Judge Keisha Espinal, the supervising judge of Brooklyn’s criminal court, issued a controversial court order on Monday that could push defense attorneys to waive their right to challenge prosecutors’ failure to turn over evidence in the latter stages of a case.

The order launches a pilot initiative that court officials said is intended to cut down on delays spurred by the landmark discovery reforms passed by the New York state legislature in 2019. But defense attorneys argue the judge’s plan undermines lawmakers’ efforts to ensure people facing criminal charges are not kept in the dark about key evidence in their cases.

The 2019 law mandated that prosecutors turn over evidence early on in a case and file what’s known as a certificate of discovery compliance in order to stop New York’s speedy trial clock. (That clock limits the time prosecutors have to declare that they’re ready for trial, typically between two and six months for most criminal charges.)

The law’s goal was to create a tangible penalty for failing to turn over evidence. Depending on the circumstance, if prosecutors were discovered to have withheld information, the time period in which they’d paused the speedy trial clock could be counted against them, potentially resulting in a case dismissal.

Before the legislation was passed, prosecutors could withhold information on witnesses and key pieces of evidence until the eve of a trial, hampering people’s ability to defend themselves and pressuring many into taking plea deals, even when they believed they were innocent.

“While I think there need to be adjustments to the discovery reforms, changing the law is something that is left to the legislature,” said Adam Uris, a New York City defense attorney and former Brooklyn prosecutor. “Right now, a bureaucratic agency is trying to change the law without the authority to do so.”

The legislation’s sponsor, Jamaal Bailey, a state senator representing parts of the Bronx, did not respond to requests for comment on the new policy.

Court administrators and prosecutors have argued that these new protections incentivize defense attorneys to keep quiet when they independently identify evidence they believe prosecutors should have turned over, so that they can then file motions at the last minute asking judges to dismiss their cases.

“Judge Keshia Espinal came up with [the] plan to implement this in an effort to cut down on the crushing motion practice that has been occurring after the district attorney files his Certificate of Compliance,” said Lucian Chalfen, an Office of Court Administration spokesperson. “The result is a pile of motions. The parties are supposed to try and work out discovery differences but, neither alacrity nor flexibility has been a defense bar characteristic,” referring to defense attorneys in general.

Judge Espinal’s pilot program seeks to curb such tactics by forcing prosecutors and defense attorneys to meet after the prosecution has filed its certificate of discovery compliance and formulate a joint letter outlining any disputes over the availability of evidence that may not have been disclosed. Defense attorneys who do not do so will lose out on their chance to object to missing evidence later in the process.

”Failure by the parties to confer and file the aforementioned letter will be deemed by the court as notice that there were no issues raised with the Certificate of Compliance filed and will constitute a waiver of any such issues at a later date,” Judge Espinal’s order states.

Several defense attorneys and public defender organizations said they’re alarmed by the court’s unilateral pronouncement, which quietly went into effect this week.

They argue that Judge Espinal’s plan pushes them to sign on to a letter despite any disagreements they may have with prosecutors. And refusal to sign could nullify their rights to challenge missing evidence that they might only discover months into a case.

“It impermissibly shifts the burden to the defense to request discovery that by law should automatically be provided by the DAs,” said Yung-Mi Lee, Legal Director of Brooklyn Defender Services’ Criminal Defense Practice. “This order says that our clients' rights to discovery are dependent on whatever the prosecution will agree to in a joint letter.”

Defense advocates also note that when prosecutors no longer face the threat of a challenge that could result in a case dismissal or other penalties, like not being allowed to use key witnesses, they’re less likely to be diligent in fulfilling their discovery obligations.

“We’re protecting the prosecution when they don’t turn over material,” said Steve Zeidman, Director of the Criminal Defense Clinic at the CUNY School of Law. “We’re going backwards.”

Prosecutors, on the other hand, told Gothamist/WNYC that they’re supportive of the Judge Espinal’s initiative, and some are hoping it will be implemented across the city.

“This would limit the defense bar’s weaponization of the discovery laws, which they treat mainly as a game of post-facto ‘gotcha’ having little to nothing to do with ensuring that defendants have access to the evidence against them,” said one prosecutor in a borough outside of Brooklyn who spoke on the condition of anonymity because he’s not authorized to publicly discuss policy matters.

“It also puts the focus of discovery litigation on resolving what items the prosecution has to acquire, process, and turn over, rather than mixing that question in with a stew of procedural and speedy trial issues,” he continued.

A high-ranking official in another District Attorney’s Office voiced the same concerns. “Once they discover a piece of missing evidence, they can wait, and then they file a challenge to the certificate on speedy trial grounds,” she said, speaking on the condition of anonymity to talk freely about her disagreements with the defense bar.

Brooklyn’s new initiative may reflect a growing trend within New York’s judiciary to shoot down attempts to penalize prosecutors for missing evidence. In Rochester earlier this year, a county judge rejected a defendant’s motion to have his drug and handgun possession case dismissed on speedy trial grounds despite a prosecutor’s failure to turn over police radio transmissions and a printout of information that appeared on a police vehicle’s computer screens during a traffic stop.

The court found that the man’s motion errantly argued that the prosecution had blown its speedy trial deadline, but held that even if that argument had been correct, the District Attorney’s certificate of discovery compliance “was filed in good faith and is proper,” meaning the prosecution’s earlier claims of being ready for trial were valid.

In response to criticisms from defense advocates about Judge Espinal’s initiative in Brooklyn, Chalfen, the courts spokesperson, argued that New York’s discovery law “already explicitly empowers” courts to push defenders and prosecutors to meet and confer over outstanding discovery issues. This plan, he said, “only requires” that the two sides memorialize the process in a joint letter.

But Judge Espinal’s order does not cite where judges get the authority to impose waivers on future challenges over missing evidence. In a statement, Chalfen pointed to a vague clause in the discovery law that allows a court to order “measures or proceedings designed to carry into effect the goals” of the law.

“This order in no way diminishes or abridges the prosecution’s or the defense’s current statutory or constitutional obligations,” Chalfen said.

Uris, the defense attorney, said the new order puts his side in an unfair position of either having to offend a judge by pushing back against the order or risk having a client later accuse them of not representing them effectively.

“Our job as defense attorneys is to aggressively defend our clients,” he said. “They’re asking us to be less zealous than what is appropriate.”

The Office of Courts Administration said the initiative could be considered for other boroughs if it “proves effective.”

George Joseph is an investigative reporter with WNYC/Gothamist's Public Safety Unit. You can send him tips on Facebook, Twitter @georgejoseph94, Instagram@georgejoseph81, and at gjosephwnyc@protonmail.com. His phone and encrypted Signal app number is 929-486-4865.