LAST WEEK IN COURT

SEPTEMBER 18 - SEPTEMBER 24

Overall trends and questions to consider:

  • By law, the purpose of bail is to ensure an individual returns to court. Judges are not legally permitted to consider dangerousness when setting bail. Yet, prosecutors routinely cite the seriousness of crimes when requesting bail. This is not an isolated practice; it is the accepted norm, which goes unchallenged by both the judge and defense.

  • For watchers, it seems the most significant predictor of bail amount is the seriousness of the crime. The amount bail is set at increases dramatically when the crime is a violent felony, especially in the case of sex crimes. The accused person’s ability to pay bail, the risk of flight, none of these factors seem to play a comparable role.

    • A young black man (age 18-24) accused of 2nd degree murder. Prosecution asks for $150,000 bail, and judge grants $100,000. Prosecutors focused on the seriousness of the charges and prior arrests but didn't specify why defendant was a flight risk.

  • There is a pattern of prosecutors requesting a bail amount and the judge ordering half of the amount requested. Do prosecutors take this into account when setting bail, deliberately requesting an amount substantially higher than what they intend, knowing the judge will ask for 50%?

  • Many "broken windows" charges are still being prosecuted at arraignment: possession of graffiti implements, open containers, marijuana possession. On their own these charges tend to be resolved as Adjournment in Contemplation of Dismissal (ACDs). After a certain period of time, the case will be dismissed if the accused stays out of trouble, but remember that in NY there is a limit of one marijuana ACD per lifetime. These charges are commonly added on in conjunction with more ‘serious’ offenses, almost like an afterthought for the prosecutors, but certainly problematic for the accused. For marijuana charges in particular, the prosecutors barely discuss the charges or cite them in arguments. Why bother filing these charges at all?

  • An accused person was allowed to return to the homeless shelter where he was living despite orders of protection against him from other residents. While watchers were relieved to see the judge rule in his favor, what will happen to this man if subjects of the protective orders call the police? What happens if a different judge is at the next arraignment?

  • A man accused of stealing 5 tubes of toothpaste from a Duane Reade was referred to the newSTART program. If newSTART is an alternative to short jail terms, does that imply that stealing small quantities of toothpaste or soap is worth sending people to jail for?

Some specific cases from last week:

  • Prosecutors requested $75,000 bail in a felony case after consultation with SVU. The defense argued that this was punitive, and reminded the court that the purpose of bail was to ensure the accused shows up to court. Judge Freier still ended up setting bail, but at a lower amount of $3,000 bond / $2,000 cash.

  • A young man (roughly 20 y/o) was accused of felony burglary and 3rd degree trespass. He had no prior record and is the primary caregiver for his mother (who was struggling with drug use). The prosecutor requested $15,000 bail. Although not stated on the record, Judge Chu appeared to take his age and caregiver status into account, releasing him on his own recognizance.

  • A middle aged black man was brought in on outstanding warrant. He had been attending a court-mandated year-long program but dropped out near it's completion to care for his mother with Alzheimers after she became seriously ill. His mother died shortly thereafter. Judge rules he must redo program in it's entirety.


Reflection from a Watcher

I spend more time than the average person in court rooms. I work at a law firm that represents parents with ACS cases in Family Court. We are the public defenders in family court. Through my work, I’ve seen how disempowering the family court process is for those who are involved. On a daily basis, parents with ACS cases beg me to think of them as a good parent. There is little more humiliating for a parent than having their parenting skills called into question, than being told that they have neglected their child. An essential part of my job is giving a voice to parents who have been charged with neglect and abuse.

Many of my clients have concurrent criminal cases and, while my organization does have a criminal defense team, I wanted to learn more about this process and what my clients are facing in criminal court. This is why I signed up to be a court watcher. My first court watching shift was three weeks ago in Brooklyn. During my first shift, I could not hear a single charge read out by the bailiff. For the majority of the morning I was confused and lost during the arraignments. During my second shift the following week, I was struck by something that was more significant in my opinion. The prosecutor was repeatedly putting incorrect information on the record. First, in her bail application, she stated that a accused had 11 felonies. The accused person and his attorney looked confused. A few minutes later, the prosecutor corrected herself: she meant one felony. During another case, the prosecutor stated on the record that the accused had multiple open cases. Once again, the accused and his attorney looked confused. The defense attorney stated that he did not know which cases the prosecutor was referring to and nor did his client. The prosecutor spent some time looking through her files - she revealed that she had accidentally referred to the accused’s mother and she did not know how she had gotten that information. In neither of these cases did the prosecutor issue an apology to the accused.

These instances stuck out to me so much because I spend my days learning the stories of my clients and I know how much it means to them to get to tell their story to a nonjudgmental and empathetic ear. I can only imagine how, having the facts of your story misstated, on such an important stage, can make someone feel. If I were one of the defendants I spoke about I would feel so disempowered, I would feel like nobody cared enough to get the facts of my story correct. I believe that the false statements made by the prosecutor, although retracted eventually, can leave a lasting first impression and color the life of the case. In these moments, I felt the true unjustness of the criminal “justice” system.

I felt proud to be there in my yellow shirt, holding the prosecutor accountable. I look forward to doing more court watching so I can be a small, yet important part, of telling the true and important stories of individuals who are involved in the criminal justice system.

LAST WEEK IN COURT

REFLECTION FROM A WATCHER

Orders of protections are being used punitively. During our shift, we watched a man essentially lose his home, and consequently his chances of receiving the state ID that had been mailed to him and landing one of the jobs he’s been applying for, because the full order of protection requested by the ADA and granted by the judge — despite the man’s Legal Aid attorney arguing that 1. he had no record, 2. he’d never even seen the man he was accused of assaulting (in the third degree) before because 3. they live on different floors of the same shelter and 4. he said he’d been acting in self-defense when the alleged assault took place  — prevents him from returning to his place of residence. The Legal Aid attorney asked for a limited order of protection, but Judge Darkeh granted a full order of protection. What’s going to happen to this man? I guess he’s supposed to feel lucky the ADA consented to his release on his own recognizance. But until his case is heard on October 18, a full 38 days after his arraignment, what is he supposed to do? Where is he supposed to go? (And why do we never give the same weight to the defendant’s response to the allegations against them as we do to those making the allegations? Like how police officers have a lot more leeway to act in self-defense than, say, a person of color living in a men’s shelter?)

If all Watchers aren’t talking to the public defenders, I’d recommend it. We spoke with them at the beginning of our shift, to let them know we were present and to ask them for information we couldn’t get from the court — for example, the names of the two female ADAs. One was Jones — “Cory,” per an NYC citywide payroll document for fiscal year 2016 — the other they didn’t know, and of course if she ever identified herself it was impossible to hear in the courtroom. It’s always impossible to hear everything. But the public defenders, who this evening were all Legal Aid Society lawyers, answered all the questions they could, and some even tried to speak more loudly and clearly. They are the only officials in the courtroom who seem to care one iota about the defendants: how bail and orders of protection might affect their clients; how things like typos, missing information in reports, and even weirdly stapled paperwork needed to be addressed right away — trying to rectify mistakes in their records their clients might not even have been aware of, but which could have serious consequences. They’re also the only ones who acknowledge what a byzantine nightmare the criminal justice system actually is. It makes me wonder how the people charged with enforcing the laws really feel about their work upholding the system.

Every shift makes me sadder and angrier. I feel deep relief when anyone is in the audience (“audience” is a macabre semantic choice) waiting for a defendant. People who’ve been ROR’ed or released on bail sit in the front row, awaiting their paperwork, having to put on their belts and relace their shoes, and I just want them to be able to stop feeling like they’re on display. Everyone who’s flown commercially in the past 17 years has experienced the now-banal loss of dignity going through the screening process — at best, having to remove your shoes, go through a full-body scanner and/or be patted down; at worst, be sexually assaulted and humiliated. Imagine being the only one in the room who has to put themselves back together while other people chat and joke about how “you really have to try to get arrested in weather like last night’s.” Why does our definition of justice require ritual humiliation?

LAST WEEK IN COURT

SEPTEMBER 4 - SEPTEMBER 10

Cases of Note

A prosecutor requested $20K bail in a case in Brooklyn where an elderly black man was charged with petit larceny, assault on a police officer, and resisting arrest after allegedly stealing 34 deodorants from Walgreens. Although the accused has misdemeanors and other felonies on his record, plus four other open cases, the defense noted that their client is on disability, lives with their mother and has doctor’s appointments twice a week. The accused was ROR'd.

A Brooklyn man was charged with driving without a license, possession of burglary tools, and possession of a blank check after a plainclothes officer in an unmarked vehicle pulled him over for failure to signal for a parking spot. ADA requested $2,500 bail, but $1 bail was set at public defender’s request. A court watcher noted Judge Laura Johnson saying: “Sounds like a terrible search to me.”

A black man plead guilty in Manhattan for a petit larceny (shoplifting) charge over toenail cream. DA requested either CASES Newstart program or 10 days jail time. Man sentenced to mandatory program, or potentially have to spend 10 days in jail, for stealing toenail cream.

Prosecutor requested $5,000 bail for black woman who was arrested on charges of possession of firearm and some drug possession charges. The accused, however, says she was babysitting a relative and claims the items in question were not their own and they cannot be held responsible for a gun in the residence. The accused claims when one of their family members had an altercation with the police the officer stated, “now we’re taking you all in,” and arrested everyone in the house as retaliation. The prosecutor brings up accused's past cases/convictions but defense mentions accused's previous felony is being dismissed due to lack of evidence and also their enrollment in PLAN program. The defense requested the accused be ROR'd and the Judge consented to ROR but noted that “all bets are off” if she misses her next court date.

Individual with a private attorney in Brooklyn charged with Menacing in the 2nd Degree. Prosecution requested the accused be ROR'd with an order of protection and the Judge consented to ROR with no order of protection.

LAST WEEK IN COURT

AUGUST 28 - SEPTEMBER 3

Statistics of Injustice

  • Out of all the cases watched this week where court watchers recorded the gender of the accused (41 total), roughly 70% were men and 30% were women.

    • According to one court watcher, over the course of one three-hour shift in court, the Brooklyn judge misgendered three different defendants.

  • Out of the cases where court watcher recorded the race of the accused (34 total), 50% were black, 26% were Latinx, and 17% were White.

  • Out of the cases where the charges were recorded (27 total), 22% were driving infractions, 18% were drug charges, 17% were petit larceny, and 14% were assault charges.

  • Out of the cases where the duration was recorded (30 total), 50% took between two and five minutes, 30% took under two minutes, and 20% took longer than five minutes.

A few cases from last week

  • In Manhattan, a black man in his sixties was charged with petit larceny for stealing 2 face creams and 3 bottles of shampoo from a Duane Reade. ADA Molly Mauck offered a plea and Judge Adams sentenced him to the CASES program and 30 days jail time, though the defense asked for less jail time.

  • In the same courtroom, on the same day, a man and a woman were both charged Grand Larceny for stealing cosmetics from Duane Reade. ADA Mauck argued that because the male defendant was homeless, he had no ties to the community, he requested bail be set at $15,000. The judge instead sentenced him to supervised release through the CASES program.

  • A white man in his sixties was charged with trespassing. ADA Kelly Stankiewicz argued that he was a “chronic offender,” having been arrested 42 times, having been charged with trespassing at the same building three times in a row. The defense asked that he be given time served or supervised release through CASES. The ADA argued that he was not eligible because they could not verify his address, and Judge Adams agreed, refusing to grant time served or supervised release.

    • Said one courtwatcher: “No big crime is being committed, sounds like he’s very annoying to these residents…If these types of minor incidents keep occurring, it’s clear the court’s solutions have been ineffective in getting him to stop/change his behavior. Not sure what the solution is, but clear there hasn’t been one. Is there one?”

  • A black woman in her sixties was charged with possession of contraband for trying to smuggle a phone into a correctional facility. She was already in state custody for a felony and was brought into the courtroom in chains and handcuffs (despite the fact that she used a cane). ADA Mauck requested bail be set at $1,000, but the judge set it at $1 instead.

  • A sixteen-year-old boy was charged with 2nd degree robbery in Manhattan. The defense noted that it was his first brush with the law and denied the allegations, saying “I don’t believe this case will proceed.” ADA Mauck made no offer or recommendation, requesting an order of protection and supervised release for the accused. Judge Adams called the boy’s father to come up to the bench and asked him if he would make sure his son followed an 8PM curfew. The boy was released on his own recognizance but with an 8PM curfew.

  • An ADA in Manhattan moved to dismiss marijuana charges against a Latino man, “in the interest of justice, due to the DA’s new marijuana policy.” However, K2 continues to be prosecuted: a young black man in Manhattan was charged with possession of a controlled substance in the 7th and sentenced. The defense argued that the compound seized was “unidentifiable” and that the DA’s marijuana policy was still relevant to this case and requested that the charges be dismissed. The judge responded, “make your motion on paper,” sentencing the defendant to time served and suspending his license for six months.

LAST WEEK IN COURT

AUGUST 21 - AUGUST 27

A few cases from last week

  • ADA Meghan Dunigan requested $5k bail for a black male defendant charged with assault in the third degree. Defense argued defendant had ties to community and was both working and going to school. Even though the defendant had to pick up his child at 3 pm that day from school (and the child is not co-parented with anyone else), judge still set bail at $2k.

  • ADA Meghan Dunigan requested $5k bail for black male defendant charged with assault in the third degree. Defendant had an open warrant for the same charge. Defense argued defendant was indigent and unable to pay bail. Judge set bail at $2,500.

  • ADA Meghan Dunigan requested $7,500 bail for a black female defendant charged with assault in the second degree. It was the defendant’s first arrest, the defendant had family/friends in the courtroom, and she was eligible for Mental Health Court Advocacy monitoring, judge denied defense’s request for release on her own recognizance and set bail at $2500.

  • Defendant was charged with a misdemeanor for aggravated harassment in the second degree. Defendant tried to speak directly with the judge but was denied. An example of how defendants have their freedom of speech restricted in court and cannot participate in their own defense.

  • Defendant was charged with attempted petit larceny and possession of “burglary tools.” Any tool could be a burglary tool. Even the ADA Meghan Dunigan quoted the defendant’s explanation of his possession of a crow bar, “I use this for work.”

  • ADA Meghan Dunigan requested $750 bail for white male defendant charged with “possession of weapon,” in this case, some type of razor blade or box cutter. This defendant has no criminal record but three failures to appear in court. Defense said that in prior discussions, ADA Dunigan had consented to ROR but switched at the last minute to requesting bail, so the defense had no time to prepare. Judge released the defendant on his own recognizance.

  • An elderly Latino man pled guilty to Petit Larceny and Possession of Stolen Property after allegedly stealing 10 bags of frozen shrimp from Whole Foods. He was sentenced to the CASES program with a 15-day jail alternative.

  • Judge Herbert Moses denied an elderly Latino man an Access Order to retrieve belongings from his own home after the defendant had violated a previous Limited Order of Protection against his roommate. The accused, currently charged with Harassment in the 2nd, was the leaseholder of the apartment and was accused of making threats against his roommate. The defense stated to the judge, “You are basically making my client homeless with no personal property.” The judge repeatedly answered, “He can make alternative arrangements.”

  • A black man was charged with Grand Larceny in the 3rd after allegedly stealing a $4,000 handbag from Saks. The man had been released from a drug program 4 days before the alleged incident, was currently homeless and was awaiting sentencing on another case. The defense stressed that his client could not afford any bail. ADA Meaghan Dunigan requested $60k bail, Judge Herbert Moses granted $30k.

  • ADA Meaghan Dunigan requested $1,000 bail for a man arrested for kicking a radio in a police precinct. He was present at the precinct to help the police identify a suspect. Judge Moses ROR’d.

  • ADA Dunigan requested $50k bail for a Latino man charged with Grand Larceny and Criminal Possession of a Controlled Substance in the 7th. The accused had allegedly snatched a gold chain off of someone’s neck and had been found with a crack pipe in his pocket when arrested. The defense highlighted that her defendant had been stopped and searched by the police without any probable cause. Judge Moses granted $25k bail.  

  • During one three-hour shift in court, out of the cases where court watchers recorded the gender of the accused (51 total), 88% of accused people were men and 12% were women. Out of the cases in which court watchers recorded the race of the accused (48 total), 64% were Black, 19% were White and 17% were Latinx.


Reflection from a Watcher

This system seems hopelessly ill equipped to handle the bodies it claims dominion over. This was apparent to me on day one, when an attorney called into the courtroom I was attending for help from court officers. A dozen sprung up immediately and bolted towards the door until the attorney noted “someone is having a seizure”, when then all but one or two of those officers turned around, almost disappointed, perhaps realizing their training prepared them to deal with bodies in a very different way than helping someone in need.

This was made apparent to me again, when a man in an interview room became frantic over a 32 year old warrant that was about to prevent his release. “32 years!”, he yelled over and over again, until he sprawled out on the floor inside the interview room and the judge casually left the courtroom. There, another detained person on the bench pointed out to the court officers that the man in the interview room had asthma, and was hyperventilating. So they took the man back into the Tombs, where he immediately started throwing up, and an enraged court officer brought him a trash can. Twenty or so minutes after the man went behind the closed door to the Tombs, and the judge had returned, medics passed through the courtroom. “Twenty minutes for medical attention for an asthma attack?,” I thought to myself.

I find many of the court workers to be callously engaged in their personal conversations while this all is going on, and my hand is covering my mouth, agape. I suppose I can’t blame them, this is how one adapts to seeing this sort of thing every day. But still, these detained people have been brought here under the state’s discretion. The state wants them here, and therefore should be responsible for what that entails. In the outside world that often requires tremendous networks of support from families and friends, that allow us to stay alive and functioning each day with each other’s aid. That’s the burden that the state seems to accept, and then neglects, when sweeping people up in such a system.

And for some, their very act of survival is how they end up here. An elderly, thin, black man goes before the stand to accept a plea for petit larceny and is read the diatribe of guilt that he must admit to for the plea to be sufficiently accepted. When the judge asks, “Do you have anything else to say?” her diatribe is unexpectedly interrupted by “I was hungry” from the man, referencing the sausages he allegedly stole.