Assemblyman Andrew Molitor, R-Westfield, debates discovery reforms during last week’s marathon legislative budget debate.

Discovery reform was one of the key sticking points of this year’s late state budget.

Assemblyman Andrew Molitor, R-Westfield, had some serious concerns about the proposed changes before casting his vote last week on budget bills that changed the state’s requirements for prosecutors to turn evidence over to defense attorneys. The region’s local Assembly member debated the discovery changes with Assemblyman Jeffrey Dinowitz, D-New York City and himself a lawyer, for several minutes during last week’s marathon session to approve the state’s $254 billion budget.

Discover changes essentially boil down to the following:

– now requiring courts to consider the prosecutor’s efforts as a whole and whether any missing material prejudiced the defense, preventing cases from being thrown out over insignificant mistakes;

– narrowing the scope of the items that must be disclosed and cut out the need to seek certain materials that are irrelevant to the charges against the defendant, allowing prosecutors to better focus on gathering the evidence that really matters;

– allowing prosecutors to move the case forward after they have exercised good faith and due diligence to obtain discoverable material and disclosed everything they have actually obtained, even if there are items they are waiting on;

– protecting against manipulation of the speedy trial clock, requiring defense attorneys to bring challenges early in the case and confer with prosecutors to resolve issues and move cases forward quickly; and

– streamlining protections for sensitive witness information, both to protect witnesses and to facilitate a culture of witnesses feeling empowered to come forward.

Molitor, a former prosecutor in the Chautauqua County District Attorney’s office, raised concerns over the lack of a definition of the word diligence in the statute as well as the lack of changes to some requirements from defense attorneys.

“But Bay (a State Court of Appeals case) also says I also says the Court of Appeals says there’s no such thing as a perfect prosecutor,” Molitor said. “There’s no such thing as a perfect person, we know that, and my fear is that this this bill that were anticipating voting on today is going to impose strict liability on the prosecutor,” Molitor said, with strict liability in the eyes of the courts resulting in few changes for prosecutors.

Dinowitz agreed with Molitor that the issue of a prosecutor’s diligence will be decided by the courts, but said the Bay case lays out clear language of how a prosecutor can meet the court’s expectation of diligence when it comes to discovery reform.

“Well let me alleviate your fear, because I wouldn’t characterize it the way you did,” Dinowitz said. “The prosecutor has to make every possible effort, but if if there’s something that was missed but they made the effort to comply you know, the court will look at how much discovery, how complicated the case is, if the prosecutor knew that they didn’t get something but then maybe made an effort to do it. There’s a whole bunch of things that the prosecutor can do to make sure that they can submit the certificate of compliance and do it honestly. I don’t think this is overly burdened.”

Molitor said in a statement after voting concluded on budget bills that he appreciated additional CHIPS funding for road maintenance statewide and changes to discovery laws that Molitor said may bring balance to the criminal justice system. But, the Westfield Republican said he was still displeased with the budget as a whole.

“But the good cannot outweigh the bad,” Molitor said. “This budget is loaded with unsustainable spending and misguided priorities. Albany continues to pour billions into top-down programs that do little for Western New York–like the $3 billion in taxpayer dollars for the grossly mismanaged New York City transit system. Meanwhile, costly mandates tied to the state’s Climate Leadership and Community Protection Act – the state’s lofty and unrealistic green agenda – will hit families, farmers and small businesses hard, especially in upstate regions already struggling with affordability. This budget was crafted for headlines, not for hard-working people. That’s why I voted no. I’ll continue pushing for a budget process that’s transparent, fiscally responsible and focused on delivering real results for Western New York.”