LAST WEEK IN COURT

JUNE 05 - JUNE 11

Watchers' Major Takeaways

  • Numerical markers of injustice from this week:
    • 75% of cases seen this week were under 5 minutes.
    • Over 90% of the accused were people of color.
    • The official charges are often only mentioned in passing. In both Brooklyn and Manhattan, 50% of watchers were unable to record the penal law that was being discussed.
    • Bail arguments most commonly employed by the prosecution:
      • Prior arrests / convictions (60%)
      • Severity of current charge (35%)
      • Strength / weakness of evidence (30%)
    • Bail arguments most commonly used by the defense:
      • Ties to community (65%)
      • Currently working / going to school (40%)
      • Strength / weakness of evidence (30%)
  • In all drug-related cases, most of which involved possession or tampering, an exorbitantly high bail was recommended by the prosecution at amounts of $10k, $15k, or even $25k. The prosecutor recommended a rehabilitation program only once.
  • Multiple cases of petit larceny (shoplifting; small theft) highlighted underlying issues of poverty, and brought to question the nature by which we deal with such infractions in a punitive matter.
    • Watchers described one case in which the defendant was charged with two counts of petit larceny, one for stealing four packages of soap and body wash, the other charge for stealing lip gloss. Prosecution asked for a one-year jail sentence. The judge sided with the defense and sentenced the accused to a jail alternative program. If the defendant fails to complete the program however, they will have to complete a 30-day jail sentence.
    • In another case, the prosecution requested 20k in bail for a defendant accused of stealing 1k worth of ice cream. The defense argued that this accusation was highly improbable. The judge still decided to set bail at 1k cash/ 1k bond.
    • One watcher detailed a case in which a man was accused of stealing toothpaste and pain medication. The ADA offered a 5-day/week mandated program with 15-day jail alternative. The defense pleaded for a 3-day/week mandate, arguing that his client was homeless and attempting to deal with his substance abuse issues, which would make it very difficult for him to attend this program with such frequency and such a sentence would likely set him up for failure. The judge sided with the prosecution, but exhibited some arbitrary form of empathy by lowering it to a 10-day jail alternative if the man fails to complete the program.
    • A defendant pleaded guilty to one charge of tampering with a Metrocard machine and another charge of attempting to use a bent Metrocard, and was sentenced to 7-months in jail.
  • Prosecutors continued to demonstrate a lack of familiarity with the cases they brought forth. Watchers noted ADA’s being especially confused when multiple dockets were involved, implying little or no to familiarity with the multiple accusations they were charging defendants with. Watchers detailed prosecutors not having paperwork in order, not being able to answer questions regarding the charges being brought forth, and at least two instances of having mistaken the defendant’s identity when citing their criminal backgrounds and bench warrants. One watcher wrote, “imagine your fate being decided by a bunch of people misreading your paperwork."
  • Court proceedings continue to be often difficult to hear and understand for watchers, demonstrating a lack of accountability to the public audience and perhaps lack of experience with having previously been watched by interested parties.  While in theory the court is open to the public, the inaudible and often rushed nature of the proceedings stands in conflict with the promise of transparency.
     
  • Prosecutors continued to frequently cite priors during the bail negotiations, failing to disclose how long ago they occurred and regardless of the nonviolent nature or general nature of previous crimes. One watcher detailed a case in which the defendant was deemed a flight risk for having missed court before. The defense explained that the defendant had missed her criminal court dates due to her conflicting family court dates, and that she was currently fighting to win her children back. The defense also cited that she had no criminal history and that she would not have the resources to pay bail. Regardless, the judge still granted bail at the number requested by the prosecutor.
     
  • Some cases highlighted how issues of mental health are being dealt with within the constraints of our (sometimes unintentionally) punitive system.
    • Watchers noted a case involving a black teenager who had just been arrested upon release from jail. Defense made a strong case for the judge to institute a mental hygiene rule (9.43) that would require the defendant to be immediately admitted for psychiatric evaluation. The defense cited a previous admittance into Bellevue mental health facility as well as statements from his foster mother that the teen had recently begun exhibiting some disturbing behavior and that he had previously been a star athlete and good student. His foster mother, a youth counselor who was present in the courtroom, was agreeing to comply with the defenses strategy and ready to take him to the hospital. Throughout the defenses insistence that a mental health issue could explain these infractions, the judge questioned the validity of these statements. The prosecution asked for 4k bail, the judge granted 3k.
  • One Watcher described instance of a particularly hostile judge who throughout the arraignments had been continuously sarcastic and chastising both the PD and ADA. One particular which incident stood out to the watcher began when the judge agreed to an order of protection without bail, but then quickly changed her mind when the public defender attempted to more fully illustrate the facts of the case and describe the client. The watcher observed in her reflection form that the actions of the PD seemed to irritate the judge, that she seemed bored and annoyed at having to hear details of the case; therefore, she decided to set bail at 5k/5k and did not allow for any response. The watcher stated that there “seemed no way to get around this judges whims and convince her to be more patient and understanding.”

Reflections from a Watcher

Manhattan Criminal Court, AR3
Wednesday June 6, 2018 6-9pm

Before volunteering for Court Watch, I would have thought that someone distinguished enough to claim the title of “the people” -  someone with the power to request bail or even jail time - would be competent. But elected New York City prosecutors never fail to underwhelm, and my Court Watch stint during the night of June 6 was a case in point.

Arraignments at Manhattan Criminal Court are difficult to follow - the rapid pace, low volume, and background noise don’t help - but it was easy to spot the prosecutor's disorganization. He charged one of the night’s first defendants with stealing four packages of soap and body wash from a pharmacy. He requested bail (I didn’t catch the amount), but when the public defender and judge balked given the trivial charges, he was unable to provide justification. The judge set a jail alternative.

“The people” then charged a defendant with stealing $1,000 of ice cream from Rite Aid. When the judge and public defender suggested that this was impossible - even, as the judge suggested, with an expensive brand like Haagen-Dazs - the prosecutor just mumbled something about his notes. It seemed clear that the prosecution dreamed up the $1,000 figure since it meets the threshold for grand larceny, a felony, but the prosecutor was again unable to justify bail. Still, the judge set $3,000 bail (if I heard correctly). If the defendant fails to pay - and he likely will not be able to - he will sit in jail until trial.

Sometimes the prosecutor couldn’t find his notes. When they turned up, he dispassionately read them aloud, unable to answer basic questions. While he had a heavy caseload, most arraignments were for relatively trivial crimes - like drugs and shoplifting - and almost all defendants were men of color.

This raises questions about Manhattan District Attorney Cy Vance’s ostensibly “progressive” platform. Vance won re-election in November 2017, seeking to “end the criminal prosecution of thousands of low-level, nonviolent offenses annually,” with a focus on communities of color. But his office currently prosecutes so many low level, nonviolent offenses that prosecutors cannot even provide defendants with the dignity of knowing case specifics.

LAST WEEK IN COURT

MAY 29 - JUNE 04

Watchers' Major Takeaways

  • Prosecutors continue to argue for bail based on defendant’s criminal record or alleged nature of the crime, not on their ability to return to court.
    • Out of all cases observed, prior convictions/arrests was the most cited reason by prosecutors when requesting bail (58.3% of cases), whereas flight risk was only cited in 16.7% of observed cases. Judges most commonly cited the current charge as the reason for setting bail. Defense attorneys most often provided reasoning related to their clients' ties to the community as to why bail should not be set.
  • Bail amounts continue to seem arbitrary.
    • Even under judges that appeared to be ruling favorably towards reasonable bail amounts, there were still cases with minor charges that received high bail amounts. When evaluating judges’ rulings on bail and the type of charges present, clear patterns could still not be found.
    • In one case in Brooklyn, the prosecutor requested bail to be set at $30,000 without any substantial reason as to why that specific number was chosen. There was also no indication as to why the final bail amount was eventually set.
  • Prosecutors do not appear to be knowledgeable on the cases before them.
    • In one specific case, the prosecutor actually stated that she was well prepared for the trial and noted that she possessed a copy of the order of protection that is relevant to the case. However, the public defender disproves this fact and reflects that the prosecutor has the wrong order of protection and is trying to submit to court one that is not even certified.
    • Additionally, in several cases, prosecutors are seen reading off scripts while being unable to provide detailed answers to follow-up questions.
  • High bails are requested for charges with minimal evidence.
    • One watcher witnessed a 17 year-old Black high school student arrested after complaining witness stated that “someone” shot him in the hip.  Student has no priors. Complaining witness could not positively ID the student in a double blind photo array. Police claimed to later witness the student holding a pistol and then fleeing with another individual.   The only identifying information was the color of the shirt the student was wearing and the word of the arresting officer. DA asked for $100,000 bail; judge set bail at $4,000 cash/$6,000 bond.

Reflections from a Watcher

Brooklyn Criminal Court, Room 110
Sunday 10am-1pm

I usually Court Watch on Sundays, and usually in Brooklyn, and I am beginning to feel familiar with room 110 of the Brooklyn Criminal Court. For some reason, the most recent time I was there, I felt extra aware of how sounds from outside on the street made their way into the room every once in a while: loud conversations, squealing brakes, a thumping bass played from a car stereo. There were fewer people seated in the audience than I’ve seen in the past, maybe three or four other people were there, sitting on the hard wooden benches.

During my shift, I was not surprised by much of what I saw. I was frustrated that I did not know, nor know how to obtain, the names of ADAs or of PDs. I could not find that information printed or displayed anywhere. I had to ask the court clerk for the judge’s name, which she patiently spelled out for me. Once proceedings began, I was frustrated at the speed at which cases moved by, as I always am. Often, I was barely able to record the docket number and begin taking notes before Judge Yavinsky made his decision. Charges were rarely announced in a clear cut way, nor were they read in an audible register for the audience.

In cases where the ADA was requesting a large amount of money for bail, the judge would often lower the amount from a ludicrously high number to another, slightly lower, amount. I wondered what Judge Yavinsky’s intention was when he decreased a bail amount from $50,000 to $20,000.

As always, the tone of the room was weirdly casual and dispassionate, and the gravity of decisions being made—often in 2 minutes or less—between the chatting and laughter of court officers, public defenders, and prosecutors was discomforting.

LAST WEEK IN COURT

MAY 21 - MAY 28

Watchers' Major Takeaways

  • Most cases wrapped up in under 5 minutes, with the court spending fewer than 2 minutes on 15% of cases and 2-5 minutes in nearly 40% of cases. In some instances, watchers noted that little time was spent on crucial details.
  • Court watchers noted that past criminal history was often mentioned by prosecutors. Defense attorneys strove to put these past charges into perspective, and to explain why they did not indicate that their client would likely fail to appear for court appearances. A few cases in which this occurred jumped out:
    • In one case, the accused was charged with a felony (possession of crack cocaine). The ADA noted that the person had a record (felonies, misdemeanors, failure-to-appear) and requested $15,000 bail. The public defender, on the other hand, pointed out that accused’s last felony was in 1991, their most recent misdemeanor was 2 years ago, and their last failure-to-appear was 10 years ago. Given this context, the judge fortunately agreed with the defense attorney, and released the person on their own recognizance.
    • In another case, the ADA requested a 90-day sentence or $5,000 bail for a person charged with shoplifting and resisting arrest. The ADA then cited the accused's prior record, but the public defender countered that those incidents took place 32 years ago. Regardless, the judge ultimately set a $5,000 bail.
    • A third case in which the ADA’s mention of a past criminal history appeared to lack the appropriate details: the ADA requested $15,000 bail for a person charged with a burglary based on a prior record and failures to appear, the defense successfully argued for ROR, citing that the accused’s prior record was from when he was much younger and that he was now employed full-time.
  • Prosecutors continued to ask for bail more frequently, and at higher amounts, than judges ultimately decided on. Bail was set in about 30% of cases observed by court watchers, versus the 50% of cases in which prosecutors asked for the person to be held on bail. The median bail that prosecutors asked for was $15K, versus the $5K median bail decided on by the judge. (Note that this median may not be representative of all cases in the city, and there’s certainly a range of uncertainty given that our watchers sometimes could mishear or misunderstand the decisions).
  • As previous posts have noted, the demographics in the courtroom reflect the racially skewed system in which the vast majority of the accused are people of color (80%).
  • Many watchers noted this week (and in previous weeks) that it was hard to hear the judge, ADA, and public defender in the courtroom. During a watch this week, a few of us talked to the public defender present in the courtroom about this issue. She mentioned that there’s a competing factor: while courts are meant to be open to the public, there is also sensitive information about clients such as health issues or other matters. She personally felt uncomfortable yelling loudly about these things, and sometimes spoke more quietly, wanting to protect her clients’ privacy.
  • Watchers in Manhattan observed the judge set credit card bail in two instances, which is noteworthy as most watchers have observed bails set only as cash or bond.

Reflections from a Watcher

When I saw Harvey Weinstein go through arraignment and get out on bail smoothly with a pre-arranged deal, I couldn’t help but think about the people I watched have very different experiences in the past weeks.

First was the use of microphones. We were lucky if we could hear what was being said most of the time. Imagine having to choose whether to accept a plea deal that could alter your whole life after a few hurried mumbles. Imagine being a family member of the accused and not being able to hear the case being made against your loved one, or even the decision made. In my experience the defense was more interested in using the microphone and making sure the whole courtroom heard, the judges used it some of the time, and the prosecution rarely did.

Another difference was the evidence that the prosecution used to bring Weinstein into court in the first place and how they presented it. In the Weinstein case they said it was the product of months of serious investigation, but didn’t share any details beyond that. They even sealed the order of protection so that it was not known who had accused Weinstein, a luxury I did not see accusers get a single time throughout the 6 hours of arraignments I had watched in the past two weeks.

Just that Wednesday in the same court building, I saw a man who had been allegedly seen near a car with a bag of cocaine. The prosecution painted him as a serious industrial cocaine trafficker, failing to note that the car and bag both might not be his. After looking over the evidence the judge seemed bewildered. “Wait” he said, “what grounds did the police have to search him? Did they have a warrant?” There was a long pause from the prosecution. Finally, they responded that “the police had reasonable grounds to search him.” Later adding that the bag containing the cocaine was clear. It was black. They also painted a picture of him as a serial criminal, failing to note that his last conviction was in 1998.

Other differences were in the way bail was set and the way Weinstein simply had the means to walk free that others didn’t. The defendant found with cocaine had his family in the court room, claiming that they could only put together $5,000 to bail him out, but the Assistant District Attorney demand that it be set at $500,000. The judge, one of the more considerate ones, still set it at $250,000. It doesn’t matter that it was less than the $1 million Weinstein paid, because he would pay the sum, walk free, and get it back when he returned to court. What’s more he had the singular luxury of walking into court with the amount and manner of his bail already decided, rather than fighting it out with the prosecution in court, something I never saw in any of the cases I watched. The man accused of cocaine possession and trafficking, whose whole family was ready to put themselves under financial hardship to pay $5000 bail, will now sit in jail, perhaps for months, or even for 3 years like Kalief Browder. Innocent until proven guilty, but imprisoned nonetheless, he joins the 60-70% of the jail population imprisoned for this crime of poverty. As a society, we’ll pay a college education’s worth of tax dollars every year he stays.

This is a bonus jail sentence reserved for the poor, and we know from Browder’s case the way that a jail stay for lack of ability to pay bail, before the accused has had the chance of a fair trial, can kill you. In another case I saw the defense plead for bail not to be set, because the defendant had lost their job while imprisoned on bail the last time they were accused of a crime. Even the stays in prison that are lucky to be short can do this. Another student had exams coming up that they wouldn’t be able to retake until a year later. Their lack of money to pay it meant they’d have to retake their entire year of school. And if poorer defendants do manage to produce bail, one can only imagine what they have to give up to do so, even if only until the date of the trial.

The last difference I noted was the formality and professionalism in the courtroom. I guess the cameras do a lot. I saw a defendant told that he needed to stay away from his children after an assault charge on their mother. The evidence though, seemed to lean towards the idea that he was the one assaulted. Either way, his children now had to go without their father for the foreseeable future. The defendant left the court sobbing, but the cops and prosecution laughed amongst each other while watching him. I didn’t see anyone laughing at Weinstein.

What we saw with Harvey Weinstein was the justice system for the rich. Don’t think for a second that it’s the justice system most of us will face. The only thing the justice system for the poor and for minorities shares with what we saw on TV was the courtroom.

LAST WEEK IN COURT

MAY 14 - MAY 21

Watchers' Major Takeaways

  • Numerical markers of injustice from this week:
    • Those accused were 89% people of color. The prosecution was 95% White.

    • The judge stuck with the DA’s recommended sentence 70% of the time.

    • Failure to Appear was cited as the reason for the DA recommending bail only 16% of the time, but isn’t that the reason to set bail in the first place?

    • 40% of the time, there was no argument even given for requesting bail. 94% of the time, there was no reasoning given by the judge for their bail decision.

    • Many people said they had trouble finding out the judge’s name or the prosecutor’s name. This week, 44 people were able to record the ADA’s name, while 68 could not. For the month, 95 named the ADA, while 164 could not! This information should be more transparent to the public.

  • Time Crunch

    • As we have seen week after week, the emphasis was on quickly trying as many cases as possible. This week 69% of cases lasted less than 5 minutes. To think that a person’s fate is decided in such a small amount of time is absurd. Watchers noted that there was very little advocacy or argument in the courtroom, instead of going to trial, plea agreements were the norm.

    • “I saw 60 cases in one 3-hour shift.” - Watcher Amanda Farrell, 5/21, Manhattan AR2, 10am

    • “Almost all court officials, including the judge, were speaking almost too fast to understand and were mumbling. I can’t imagine what it’s like to have your day in court under these circumstances - where almost no one seems invested in explaining slowly and clearly what is happening to you.” - Nadja E-G, 5/22, Brooklyn, 105

  • What are we policing?

    • Though Cy Vance started an initiative aimed at ending the criminal prosecution of “low-level, non-violent offenses,” last week we saw many cases involving very cheap stolen goods resulting in absurd punishments. Stealing ice cream and a gift bag resulted in 15 days in jail, 12 bags of shrimp got 5 days, and 2 hairbrushes stolen from Duane Reade and “possession of someone else’s metrocard” got 20 days. An elderly black man was accused of stealing toothpaste and Preparation H. Can you imagine needing to steal a $6 medicine to relieve your pain - you’re likely already embarrassed - and then a corporate pharmacy presses charges? He was issued a $200 fine, and if he doesn’t pay, he will go to jail. If he can’t afford toothpaste, he likely won’t be able to afford the fine. In one case, Judge Yavinsky was even quoted as saying, “If you come back with $0, I’m putting you in jail.” He explicitly stated that the defendant’s freedom was dependent on paying money.

    • How much do these sentences cost the taxpayer? Not to mention the judge’s, district attorney’s, and police’s salaries, and every other expense associated with every step of the criminal justice system. One man was arrested for selling popsockets (the thing that sticks to the back of a cell phone) because they weren’t the proper brand and thus were a copyright violation. Why are we using police and our criminal justice system to enforce copyrights owned by private companies? It’s fair enough if the company finds him and files a lawsuit, but shouldn’t they go after whichever company is producing the knock-offs and not the guy selling them on the street?

    • Police are clearly just rounding people up, because what exactly is the social harm being done? We as a society need to ask ourselves, what are the police for? What is the purpose of our justice system? Who is being protected? Are our police meant to act as nothing more than hired enforcers for corporations? Should we really be using taxpayer money to round up, arrest, hold, and prosecute poverty? Who does this protect? NONE of these cases addressed a real social harm.


Reflections from a Watcher

Manhattan Criminal Court, AR2
Monday May 21, 2018

When thinking about ways that the criminal justice system criminalizes poverty, bail often stands out - many thousands of people are in jail (but not yet convicted) in NYC because of the inability to pay bail. But during a recent Manhattan court watch shift, what jumped out at me was that there are also many other ways that the system punishes low-income people. 

I was there with one other volunteer, and we recorded mostly very minor charges for misdemeanors in which people were either released on their own recognizance or pleaded guilty to the charge. When some people pleaded guilty, they were assigned community service, and were told that they'd have to return to court to prove they'd completed it. So at a minimum, that would likely be two days away from work: 1+ days for the service, and another day to return to court. If they fail to return to court in person, there will be a warrant for their arrest. Given the time it takes on public transit to get to court, and then the time spent waiting, couldn't the city allow them to submit the paperwork online? There seems to be no good reason for this, any more than there has been a reason to force families to physically pay bail at a jail - which often takes many hours to do - rather than online. (Even now that there's an online system in NYC for paying bail, it's not possible to pay most bails online, but only bails under $2.5K that the judge specifically says can be paid that way).

Another issue came up during the shift when a man pleaded guilty for stealing a couple small items including toothpaste. He was hit with a $200 fine plus surcharge. It goes without saying that someone who resorts to stealing basic necessities like toothpaste is unlikely to have $200+. So what happens next? If he doesn't pay the fine (and doesn't show up to get an extension)- will he then be charged another fine, or even arrested and held in jail? A Brennan Center report on court fines across 15 states found that courts rarely consider inability to pay, and that failure to pay can lead to suspension of a driver's license or incarceration (BBC and NPR also covered this issue). How many people are cycling through the system because they can't afford court payments? 

LAST WEEK IN COURT

MAY 7 - MAY 14

Watchers' Major Takeaways

  • We often know the demographics of the accused, but not those of the actors who actually hold the power and influence in the courtroom. So we’ve started tracking! And this is what we found last week:
 **Watchers mark demographics based on what they see and infer, not based on how individuals self-identify.   **Variation in count results from watchers skipping certain fields on the form.

**Watchers mark demographics based on what they see and infer, not based on how individuals self-identify.  
**Variation in count results from watchers skipping certain fields on the form.

Of note, 80% of observed defendants were Black and Latinx, compared to 0% of prosecutors, 8% of public defenders, and 30% of judges.

  • Of the cases observed last week, watchers marked 9% as felonies and 91% as misdemeanors.
     
  • Arraignments are one of the most, if not the most, important parts of a case. It is when the charges are read against the accused, pleas are negotiated, and bail is decided. This week, 62% of arraignment hearings watched lasted only 2-5 minutes per case, 1% were under 2 minutes long, 33% lasted over 5 minutes.
     
  • During observed bail hearings, when an argument was being made by the prosecutor about why the judge should set bail, “prior arrests and convictions” was the most common factor mentioned (40% of the time). This is despite the fact that in New York, bail is about a person’s ability to return to court, not their previous criminal record. The most common factors mentioned by the defense were “currently employed/in school” (17% of the time) and “ties to the community” (22%).
     
  • Watchers saw several prosecutors in Manhattan ask the judge to set bail bail on people arrested on drug charges. In one case, the ADA requested 7,500 and the judge released the young man on supervision. On another, the ADA initially requested $10,000, then increased their request to $20,000, and the judge set $7500. This older Black man was accused of being a lookout while someone else sold drugs.
     
  • One court watcher observed that the ADA would verbally accentuate aspects of the complaint that were the most damning and would become very pointed and angry while reading out the details of an incident to the judge. Other watchers noted how casually ADAs treated aspects of the arraignments that would harm defendants, like bail and orders of protection. One volunteer watched an ADA on the phone while the judge was speaking to the defendant.
     
  • Often, when prosecutors requested bail, judges assigned people to Supervised Release programs, instead of releasing them on their own recognizance. Some judges used this as an opportunity to warn accused people that this was their last chance. One said that bail “will absolutely be set” next time if the person did not appear in court.
     
  • Once again court watchers noticed how much power the court has over families. One woman was charged with a DUI, and since daughter was in the car when she was arrested, the DA requested a full order of protection with the daughter and $5000 bail. The woman’s family was in court, emotional and upset at the prospect of having the defendant taken to jail and separated from her daughter. The judge allowed her to be released under supervision and to be around her daughter, but prevented her from driving with her daughter. If the prosecutor had their way, they would have been separated for months at the least.

Reflections from a Watcher

Brooklyn Criminal Court

Justice is arbitrary.  During my first two shifts, judges barely participated, usually accepting the DA's recommendation.  At my third shift in Brooklyn, Judge Perlmutter engaged each defendant seeking to understand their circumstances and encouraging alternatives to incarceration.  This encouraged defense attorneys to advocate more forcefully than in my prior shifts where the process was more impersonal.  

The DAs are still asking for bail in non violent misdemeanor cases.  Asking a homeless man for $10,000 bail when he clearly doesn't have $10 is penal and ignores the available programs that could help the individual.

The DA is still prosecuting people for smoking weed on the street.