MAYVILLE – Chautauqua County’s chief prosecutor said he believes that witnesses, victims, and others will be negatively affected by a series of proposals that are being discussed in Albany.
During a one-on-one sit-down interview Friday with WNYNewsNow, District Attorney Patrick Swanson explained that the New York State District Attorney Association’s Board of Directors, of which he is a member, met recently during an Association’s conference in New York City to discuss the concerns. The Board formed several emergency committees to draft proposed changes to the proposals.
“It (the proposal to eliminate cash bail) changes everything, and it changes it in a way that isn’t particularly good for witnesses, that isn’t particularly good for victims, and quite frankly, isn’t particularly good for law-abiding citizens who just want to make sure there aren’t criminals running around on the streets,” Swanson said.
“There was not a big feeling of optimism coming from the talks we had as an assembled group.”
Swanson said that, in most cases, defendants will receive appearance tickets rather than await trial in county jail. The DA added that there are “issues” with how bail would be set for cases such as homicides or other limited violent felonies based on the new proposals.
“The legislation being proposed upends our criminal justice system, as we know it,” Swanson said. “It changes bail to, virtually, make all offenses just appearance tickets. People will not be sent to county jail, pre-trial, they won’t be arraigned and having to post bail. The cash bail system, as we know it, will be gone with the presumption of release on all but the most serious cases.”
Swanson also detailed how the discovery process could be accelerated down to 15 days from a process that he says often takes months. The discovery process period is the formal process of exchanging information between the parties about the witnesses and evidence to be presented at trial. The purpose of discovery is to make the parties aware of the evidence that may be presented at trial.
“For the majority of offices in this state with staffs that are too small and caseloads that are too high, makes it almost impossible to accomplish what’s going to be required,” Swanson said. “Not to mention, the exposure of witnesses and victims to the defendants and the attackers of these victims at very early stages of the proceedings, which the concern is will discourage people from not only reporting that a crime was committed on them, but also witnesses coming forward and providing information of crimes that that they saw.”
“I think the discovery proposal, at it’s written, will have a chilling affect on our ability to prosecute cases in this state. We will see less victims coming forward, we will see less witnesses reaching out.”
Chautauqua County’s top attorney said that the current process is “designed to protect those victims and witnesses.”
“The proposals that are being made in Albany completely ignore our victims, which is disappointing,” Swanson explained. “I don’t think there’s anybody that will say that the defendants don’t deserve protection under our Constitution. We have those documents in placed to be followed, but we have an obligation to the people who are suffering as victims of crimes.”
“We owe it to the people that are witnesses to provide an environment where they can come forward and offer information up against people who have committed crimes, and not feel frightened for their safety.”
Swanson provided a “nightmare scenario” that could arise if the proposals involving bail and discovery are passed.
“Someone is charged with an attempted rape. Assume that a young woman is attacked in a common area outside of her apartment,” Swanson said. “Under the new statute, given that it’s an attempt, it’s not likely one of the matters that will require bail. They’re going to be released. In addition, that person is going to be entitled to discovery in 15 days.”
“Another provision of the discovery law is that the defendant can petition to have access to the area that the crime occurred. The very same defendant, who’s not in jail, he’s out free, 15 days later gets the information, knows the name, knows where she lives, knows her telephone. He can, then, petition to get into her apartment building and into the common area where he tried to commit the crime.”
Swanson said, because of the access, fewer people will cooperate with authorities. When asked how Swanson would address people’s concerns, he said he’d have an easier time protecting victims and witnesses before trial if the law remains the same.
“We hear those concerns, today,” Swanson said. “There are ways in which we can ensure their words, their personal information isn’t known publicly until late stages in the criminal proceeding, most likely during the trial, which protects that person. Protects what they said, protects who they are, protects them from intimidation.”
“If this discovery proposal, as it written, passes, absent some protective order, we won’t be able to tell that to people. In fact, we’ll have to tell them this information could be within the hands of the defendant within 15 days. That’s bad, that’s very bad. It’s going to scare people away.”
Swanson said that another requirement of discovery being proposed involves the requirement of the discovery’s completion before a plea can be taken. For example, a case involving driving while having a suspended license could take a month, according to Swanson, compared to a single-day that those cases often take currently.
Swanson detailed how numerous questions remain unanswered. In addition, he said that extra litigation would be required just to keep victims and witnesses safe.
“You’re adding litigation on bail and protective orders just to keep your witnesses and victims safe,” Swanson stressed. “We have to file a motion. That makes no sense, to me. It completely ignores victims and witnesses.”
“The fact I have to fight just to keep my witnesses and victims safe is discouraging, in and of itself, not to mention all of the other problems with the discovery statute.”
According to Swanson, “responsible change is incremental,” and involves input from multiple parties.
“You’re changing everything. I don’t think that’s responsible change,” Swanson said. “I think responsible change is incremental. I think responsible change is bringing all of the parties involved that are going to deal with the new legislation. That would include defense lawyers, who I think is pretty clear have been consulted on this legislation, prosecutors and, perhaps, even consulting with the OCA (Office of Court Administration) and judges to ensure this isn’t going to overburden their systems, which it will.”
Swanson said that fewer people will want to become a prosecutor because of the increasing pressure.
“You’re talking about all of the added requirements that will fall on individual prosecutors and this office, the courts, and the scrutiny that is being applied to prosecutors, today,” Swanson said. “Mind you, this is the same State Legislature that has proposed this prosecutorial conduct commission, and now you’re setting up all of these requirements for prosecutors.”
“Who’s going to want to become a prosecutor? Nobody. It’s a concern, and my hope is what is being proposed does not pass.”
Swanson said that he hopes the State Legislature will choose to take the advice of the DA’s Association when the group makes its proposals after previously being ignored.
“When you’re talking about major criminal justice changes, and then you ignore prosecutors and don’t ask for their advice, I think you’re writing a recipe for disaster,” Swanson said. “My hope is that the proposals, as they’re written now, change.”
Swanson explained how he usually leaves seminars and conferences in a “refreshed” state. This time, though, Swanson left with questions and concerns.
“Usually when I go to these conferences, it’s good to be around other DAs, learning about what other people are dealing with around the state, and you typically walk away from these conferences feeling rejuvenated,” Swanson said. “That was not the case with this conference, and it wasn’t that way because of learning of all of the legislation that is being proposed in Albany.”
“The legislation, by all accounts with the Bar Association, of which I’m on the Board of Directors, is a huge concern, to say the least, for prosecutors.”
Swanson encouraged people to call State Senator Cathy Young and State Assemblyman Andy Goodell to voice their concerns on the proposals. Swanson added that the two officials have consulted with him, from time-to-time, and that he believes they’ll oppose the measures.