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.

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