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.