The NYC arraignment scandal: part 2

A friend wrote yesterday in The Daily News:

“I am a lawyer on the front lines of the COVID-19 epidemic. I defend people in NYC who cannot afford an attorney in their criminal cases. While I am used to feeling dispensable and dismissed, it has never felt more callous than during this epidemic.

“First, a little primer on arraignments and courtrooms. Typically, the courtroom has a judge, two to three police officers guarding recent arrestees, three to four court officers who are responsible for the security of the courtroom, at least six to eight defense attorneys, two to three attorneys from the District Attorney’s Office and at least three clerks. After the interview and any other necessary work, the client is brought before a judge, who makes a decision about release or bail.

Defendant being arraigned. Source: NY Office of Court Administration (OCA) website 3/21/2020

NYC judge conducting arraignments on 3/20/2020. Source: OCA website

“So on a typical, non-pandemic day, there are at least 22 people inside a courtroom. That does not include the public who have a constitutional right to be present.

Social distancing in a NYC arraignment part on 3/20/2020

“Absolutely everyone else is still present in the courtroom: the police officers, the court officers, the district attorneys and their clerk, the court clerks and, of course, the judge. The court system has not revised its procedures to limit the number of police, court officers and court clerks appearing in a courtroom.

“To accommodate this new video procedure, courts have moved courtrooms from very spacious ones to much smaller ones. No one can determine why they chose smaller courtrooms. Furthermore, to accommodate the video, the judge, defense attorney and district attorney must appear on the video, so they are all within two to three feet of each other when we should be practicing social distancing.

“In these days of Zoom, Google Hangouts, etc, it is possible to create a virtual arraignment part. None of the attorneys need to be there. Papers can be e-mailed. Court staff could be cut back. Police officers could be kept safer. The court system is stuck in the 19th century. It must be dragged into the 21st.”

But while schools were closed and all public gatherings suspended, the NY court administration wanted to wait until over 50,000 people were infected even to think about closing the courts and eliminating in-person proceedings. Here’s what they sent out three days ago to the Brooklyn court-appointed attorneys:

GENERAL INFORMATION ABOUT THE SPREAD OF COVID-19 and the court’s response
 
FOUR PHASES :
Phase 1. Community Spread
 Phase 2. 25-100 certified cases citywide
Phase 3. 1,000 cases
Phase 4. 50,000 cases or more
We are in Phase 3.5
WHAT DOES EACH PHASE LOOK LIKE FOR COURT?
Phase 2
Jury Trials have been suspended
Existing Jury Trials can move forward- with sworn jurors
No new Jurors should be sworn in
No new GJ shall be impaneled
Phase 3-now
All community court cases will be cleared out of community court and transferred to criminal court
Arraignments will be done in person for healthy individuals
Arraignments will done by video conference for people who are infected, visibly symptomatic, self-identified as having the virus. Those people will be taken to Redhook Community Court where a line will be set up so there can be confidential and privileged video interviews by defense counsel prior to an arraignment with the Judges, and the prosecutor present.  Just to clarify the defendant who is either symptomatic or self diagnosed with COVID-19 will not appear in the court room, but video conferenced in from Redhook Community Court.
 DATS and C- Summons- adjourned for 120 days
PHASE 4
City COURT Operations:
Court house doors are closed to the public
Only the Constitutional core functions are maintained
Everyone except for court staff will be using Skype for business
**************
Today, three days later, there are 10,000 cases in NY and live arraignments are still going on. And some zealots are still objecting that videoconferencing is unconstitutional. Apparently not grasping that they’re just as likely to infect their clients as vice versa.

Nothing like the Corona virus for egalitarianism and inclusivity.

This just in: Baltimore’s mayor urges residents to stop shooting each other because hospital beds are needed for Corona virus patients.

Posted in Uncategorized | Tagged , | 2 Comments

NYC courtrooms: the arraignment scandal

One of the upsides of getting arrested in NYC is that unlike in some countries where you can moulder in jail for weeks or months before you know why, here you have to be arraigned within 24 hours. You’re given a lawyer, taken in front of a judge who tells you what the charge is, you plead guilty or not guilty and are either released with conditions or, if they decide you’re too dangerous, shipped to Rikers Island.

Even in normal times, arraignment courtrooms are hellholes. The newly-arrested are herded in with bloody faces, torn clothes, weeping, shouting, crashing – the whole gamut of distress. Waiting in the aptly-named “pens” until their cases are called.

And now the Virus.

NYC public defenders, mostly from the Legal Aid Society, are going into arraignments armed with nothing but a box of gloves, shared masks and Clorox wipes to try to get their clients back out into the safety of the streets. Every precaution is being taken to make the courtrooms safe, right? Dream on.

Videoconferencing? Usually not working, and even when it works, requires a long colloquy on the record with lots of people breathing on one another, slowing the process down to a crawl.

Phoning? As one attorney said, “If E.T. could phone home, Legal Aid should be able to phone into arraignments.” Guess that’s why E.T. is science fiction.

Another attorney said, “It’s not like there isn’t a tech solution here. It’s that OCA [Office of Court Administration] is too hidebound and bureaucratic to implement one. Yes there would be glitches but there are glitches now. ”

But the scandal is the foolhardiness of court personnel literally laughing off the most elementary precautions.

From the trenches:

“Court officers/personnel are not taking this seriously at all. Yesterday, as I handed an appearance to a court officer he said, ‘We’ve all got it at this point,’ and then mock coughed. I did not find that funny at all. We’re all putting our lives at risk here and they’re taking it for a joke.”

******

“We are doing our part at LAS but it is very concerning how court personnel are behaving business as usual. On my shift one individual even mocked social distancing and gave a court staff colleague a hug.”

*******

“There is no social distancing in the well area and I have witnessed people with their hands casually resting on their face and mouth area, cheek kisses between police officers, and attorneys from [other public defender organizations] just going in the back to interview clients the old way. I was invited twice by NYPD to do the same. I understand the inherent racism and otherism happening to our clients, but interviewing face-to-face in defiance makes no sense to me. The issue is one of public health and no one should be in close quarters regardless if they are in jail or not.”

******

“Everyone is trying their best, but I did not see ANY court officer practice social distancing all day. They need a top-down directive to avoid huddling together and showing each other stuff on their cell phones when the judge isn’t in the room. Many of them and many judges fall into vulnerable groups. It’s frankly insane.”

******

“I worked arraignments today, again (conflicts, but really busy). Everything remains the same. ZERO social distancing. The elitism, classism, and racism continues unabated. We’re safe as long as our ‘dirty’ clients do not enter the courtroom. Cramped quarters, in a basement courtroom. To the detriment of our health, and of society at large. There was also no social distancing at all in the two emergency parts I made appearances in as well. I have no words to describe my dismay. Simply no words.”

******

“Because when you enter that court room, you pass a  dozen or more people in the audience, maybe more.  Not all looking (or sounding healthy).  But that’s NOTHING compared to the massive ‘team huddle’ one enters when actually doing the arraignment.  Because you’re not at the podium with a healthy dose of social distance from the judge and court crew.  And you’re not just in the well. You’re right in there a couple feet from the reporter and judge. In fact, it is pretty much a bench conference.  Except now two courtrooms worth of staff are also invited to the bench.   You’re there rubbing elbows with a dozen or so court officers, a few clerks, multiple DA’s and their paras etc.  Social distancing is not happening. Not at all.

“And don’t get me wrong.  Everyone is amazing under these brutal circumstances.  Everyone wants to get the job done and get out!  The client is gonna be released.  It’s gonna be a June date. Let’s do this.  Should be 30 seconds right?  Wrong.  Technical difficulties run amuck. Microphones aren’t working.  Clients can’t hear, etc.  Consequently, our cases are second, third and fourth called.  So….we gotta get back into that huddle of 20 plus people multiple times a case.  The new arraignment setup has the best of intentions.  But it just doesn’t jibe with the idea of a person trying to avoid getting Covid-19.”

Wash your hands.

 

Posted in Uncategorized | Tagged | 10 Comments

Squawk under house arrest

Boomer Friend: Don’t worry, the virus kills mostly the elderly.

Squawk: But we’re the elderly!

Boomer Friend: So we are! I forgot.

We feel like we’re back in 9/11 (when we were right next to the Towers).  Calling friends: “I’m alive, are you?” Except. . . now all over the world.

Actually, New Yorkers are pretty happy with social distance. Wouldn’t be surprised if elbow-bumping remained the custom.

But what about all those prisoners, locked up with no soap, no cleaning supplies? For once, Iran had the right idea: the Chief Judge ordered 70,000 prisoners released. Less threat to public safety to have them on the outside than incubating in prison.  The advantage of a totalitarian state where one man can give the order. Imagine Chief Justice Roberts trying to do that. On the other hand, 69,999 of them were probably in for blasphemy.

Not to be outdone, the Mayor has just released a million schoolkids.

Taking advantage of not yet being absolutely prohibited from leaving the house, we schlepped as much work home from the office as we could manage. Wearing a mask on the subway, which they say makes no difference.  At least it makes people keep their social distance. Who’d go near someone looking like this?

Squawk on the subway.

Posted in Law & Parody | Tagged | 3 Comments

Must be true, says so right here in the Probation Report

Who needs satire when we have the news? The world closing down around us, Governor Cuomo proudly shilling a hand sanitizer for being cheaper than Brand X and smelling like tulips (the hand sanitizer, that is). Brought to us by CorCraft, the brand name of prisoner-made products (“Cor” being short for Corrections).  Which explains why it’s such a bargain. We should be proud of our clients for rescuing us in this time of crisis from price-gouging Brand X!

♠  ♠  ♠  ♠  ♠

Looks like we’ll have to read Woody Allen’s autobiography in French, since the boys and girls of Hachette Book Group stormed out of their Rockefeller Center offices to block its publication in the U.S.  They think because there were accusations – shown to be unfounded years ago – of molesting his daughter, he shouldn’t be allowed to publish a book.  No doubt they’d have staged a book burning in the skating rink under Prometheus, but large gatherings are out these days.

So Woody’s “Apropos of Nothing” will be published in France where the #MoiAussi movement isn’t yet in total control of the arts. Alors, perhaps some brave souls will smuggle it past Customs into NY, as they did with Joyce’s Ulysses when it was banned for its “unparlorlike” language. Or maybe we can read it as a clandestinely circulated samizdat like Gulag Archipelago. Or possibly, as in Farenheit 451, Woody’s memoir will survive by being memorized by wandering exiles.

♣ ♣ ♣ ♣

Apropos of #MeToo, the Court of Appeals has finally eliminated all that silly frou-fra about proof and decided that in SORA hearings, accusations alone are clear and convincing evidence. According to the majority, if it’s on a piece of paper from a law enforcement agency, that’s good enough.

That turns SORA hearings into a farce, scolds Progressive Judge Jenny Rivera in a dissent nobody seems to have read to the end of. You need reliable evidence. Like victims’ statements.  Say what? Yes, victims’ statements. Uncorroborated, never cross-examined, never the subject of a conviction. That’s what she calls reliable?

Et tu, Jenny.

Posted in Law & Parody | Tagged , , , , | 1 Comment

Discovery reform in Brooklyn: fuggetabout WitCom

Now that New York has adopted the radical notion that an accused should know something about the accusations before the morning of trial, prosecutors have been scrambling to get around the new discovery laws. One of which is that the defense is entitled to “adequate contact information” for the People’s witnesses.

Taking a tip from the MTA, which invites you to “download the free app” to find out there are no trains for the rest of the night, the DA’s have concocted an app called WitCom, a portal that defense lawyers are “required” to use if they want to talk to prosecution witnesses.

When a defense lawyer objected, a Brooklyn judge said to give it a try. Result? Yes, a witness did call back through WitCom. But only because the prosecutor made her do it. In another instance, the prosecutor called up the witness’s lawyer three times, demanding that the client return the WitCall.

Look how well WitCom works! crowed the People. The witnesses responded!

Yeah, said the judge, as long as the prosecutor leans on them hard enough.  Making the defense use WitCom “is contrary to the plain meaning of the statute which calls for the People to provide contact information. WitCom. . . stands for a lack of information.”  (That’s such a good line, we almost forgive the judge for writing sentences like “when a prosecutor registers their witnesses,” or “a witness may respond when they may otherwise have blocked the call.” He needs to dust off their Strunk & White).

“To argue that the court should accept the WitCom app because millions of people use Uber, Lyft, Grubhub, etc., is ludicrous,” sputtered the judge.  “Those apps are voluntarily downloaded as a first-world convenience for the consumer. They are in no way akin to forcing an adversarial party to litigation to use an app.”

The People were ordered to cough up “an active and verified email address and cell phone number for their witnesses.”

“Are you sure it was my client who had the gun?”

 

 

Posted in Criminal procedure | Tagged | 5 Comments

Happy Lunar New Year 2020: Year of the Rat

The rat is first in the Chinese Zodiac because, according to legend, he was the first to arrive at the Jade Emperor’s party (and probably the last to leave). Despite pervasive negative stereotypes, rats have many admirable qualities.  They’re clever and sociable, not easily discouraged and will persevere through any maze to get to the cheese. An example to us all.

Posted in Uncategorized | 2 Comments

The Sex Offender Bus

Last week the Guv issued a proposal to fix NYC’s crummy public transport by banning Level 3 sex offenders from using it.  This is apparently aimed at guys on crowded subways who can’t keep their hands and other appendages to themselves. Well, it’s an easier solution than making the MTA do something about overcrowding, such as run more trains.

And maybe the Guv’s interdiction will make the trains less crowded, considering that there are  2,000  people in NYC classified as Level 3.  Level 3 means that a judge has determined, though not by any rational method,that they’re likely to commit a sex offense.

Here’s how the gubernatorial solution came about:

Scene: Ad Hoc Meeting of the Governor’s Task Force Bipartisan Action Committee  Behind Closed Doors at Jack’s Oyster Bar.

Assemblyman Tomato: Can you believe, the wife and I just took a trip to the Big Apple and we couldn’t get a subway from Times Square to Yankee Stadium?  Because of “Planned Service Changes,” meaning there were no trains.

Senator Crackerjack: Yes, it’s a multibillion dollar program for not running any trains on nights, weekends and during midday. It’s called Fast Track.*

*We’re not making this up.

Governor’s Aide: The problem is all those sex offenders.  Mothers for Megan’s Law has drafted a bill to solve it by banning them from buses and subways.

Assemblyman Tomato: Fortunately, Senator Crackerjack doesn’t ride the subway.

Senator Crackerjack: Shut up, Vito. I haven’t been indicted yet.

Assemblywoman Pickle: How will they be identified as sex offenders?

Governor’s Aide: They’ll be required to get radioactive tattoos that set off alarms at the turnstile.

Senator Shoe: But they’re required to register every 90 days at the Sex Offender Management Unit on Centre Street, which is way the hell downtown.*  How are they supposed to get there?

We didn’t make that up either.

Assemblyman Tomato: If the Little Woman and I could walk from Times Square to Yankee Stadium, they can can walk to Centre Street from whatever outerboro shelter they’re living at.

Senator Crackerjack: What? And pass by all those schools full of vulnerable populations?

Governor’s Aide: Citibank has offered to supplement its fleets of blue rental bicycles with special sex offender scooters. Painted red, of course.

Senator Crackerjack: Same problem. Think how attractive a red scooter would be to the kiddies. I’ll never forget the one I had as a boy. It was called Rosebud —

Assemblywoman Pickle: But most Level 3’s aren’t offenders against children. Or against strangers either, for that matter.

Assemblyman Tomato: What’s that got to do with anything? Mothers for Megan’s Law says they’re a danger to public safety.

Governor’s Aide: How about giving them jetpacks so they can fly direct to Centre Street without going near any schools?

Assemblyman Tomato: Sounds expensive. What about a balloon?

Senator Crackerjack: I have it! A mobile registration unit! We’ll refurbish some old Mister Softee Trucks and change the tune to “I’ll Be Watching You.” They’ll drive around the neighborhoods and anyone who’s Level 3 has to come out and register.

Governor’s Aide: Brilliant! That way everyone in the neighborhood knows who they are. In case they forgot to look them up on the Internet.

 

Posted in Law & Parody, Satirical cartoons, SORA | Tagged , | 2 Comments