LAST WEEK IN COURT

OCTOBER 2 - OCTOBER 8

Borough: Brooklyn | Judge: Abena Darkeh

  • An ADA requested $1,500 bail for an employed single mother of three with no priors. She was charged with Assault in the 2nd and was alleged to have elbowed a school safety agent in the chest after a verbal altercation. Despite these details, coupled with the fact that she had waited for the police to arrive after the incident, the ADA deemed her a flight risk. The prosecutor also mentioned having spoken to defense about the accused’s inability to pay bail, this requested amount apparently being a reflection of having agreed to lowering it. Judge Darkeh ROR’d.

  • $2,000 bail was asked for in a case in which a defendant had been described by police as having been extremely cooperative and having demonstrated immediate remorse for her actions. The accused had used a credit card she found in a lost wallet. Once confronted by police at her home, she took responsibility for her actions and returned the wallet back with all of its belongings. Despite these facts, the ADA decided to charge this as a felony. Even as an SSI recipient with no previous warrants, and with her daughter and grandson present in the courtroom, Judge Darkeh set bail at $1,500.

  • An ADA argued for $2,500 bail for a man charged with Public Lewdness, for allegedly masturbating in public. A doctor was present with the defense in order to attest to the defendant’s mental health issues, and to plead that the accused be released into immediate treatment. The public defender further argued that bail should be lowered to $300 at most to better reflect the defendant's income. Judge Darkeh set bail at $1,500.

  • Judge Darkeh called out an ADA for using allegations from a separate incident while attempting to argue for bail, one for which the defendant was not arrested for and not reflected in the charges. She stated that she would take into consideration that the DA had decided not to pursue charges in the incident being described.

Borough: Brooklyn | Judge: Edwards | ADA: Denise Montano

  • ADA Montano argued for $7,500 bail for a man charged with Assault in the 2nd after an altercation with a psychiatrist at a hospital. A full order of protection (OOP) was also requested. The man, who resided in a shelter, needed access to medical treatment at the hospital, which the full OOP would ban him from going to. The PD further argued that it would be in everyone’s best interest if the defendant were ROR’d and given access to city social services. Judge Edwards set $1,000 bail.

Borough: Manhattan | Judge: David Frey | ADA: Devin Barrett

  • ADA Barrett requested $15,000 bail for a black man charged with Burglary in the 3rd, with the ADA citing the man's previous misdemeanors and arguing that the defendant was a “flight risk” because he had “out of state connections.” Although the defense highlighted his nonviolent history and lack of felonies, Judge Frey set $10,000 bail.

  • ADA Barrett asked that $5,000 bail be set for a man caught with driving on a suspended license for the second time. The prosecution stated that bail was necessary because he’d been arrested two years ago by the same officer for the same offense. Newly employed, with four friends present in the courtroom, and with a promise to pay his tickets, Judge Frey ROR’d.

  • ADA Barrett requested $25,000 for a 16-year-old charged with Assault and Robbery. With no criminal record and his mother present in the courtroom, the Judge ROR’d.

  • $15,000 bail was requested for a man alleged to have stolen food items and physically injured a security guard. The defendant had three open cases but no prior convictions. The public defender contested that the guard was overly aggressive and also went on to detail the various ways the in which the client had overcome a very difficult life, pointing out the significant achievements made in spite of it. Judge Frey set bail at $5,000.

Borough: Manhattan | Judge: Martinez Alonso | ADA: Julia Cohen

  • A young black man was offered a plea with a sentence of 90 days in jail for possessing Marijuana and for having a switchblade, both misdemeanor charges. The offer was declined, so ADA Cohen went on to request $3,500 bail. Judge Alonso ROR’d.

  • The ADA then requested $1,500 for another young black male charged with both a Marijuana and misdemeanor weapons charge. The Judge ROR’d.

LAST WEEK IN COURT

SEPTEMBER 25 - OCTOBER 1

Bail and Bondage

The gulf between the charge and the crime is outrageously wide, according to one court watcher. An accused person was allegedly caught with two food items. two children's items, and a piece of candy, all of which they offered to return. The prosecutor requested 30 days in jail and $15,000 bail for a shoplifting charge that caused no actual harm to the retailer and was likely a crime of poverty.

In the case of a fight between ex-spouses, bail is used as a punishment pre-trial. The accused, a Latinx man, aged 25-34, has shown up to all previous court dates. If sent to jail, he'd lose all income as a construction worker. Yet, the prosecutor requests $7,000 bail, claiming without explanation that the accused is a high flight risk. The judge lowers bail to $2,500 bond or $1,250 cash, which the accused person can't afford. A court watcher asks: Why jail him, if not as punishment for a crime of which he hasn't been convicted?

In a domestic violence case between sisters, bail is also clearly misused. Because the accused, a young Latinx woman, 25-34 years old, has a prior failure to appear, the DA requests $1,500 bail and the judge sets it at $1,000. This, despite the accused's nonviolent past, her stable life - married, with a child - and the fact that her sister, the complaining witness, doesn't want to proceed with the case.

This is Justice?

In one case, Brady material is left out of the prosecution's statement. A black man accused of stabbing someone appears in front of the judge handcuffed and wearing a strange white plastic, hooded bodysuit. The defense is "putting the prosecution on notice" about not presenting exculpatory evidence, specifically that the complaining witness was high or intoxicated; two people identified the accused as not the person who actually did the stabbing; the accused doesn’t have any prior felony convictions - all priors are misdemeanors. Nevertheless, the judge grants the $50,000 bail requested by the ADA. The same accused person faces a misdemeanor charge, for which the prosecutor requests an additional $10,000 bail. The defense argues that this charge will likely be dropped, that her client is unable to pay, and has other bail. Judge Frye lowers the bail to $3,000.

In another case, a black man with no criminal record, 16-24 years old, allegedly threatened two witnesses with a knife and slashed theirtires. The police do not find a weapon, so the ADA amends their statement, saying that the police found a knife in the pocket of the accused. The accused claims he was attacked - he has a cane and visible injuries. The $1,000 bail requested by the prosecution is granted by the judge.

Poverty is criminalized in the arraignment process. For instance, a black man, 25-34 years old, accused of shoplifting and possession of stolen property, is living in a shelter, where he's been staying for about a year. Because of a current DAT for a very recent arrest and an open warrant in the Bronx, Manhattan Judge Frye wants to set bail. The defense asks that their client be released - his caseworker is present, he relies on public services for his livelihood, and will lose his place in the shelter, leaving him in an unsafe and unstable situation. How can he deal with the warrant if he's in jail? How can he afford bail if he lives in a shelter?

Time and Trauma

Court watchers document the dispassionate, routine nature of the arraignment process, except for the accused and their supporters. It seems very rote, like they are just going through the motions. Only the defense attorney seems nervous. Breaks are taken frequently. Everything moves along as if everyone knows exactly what's going on. How many accused people really understand the process? In fact, one judge refuses a request to pay bail with a credit card, stating, "I don't need to give a reason". A judge, who doesn't make eye contact with the accused while hearing his case, feels justified in threatening him: "if you don't show up" to the next scheduled court date, "you go to Rikers".

Pointing to serious, potentially life-threatening results of getting entangled in this system, a diabetic is left without insulin for two entire days because when she appeared with a signed access order to retrieve her medication and the documents confirming her illness, the complainant refused to open the door. According to a court watcher, the prosecutor seems completely unsympathetic to the medical needs of the accused, saying that the complainant has no phone, therefore can't be reached to make sure the diabetic got her medication. Instead, she is made to wait for a new access order, which officers will accompany her to enforce. During the proceedings, she is so weak and unwell that the defense asks for permission for her to be seated.

A session with 10 pending cases starts late and nobody knew where the judge was. The defense seems annoyed, while the accused show mixed emotions during the wait. Some are on the verge of passing out. Most have no family or community support. The courtroom is noisy during deliberations, with most of the noise coming from the court employees. The judge mumbles and whispers. It's so hard to hear anything. Adding to the harshness and neglect, court watchers reflect on how it seems the time families and other supporters spend in the courtroom is not valued or respected. Families waiting in the gallery don't know and aren't informed of what's going on. How can people with dependents be expected to carve out a full three hours to sit through this?

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.