New York’s “Blindfold Law” is the Devil’s Bargain and Should be Repealed Now

Constitutional rights that actually see the light of the day less than 2% of the time, those are no rights at all.

Imagine feeling required to make a deal with somebody where you must offer them a portion of your lifetime in exchange for something they are holding secret in their hands behind their backs, and even when you agree to the deal, you never get to see what it was that they were holding!

For over 98% of felony criminal defendants in New York State and nearly as many misdemeanor defendants, this is the kind of deal they faced when accepting a so-called “plea bargain” offered by the District Attorney’s Office.

This egregious portion of the NY State discovery laws is just another aspect of the criminal defense system that unfairly benefits prosecutors and undermines the rights of criminal defendants under the 5th, 6th, and 14th Amendments of the US Constitution. After all, what kind of Due Process rights, rights to a fair and full trial on the merits, rights to a criminal defense attorney, and rights to confront the evidence and witnesses against you is a criminal defendant truly offered when she cannot even see the evidence against her as guarded in the files of the office of the DA until a jury is seated in the criminal case at the brink of a trial’s commencement — a phase in the criminal litigation process that happens near the very end of the timeline, a phase that nearly all criminal defendants never even experience because they simply cannot afford at all (or for long) a criminal defense attorney and therefore feel compelled by ever-worsening prosecutorial threats to accept the offer on the table, even when they’re innocent? Constitutional rights that actually see the light of the day less than 2% of the time, those are no rights at all.

Of course this is outrageous, and some non-profit activists, a few criminal defense attorneys, a handful of politicians, and some in the news media have been fighting against this statutory framework for some time. By inserting these unjust discovery laws into the criminal procedure statutes of New York, legislators of a bygone era argued that withholding the names of witnesses and related evidence from the defendant until the start of trial was necessary to protect such witnesses from acts of revenge and intimidation in a state where organized crime profited for decades.

This “blindfold law” as it became known was overkill, creating a system that is fundamentally unfair to the hoards of criminal defendants in the NY State criminal justice system that have nothing to do with organized crime nor any intention or wherewithal to seek vengeance against opposing witnesses. It is these people of the state that have borne the brunt of the injury, but nobody really cares about criminal defendants anyway. They’re not the primary concern of our citizens … until people find themselves trapped in this very system be it for some misdemeanor or felony allegation from which they seek to extricate themselves.

“First they came for the socialists, and I did not speak out — because I was not a socialist.

Then they came for the trade unionists, and I did not speak out — because I was not a trade unionist.

Then they came for the Jews, and I did not speak out — because I was not a Jew.

Then they came for me — and there was no one left to speak for me.”

- Martin Niemöller (1892–1984), German anti-Hitler WW II activist, concentration camp survivor.

It is then, when they themselves are caught in the system, that people wish that criminal defense attorneys were made more affordable either by public funding or truly valuable legal insurance coverage (rather than the paper “shields” offered by some insurance companies that are about as helpful as a tissue in a hurricane). And it is then when they face the same devil’s bargain that the “blindfold law” puts forward.

Fortunately, the activists’ efforts, and the progressive political moment of 2019 where issues like criminal justice reform are at the forefront of mainstream platforms, have finally captured the attention and support of the Governor. Though the offices of Prosecutors around the state, along with other so-called “Law and Order” backers, are aggressively fighting against this rising progressive reform movement to repeal the “blindfold” law, I am optimistic that with the Governor’s backing we may see some change soon this coming year, especially in the shadow of the 2020 election year.

We must offer our clients who are facing the deprivation of their freedoms and very lives not some limp guiding hand through the devil’s bargain of plea deal negotiations but rather an earnest and intense defense focused on investigating the allegations and evidence and utilizing the facts and the law to ensure that justice, not mere rote work, is accomplished.

In the meantime, it remains up to aggressive criminal defense attorneys such as myself to continue to push for the Constitutional rights of our clients against stonewalling efforts of prosecutors who diabolically seek to delay the revealing of exculpatory and other crucial evidence, and more so, to offer our clients who are facing the deprivation of their freedoms and very lives not some limp guiding hand through the devil’s bargain of plea deal negotiations but rather an earnest and intense defense focused on investigating the allegations and evidence and utilizing the facts and the law to ensure that justice, not mere rote work, is accomplished.

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