Bail and Discovery laws stir controversy

By Mark Reynolds
Posted 3/11/20

On January 1st a whole set of new laws went into effect governing bail reform and on providing Discovery materials on a timely basis. In the first of a series, the Southern Ulster Times spoke to a …

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Bail and Discovery laws stir controversy

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On January 1st a whole set of new laws went into effect governing bail reform and on providing Discovery materials on a timely basis. In the first of a series, the Southern Ulster Times spoke to a number of individuals in the field to get their take on the seismic changes that took place at the turn of the year. Here is the take away from the Police Chiefs of Lloyd and Marlborough.

Lloyd Police Chief James Janso said in most cases the identity of a witness can be protected but it will be seen how this plays out in the coming months under the new Discovery law.

“That’s definitely a work in progress and it’s definitely a hindrance towards law enforcement and the public, where the public might not want to come forward because the information will now be readily available to the attorneys and everybody else,” he said.

Janso said all of this is untested under the new system but his department will work under the new stipulations, “until something changes or we’re strapped with it for good.”

Janso said the Bail Reform laws revamped the conditions on the release of an individual who has been arrested. He said under the old system the Police Department had the discretion to release an individual on their own recognizance [ROR] on an appearance ticket, they could hold an amount of money on station bail or they could arraign an individual before a judge, who could release the individual or require cash bail.

“Since January 1st everyone we’ve arrested has been released on appearance tickets, whether it be for felony DWI, assaults, criminal mischief, or domestics; they’re all being released because the new bail law doesn’t allow them to be arraigned...This kind of handcuffs the court and the police where now everyone that’s getting arrested is released and they’re out there now in the public.”

Janso said previously the amount of bail set was in accordance to the severity of the charge and upon the individual’s ties to the community. Those charged with serious crimes, like murder, are held but he is seeing a pattern locally and across the state where those who were released on lesser charges are often arrested again in the near future.

Janso said more time is needed to completely gather case materials to comply with Discovery.

“You may still have witnesses, you still may have lab results coming in, so [new law] is definitely a hindrance. Just because an arrest has been made you still have to tighten up your case and get the rest of the reports. Now you have to get it done in 15 days from arraignment or it’s grounds for dismissal.” He pointed out that dismissal can happen even if a single video or document that his department was not aware of was not located in the stated time frame.

Janso also noted that the new bail reform requirements will financially strap police departments because of the additional paperwork, video collection and extra hours that are needed to meet the letter of the law. In addition, he expects the number of arrests in his department will drop because his officers are compiling paperwork and are not out on the street protecting the public.

On the Discovery Law changes, Janso said the actual piece of paper containing the charge of a crime or offense has to be in the court’s hands within 24 hours. If a court is closed on the weekends, however, his department emails the information to the court so it is time stamped and in their system within the 24 hour statute, “and the next business day we’ll give a hard copy to them.” Janso pointed out that previously an arrest by an officer took 2 to 3 hours but now it takes up to 7 hours to complete.

Marlborough Police Chief Gerald Cocozza said, “Discovery is inclusive of anything the Police gather; video, phone calls, statements, addresses, backgrounds; everything the District Attorney would use in prosecution. Prior to the rule change all this stuff was provided but on a time-frame usually handled by the DA. It just wasn’t automatically given.”

Cocozza said so far his department has been complying with the deadlines.

“It’s difficult at best. There’s a lot of extra work for the two Sergeants and myself,” he said.

Cocozza said bail reform, “took all abilities of a Judge to remand somebody in jail for most crimes except for a select few; for murder, serious assault with weapons, sexual crimes they can all still set bail and remand them to jail as we always did. Now the new process calls for the least confining method to guarantee their return to court.” He said this boils down to giving no bail at all but just issuance of an Appearance ticket, “on their word they’re going to come back to court.” The court is also required to obtain a phone number and an email from the individual arrested and the court must notify them prior to the date they are due back in court. If the person fails to appear, the court has to send another letter telling the individual that a second court appearance has been scheduled. If there is a second no-show, the judge can issue an arrest warrant. Cocozza intimated that this is a circular method of metering out the law.

“This means we’ll go out and eventually find them, bring them before the court so the judge can give them another court date to show up on their own because there is no bail,” he said.

Cocozza said on a few occasions judges do not show up for arraignment because they cannot set bail. He said even some judges do not want to come in to issue an Order of Protection because there is nothing to be done other than issuing the Order.

Cocozza said lawmakers failed to think of the long term effects when they voted for these reforms.

“They grouped everything together, threw it in the pot and said we’re going to get a couple of things out of it and it was a blanket approval, not realizing that everything was going to go through and not realizing how the consequences of what they did would trickle down through the system,” he said.

Cocozza said a Police department should have a month to compile the Discovery materials. He also feels that on the issue of Bail, “a judge should have the authority to set bail on all crimes based on the judge’s opinion, is the person a flight risk, is this a repeat offender and are they a danger to the victim. I think the judges should be allowed to use their discretion, again not as punishment, but as a protection tool or as a guarantee to come back to court.” He fears that the new bail reform law will create giant warrant squads that go out to locate individuals who fail to show up for their court dates. He pointed out that even if a judge were to set an unfair level of bail for a minor crime, Probation follows up shortly and sees if there is cause for the court to reduce the bail amount.

“That’s the way the process always worked,” he said.

Cocozza is hoping modifications to these laws will be made in the Assembly, the Senate and by the Governor, including, this time around, input from law enforcement, judges and district attorneys.

Cocozza said a fix should not be political.

“Depending on the political party you talk to, the Democrats seem to think this is the greatest thing in the world because I think it was put forth by the Democrats, and the Republicans think it’s horrible [but] I don’t care what political party, I’m just looking at the consequences it causes the Marlborough Police Department on a day to day operation basis,” he said.

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