously, now somebody, like in this case,
I know they are worth a trial, and usually at
some point the defense will always have a motion council
(20:44):
be to the bird and whatnot. Wouldn't they fall into
something like that, Like there's a necessary step to make
sure the sense attorney covers all their bases.
Speaker 2 (20:59):
If that's me, and I would for me, I think
there's always an obligation to be a zealous advocate for
your client.
Speaker 5 (21:07):
I do not doubt that. I know that is a
duty that people take very seriously.
Speaker 2 (21:14):
I also will have a fundamental problem where I see
motions that are coming in that everyone's had the same
discovery for the same amount of time, and everyone's missed
this one body worn camera for a deputy down across
the corner of the street, who wasn't in the CAD
but somehow somebody finally catches it right before trial, and
(21:38):
that should result in a dismissal.
Speaker 5 (21:41):
The fact that there are motions all.
Speaker 2 (21:42):
The time that come in and immediately question a prosecutor
as good faith and due diligence. And I'm not saying
that there aren't some that don't do the job the
way they should.
Speaker 1 (21:52):
But when you show up about it, why not bring
it up and.
Speaker 5 (21:59):
Let's just do this together. Let's get that. I want
to try the case as it is. I'm never trying
to hide anything.
Speaker 2 (22:05):
That's never been my practice, that will never be any
of my prosecutors practices, but to constantly always show up
and there never be regardless of how small or big
the discovery.
Speaker 5 (22:14):
Violation and the court.
Speaker 2 (22:16):
We've had cases in the fourth apartment, one from Ontario
County saying, you know, the DA showed up and said
they didn't have it, they didn't have it, and that
just wasn't good faith because there was stuff that they
did have.
Speaker 5 (22:28):
Well, there was a case.
Speaker 2 (22:29):
From one of my trials on appeal where the defense
attorney emailed me said, hey, random body worn camera missing,
need it. Immediately got her the camera figured out where
it was got it, sent it to her and they said, okay,
this is a case of a lot of discovery. Once
it was brought to the prosecutor's attention, she remedied it,
and so they found that I still acted in good
(22:50):
faith and with due diligence, even though there was body
worn camera missing, because there was no me repeatedly showing
up to court saying it doesn't exist. It doesn't exist,
like once it comes to my attention, I immediately address
those issues because I.
Speaker 5 (23:02):
Never want to withhold things. It's never an intentional, deliberate thing.
Speaker 2 (23:06):
So it just it gets to be a difficult practice
where it feels like as prosecutors, and I'm sure Jim
has it when he's reviewing discovery, you feel like you're
chasing your tail because we aren't even talking about facts
and cases anymore. We're talking about a note card.
Speaker 1 (23:21):
What do you think, Jim, because you have a oh,
like somebody working for a specific offers you likely you
get a bird view or some but you actually practice
and all of those I don't even know what the
hell I'm interpreting half the time because I don't understand laws.
(23:41):
Do you come? Do you see that a lot what
do you what do you take of it?
Speaker 4 (23:45):
Well, I mean I could say that, I mean we've
done a lot of emotions throughout the state on this
and whenever, whenever it's come up, it's it's never like
one piece of paper or a note card that's that's
resulted in a dismissal. I can tell you that that
that's not the case. It's been a usually a very
significant issue. You know, We've had a couple of cases
where we pointed out we're missing stuff and like Christine
(24:06):
said that, you know, the prosecutor would say, you know,
that doesn't exist, doesn't exist, and all of a sudden,
up there it is. So those situations have come up.
But in the other cases that we've had dismissed, it's
it's always been something like substantial. There's always been a
lot of discovery that wasn't provided that clearly should have
been should have been found. It wasn't something that was overlooked.
It was definitely within the course of the case itself.
(24:29):
And I can say, like, you know, the counties that
we deal with, a lot of counties really have this
thing like locked down, like they just just knock it down.
Like we've we've had cases in Erie County and when
when the discovery, like when you put the notice of
the pearance in, they are immediately send you stuff like
here's here's everything, and they just really have their system
down solid where whatever it is you need, you've got
(24:52):
and then there's really no chances for any of this
dismissive stuff.
Speaker 1 (24:56):
I need to take New York City and here I
thought it'd be more like our area, you guys, and
I am a witness on many different places, although the
unit side courses and is very not unified weekend and
they have silly rules for everybody to follow the thing.
(25:21):
I guess, I guess I'm I'm a little confuseder to
why don't we make it? Well, No, in mind that question,
I was completely wrong. Sorry, So how do you see
it happening for you now? How do you see it
going forward? Like I gad about it changes enough.
Speaker 3 (25:40):
Well, I'm not really excited about it.
Speaker 4 (25:42):
No, I kind of liked what we had obviously, I mean,
I think it was it was obviously very beneficial for
the defense what we had. But you know, in terms
of I guess trying to get to the right outcome,
I think it's it's maybe a step in the right direction.
I don't think it's something where you know, again, if
we were missing stuff, we would so certainly reach out
and say, hey, look we're missing something.
Speaker 3 (26:01):
You might take a look at this. We didn't immediately
start dropping emotions.
Speaker 1 (26:05):
Yeah, like they kind of lawyers where they will go
ahead and say, you know what, I got a murder
on my hand that I know is so because I
see all the video. There's no way of anything, and
they're gonna use that. We forgot to put the logo
on this, all the page to put up, you know,
the cover page on the document, and now that's gonna
(26:27):
get everything just lives compared to let all do our
best and do you know with all that little quickly,
I'm not talking that you're doing your life because obviously
I know you don't. You're not that kind of way
of most lawyers. I'm not that kind of lawyer, just
like most in the Seals are there because they're passionate
(26:49):
about justice, whether it's punishment, whether it's release, whether it's something.
Most of us are in it because we love the
system and we will gonna make it see it through.
And I know you to that kind of people as well,
but I do see though, how if you're telling me,
(27:11):
you know what, I have five trials. They are on
extremely high volume, where we only did one every two years,
and then all of a sudden, I'm delayed for a month.
I need another month to give you all the documents.
I can't see why that was just fair. But I
can also see your point. Enough now you're taking my chances,
(27:32):
you know, if you're not ready drop it. The coming
from a country life venis, I see that. Uh, that's
not that a month or two though, And that's just
my opinion because and when I feel like you get
(27:54):
picked up and two years later you have your first
quarter play to read your sometimes you don't even have it.
You just get released again and out you go. So
from my point of view, for example, it is completely
not perfect. But I see that upgrade up there in
(28:15):
a good direction though, because it allows for the real
feminals to be persecuted. It put fix the work on you, right,
because now you know, not you, but you have to
put the work on the defenders, I should say on
the defenders, because they're taking away that extra You really
(28:36):
only have this much time kind of I can set
off for it where they say you only got six
months or something to charge somebody, and then two years
later and it's like, well, but I still don't have
our n actual cards. Well because the time tick's getting,
you know, postpone and not counting then whether and whatnot,
I don't know. I'm on the fence, I gotta say,
(28:57):
because it does sound fair, and it doesn't sound like
you're also not getting all the stuff like before. Like
here you go a week before trial. How the hell
do I get ready a week before trial with a
terabide of data and stuff to get through. I remember
those days of TVs and it was doing crazy, and
(29:18):
I remember now you guys are going crazy as well
because I don't have enough time on the day to
get all of this done, and I don't have enough
lawyers to hire it or the budgets them to get
it done as well. So I don't think my conversation
is making either of you happy, but I do think
that you both are getting that good end of it, guys,
(29:40):
because he's going towards Ellens. It's not perfecsion, it's going
towards a balance, and that was the only goal.
Speaker 2 (29:47):
I mean, the DA's association when the governor approached us
asking for support and guarding these reforms. There was never
any proposal by our association saying go back to twenty nineteen,
go back to twenty twenty, because we all readily admit
that this is the way the system should be working.
(30:08):
We should be turning everything over, we should be having full,
fair disclosure of all of the evidence. Like that's where
we are now, and that's probably where we should have
always been. That's always been the way I practice. So
it was unknownst to me that there were people that
didn't do it that way. Oh right, So that was
very foreign. So what all we were trying to do
(30:31):
was remove some gamesmanship from it, make it so there
was at least some bonus on defense to communicate with
us fully, put them on a timeline as well. So
we got thirty five days after we filed our certificate
to challenge it. Because the same way we're on the
clock to try and review all of this discovery to
(30:51):
make sure nothing is missing and get it to you,
you should have the same responsibility back to us and
letting us know that you're going to challenge because something
is missing, and you don't get to wait until the
six months is up and then go all right, you
didn't get us that thing, and now we're going to
challenge it, and now it should be dismissed like that.
Speaker 3 (31:10):
Was really our goal.
Speaker 1 (31:12):
Do they get some consideration, like they gotta be some
good place mistake sometimes and that because thirty five days
don't seem that much if it's a huge because we're
not worrying about little cases. We're not talking about the
little cases over here. Those are you know, we're talking
the big stuff. That would be weeks of reviewing papers.
(31:35):
Sometimes there are thousands of your pages alone, they're not
even digital.
Speaker 2 (31:40):
There are extensions available, Yes, the court can give if
there's good cause for a delayed application.
Speaker 5 (31:49):
To challenge it.
Speaker 2 (31:51):
They allow those extensions for them for the same reason
that we should have some flexible time too. If there's
a homicide that happens, that is hours of body worn
camera easily, and how many agencies respond, how many officers
within the agency, and you can see how quickly six
hours for one deputy turns into one hundred hours for
(32:13):
the Wayne County Sheriffs. And that's not even the troopers
that helped out or respond or Pelmira who held a
perimeter or anything like that. So again I think all
of it should be looked at in a scope that
is like fair to everyone. And that was the goal
in my advocacy for the change and the reform to
(32:34):
discovery was not to go back, not to get rid
of it, not to say old prosecutors to a standard
to uphold the law and provide what they need to
and to practice fairly. Absolutely do that. I take pride
in the fact that that's my job and what I
do on a daily basis, but also get the gamesmanship
out of it. Let's be adults in this room, have
communication and try and try the case for what it
(32:56):
is and not technicality. But let's look at the facts
and circumstances resolve this as we used to be able
to have those conversations versus post twenty twenty, where now
it is I forget times where we can actually talk
about cases anymore and not discover you don't talk about
the many.
Speaker 1 (33:13):
No's my idea of that, But wouldn't be the same
thing to be say about drinksmanship and like starting somebody's
wife for drinking and driving. One because it's technical and
the other one because you walk it. One because it's
you know, how one is based on a field so
(33:35):
variety test and one is based on the actual chemical test.
Speaker 5 (33:40):
Right, Well, that's technically a violation of two separate laws.
Speaker 2 (33:43):
That's why you do it that way, because, for example,
Jim will make the argument that the test was you know,
it was only one all and the stop was.
Speaker 5 (33:55):
Two hours before.
Speaker 2 (33:57):
So really the jury can look at it and believe
that at the time when he was stopped, because you
processed during at different rates, he could have been stopped
and he could have been a point oh eight or lower.
So the test, you shouldn't even consider the test. And
they might be you know what, Jim, that's a good argument.
Speaker 5 (34:11):
We don't like the test. We'll get rid of the test.
But then they watch them on the body worn camera
and see.
Speaker 2 (34:15):
That they're rumbly, bumbly stumbling through the field sobriety tests
and be like, you know what, he's still even if
we get rid of that test, he still wasn't able
to operate that more vehicle because based on our own observations.
Speaker 5 (34:26):
Of them, he appairs to be intoxic. Well, those are
just different.
Speaker 1 (34:30):
Theories, okay, for the same thing, because I mean we're
seeing cases. For example, I've interpreted in cases where they
say I look drunk at all, but it's a burial
language that is casting something to happen. For example, now
(34:51):
the copy is saying you're drunk, and whether because I
misunderstanding how the stat should be taken or something like that.
You're looking in that legal system until proven guilty. But
you still come out of the other side of the stewards.
Whether you come out or not, you're still muddy because
(35:13):
you have to go accord. You have to fight your stuff,
and you know you're still fighting it. And then we
got two chargets for the same thing. So but again
that's not something then by the day, that's something put
into life, So it would be a from the life.
Speaker 2 (35:35):
Yeah, I mean that's frequent on any crimes, not just DWIS.
For example, we have something that could be a home invasion,
and you end up charging someone for a burglary because
they broke into someone's home and had a weapon. You
charge them with possession of the weapon. That's the same
incident because they have a weapon. If they hurt somebody
when they went in there, you would charge them with
(35:56):
assaults while they were in the home with the weapon.
So most cases end up because you violate different statutes.
There's subsections of the same statute. You can charge robbery
under different theories if there are two people involved, and
then there's also an injury. That's still two counts of
robbery and the second degree. They're just different theories. So
that happens frequently, and our obligation is if it meets
(36:19):
the elements of the crime, we prosecute it.
Speaker 1 (36:22):
That's like people like regularly Joe, we're here, double yeah, sure,
right the law. So I don't know, what do you?
Speaker 2 (36:35):
What do you?
Speaker 1 (36:37):
What are you? What's your culture?
Speaker 4 (36:39):
No, I think it's we've made a lot of progress
from twenty twenty. I think it's it's a it's a
good step. I think for the most part, most of
the prosecutors we deal with are like Christine. They're trying
to do the right thing. It's it's the exception where
you know the prosecutors not doing anything or claiming they've
done some inquiries and it's clear that they haven't.
Speaker 3 (37:00):
So I think I think overall, I think the system
is better than it was. But so I think it
is moving in the right direction for sure.
Speaker 1 (37:09):
YEA, these are what I believe to be generational King
with is. I mean, look at how long it took
just to figure it out a few kings or five years.
Then we got to figure out what King some out
of this, and not even King. This is adjustment. It's
like get taught. We keep adust and adancing and adjustment
until hopefully we get somewhere. Now. I don't know when
(37:34):
will be the day that both sides will be completely
happy with how they work. The law works. But I
don't know, did you guys got asked about it or
was just the DA.
Speaker 2 (37:47):
No?
Speaker 4 (37:47):
I think, I mean, I mean there was like a
surveys that were done that were passing around the defense community,
and I think there's groups that the defense community had
had weighed in on opposing opposing any of the changes
that just the juice recently went through. So collectively, I
think defense attorneys throughout the state appost.
Speaker 1 (38:02):
That do you know what was the main reason that
they will post on.
Speaker 3 (38:07):
Well, I just think that.
Speaker 4 (38:10):
The transparency they were getting the information we're getting I
think was, you know, just it was a lot, but
it was very helpful for us and to making decisions
for our clients if we had if we had everything,
it's just a it's a much easier case to kind
of talk to your client about versus if you're speculating
on which you don't have, or if there's things that
that might be helpful or exculpatory and not knowing or
(38:31):
not knowing you know, back in the old days before
Discovery reform, where you were, you weren't getting anything until
right before you picked the jury.
Speaker 3 (38:39):
You know, it was obviously a big detriment for the defense.
Speaker 1 (38:43):
Although I think like now you still be able to
get everything that you need, if not everything within that
same thirty or six months time frame, you should have
at least a very vast ability of everything to at
least started doing better prepare yourself better than pre twenty twenty.
Speaker 3 (39:04):
Absolutely absolutely with everything that we're getting.
Speaker 4 (39:07):
I mean, it's just it's a much easier case that,
you know, some of the things that our clients would
would have, you know, complaints about you know, pre twenty
twenty were like.
Speaker 3 (39:15):
You know, we didn't know about this, or I didn't
know about that.
Speaker 4 (39:17):
I wouldn't have taken the plea offer I would have,
you know, I would have made a different decision on
certain things if I had known this stuff.
Speaker 3 (39:24):
And obviously, you know, you're you're trying to represent.
Speaker 1 (39:27):
Is not seen in the video, but I didn't.
Speaker 4 (39:28):
Know that, right, right, So if there's the things that
are missing, and look, you know, you know, how can
we advise you? Why why did you tell me to
take the plea? Or why did you advise me to
take the plea? And all of a sudden, the absolutely
was obviously things that we thought that maybe it would
have been good for a jury to try to decide.
Speaker 1 (39:46):
I actually appreciate you both because I think it gives
me a lot of clarity on the sid at least
to me. Maybe I'm understanding it wrong. But again I
also you hear so many, so much noise good and
bad about the governor, and I have no idea about
her because I don't really follow what she does or doesn't.
(40:08):
But at least looking into talking to their different sides
of the aisle to find out, you know, the points
of views of both, and so far I'm gonna say
I don't know many alone, but I do feel that
this is a populive step though, I mean, be able
to just find that out, you still get everything that
you need to do anything, everything that you need to
(40:29):
do to get your job and whatever you want to do.
Then they have somebody breathing down the neck telling them
what's going on. Are you gonna get it ready or
how much longer? And if not, then then there's no
reason for them to say, well, we're just tactics and
you know anything else, because now he removes us from
(40:51):
this one is meting with me, that one is meting
with me. I think it's actually a pretty good balas
because now everybody how to get attent to do the
job right, which is important thing. And then there's accountability.
You gotta you gotta be able to say what have
(41:11):
you been doing with your time? And so thank you
so much for the both of you. Any final fust
you guys want to share, Yeah.
Speaker 4 (41:26):
No, I just like I think it's appreciate you guys
having us on. I think it was a good I
think it's a good topic. I think it's a portant topic.
Speaker 3 (41:33):
Yeah.
Speaker 4 (41:33):
I think like we talked about, it's definitely go in
the right direction. I think having all this information out
there for people to know is very important.
Speaker 1 (41:41):
I would love to have you guys anytime you want
you're able to, because the way I see it, at
least the way I feel it regularly, Joe, we don't
get that training. Well, we're always using professional words, right,
we talk about it got this connected. We don't say
(42:06):
we gotta plug. So when talking about all those little things,
you guys have helped always has helped me to understand
things in a more regular link. Well, I appreciate you
guys joining me today and helping me with that. Maybe
you will be kind enough to also inform me on
(42:28):
other subjects, me and the five guys from the five People.
Speaker 5 (42:34):
Whatever you need, Carlos, I'll be here.
Speaker 1 (42:36):
Well, thank you so much for the both of you.
I I am honored because I honestly I know how
hard you both work, how fellous you are to your clients,
whether you're looking for justice or you want to make
sure that justice gets preserved, right, I don't know. I
(42:58):
don't want to tell them to say anyway, thank you
so much for both. I hope you have a great
rest of your evening, and I hope everybody else listening
or watching the show if you have any questions and
your comments on kdkop at gmail dot com or follow
us on Facebook, have a great day everyone, God.
Speaker 3 (43:27):
Thank you for listening to today's episode.
Speaker 4 (43:30):
Don't forget to follow this podcast, so if you don't
miss any new episodes, you can also search for p
K d K on your favorite podcast player for all
the other shows that we have
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