New Jersey's Supreme Court could soon rule in a fight over discovery under New Jersey's new bail system.
TRENTON -- A state lawmaker and critic of New Jersey's bail overhaul says prosecutors should have to release more evidence up-front when asking a judge to lock up people accused of crimes.
Sen. Ronald Rice (D-Essex) weighed in on a fight before New Jersey's Supreme Court on the hearings where judges will decide whether to order defendants locked up while awaiting trial.
New Jersey's criminal justice system saw sweeping changes this year after voters approved a new system that effectively did away with cash bail. Under the new system, judges can order a defendant held without bail if they pose a flight risk or danger to the community.
The changes were meant to allow judges to order violent offenders held until trial while keeping poor, low-level defendants from languishing in jail because they couldn't afford bail.
But because the new system involved changing New Jersey's constitution to allow accused criminals to be ordered held without bail before their conviction, the reforms required judges to hold a pretrial detention hearing to weigh the evidence against a person when prosecutors were requesting they be thrown in jail.
Bail reform sparks Supreme Court fight
The Supreme Court heard arguments last week in a fight over the rules of evidence in such hearings.
Defense attorneys said prosecutors were asking judges to order defendants jailed based on affidavits and preliminary reports without releasing the underlying documents or photo and video evidence. Prosecutors argued that because the detention hearings have to be held on short order, they didn't have time to review the material to make sure none of it could jeopardize the safety of witnesses or was otherwise privileged.
In a statement to NJ Advance Media, Rice sided with defense attorneys.
"The prosecution should not be able to pick and choose which evidence it presents, or to withhold evidence from the defendant or the court, when seeking to keep someone behind bars with no opportunity for release before trial," Rice said. "This 'half-loaf' approach is unacceptable."
Rice, who heads the state Legislative Black Caucus, was a skeptic of the bail overhaul because of concerns about the speedy trial provision, which gives those ordered jailed the right to a prompt trial.
"Clearly, there are mixed reviews on how bail reform is working, but this issue goes to the fundamental rights of the accused," he said. "Defendants, their attorneys and judges deserve to have full disclosure of the evidence available in circumstances where prosecutors are recommending holding someone without bail, who has been arrested and charged, but not found guilty of a crime."
The case marks the first time New Jersey's highest court has had to weigh in on a dispute over the ground rules of the state's new criminal justice system.
Under the old system, defendants often didn't receive any discovery until after they were indicted, often months after their arrest.
During oral argument last week, Elie Honig, the director of the state Division of Criminal Justice, said prosecutors weren't simply playing a game of "keepaway" with discovery.
Honig said in most cases, prosecutors were refusing to release discovery to protect witnesses from intimidation and retaliation, or because prosecutors did not have enough time to review reams of paper or hours of video footage to make sure they weren't disclosing other privileged information.
If forced to give up discovery at detention hearings, he argued, prosecutors could be handing over their case files before they had a chance to learn the contours of the case themselves.
Rice called the matter "a vitally important case" and said he hopes "the court does the right thing and rules in favor of all evidence being made available to a defendant if, in fact, the prosecutor is requesting that someone be detained without bail."
The court is expected to issue a ruling on the matter in the coming weeks.
S.P. Sullivan may be reached at ssullivan@njadvancemedia.com. Follow him on Twitter. Find NJ.com on Facebook.