DA Clegg reflects on bail and discovery reforms

By Mark Reynolds
Posted 3/18/20

Ulster County District Attorney David Clegg spoke with the Southern Ulster Times on the recently enacted New York State Bail and Discovery Laws.

“Both reforms were attempting to do the right …

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DA Clegg reflects on bail and discovery reforms

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Ulster County District Attorney David Clegg spoke with the Southern Ulster Times on the recently enacted New York State Bail and Discovery Laws.

“Both reforms were attempting to do the right thing and Bail Reform was definitely needed. The question is that they removed the opportunity for any kind of discretion at the time of arraignment,” he said. “There are moments when charges, which are not qualifying charges, are brought but the person that comes before the court presents a real and present danger to somebody in the community if they’re released. That’s where I think we need some kind of element of discretion by the judges.”

Clegg said as District Attorney he would have the initial input as to whether or not an application is made for pre-trial detention.

“I like the concept of getting rid of bail so it’s not a question of how much money you have but a question of pre-trial detention,” he said.

By way of example, Clegg said under the new law an individual involved in abusing his wife/girlfriend and who has threatened to return to kill her has been issued an appearance ticket to return to court instead of being remanded to jail. He noted, however, that individuals who have committed serious crimes are held.

Clegg elaborated further.

“If they’re going to be held and if there is a question of dangerousness, there should be a hearing, represented by counsel, where there has to be proof to a clear and convincing evidence level that that person actually presents a danger,” he said. “It [hearing] should be within a short period of time, a three day period, that allows for protecting the victim who may be subject to harm if something isn’t done. It also protects the defendant [who] might lose a few days, but if in fact there is a cool down period and they’re ready to be responsible human beings again and can show they are not a danger to anybody and be let go.” Clegg said at the moment this is not happening, adding that this is one proposed “tweak” to correct this issue that is presently under consideration.

Clegg said there should be, “an element of discretion, which is protected by due process, and made sure there is a standard that has to be met, proof and evidence that has to be made, to hold anybody for any period of time pre-trial. I think that would be the safest way.”

Clegg said reform of the Discovery process was also needed.

“There was trial by ambush, they used to say, [when] a defense attorney doesn’t get all of the evidence until a few days before trial,” he said. “How do you adequately inform your client what he should do or how do you properly prepare for a trial when you don’t have all the evidence that is going to be brought to trial?”

Clegg said now in every case Discovery materials must be turned over to the defense within 15 days. He said this singular change, “just added about 30% to the workload of every District Attorney’s Office and every Law Enforcement office.”

Clegg has spoken with a number of NYS Senators and with NYS Assembly speaker Carl Heastie about allowing just relevant materials to be submitted to meet the Discovery requirements, such as providing several police body camera tapes, instead of seven or eight when a variety of officers from different branches of law enforcement show up for the same incident. Having to provide every tape requires many hours of work by officers and ADA personnel.

“Even if it doesn’t make any difference at all in terms of evidence to prove guilt, it still has to be sent,” he said.

Clegg pointed out that if his office misses submitting one item, a defense attorney may argue that the case should be dismissed.

“It puts the prosecution and law enforcement under strict scrutiny on a lot of issues that didn’t have to be there,” he said.

Despite these issues Clegg insists that reform was necessary but believes some parts can be fixed in Albany. He and a number of progressive District Attorney’s have brought their concerns to Speaker Heastie.

“We’re not trying to fear monger, we’re not trying to do anything but make the system work as well as it can. I think that there is a need for change, I think they heard us but I think the amount of resources that we have to do this are totally inadequate...you’ve got people in my office working six and seven days a week to try and keep all the cases going,” he said.

Clegg suggests establishing an “open file” so that any information coming into his office would automatically be shared with the Public Defender’s office. In addition, he would push for a 60 day time frame to meet the Discovery requirements.

“It wouldn’t in any way harm the defendant at all. It would give the DA’s office enough time and it would give law enforcement enough time,” he said.

Clegg pointed out that a lot of the cases are straightforward, “where the evidence is clear, where both sides know there has to be a disposition and you could dispose of those cases without doing all this additional work that is unnecessary.”

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