Reflection from Watchers

Last week in court, there was a case that, like so many, I feel embodied and exposed the inefficiencies, inhumanities, and power dynamics which propel our criminal punishment system forward each day. It was a slow night in Brooklyn court, and a young female defendant had been called forward by the monotone court officer. She walked up to the podium handcuffed, shoelace-less, and beltless. She stood silently next to her young white defense attorney waiting for the ADA to make his way to his podium and begin proceedings that, for her, hold life-shaping weight, and for him, hold the weight of the case file in front of him. The ADA sat shuffling papers for a while, eventually approaching the bench and speaking in hardly recognizable legal jargon to ask the judge for more time for this case. The judge granted them more time and the young defendant went back to her spot behind the Plexiglas barrier. 

We saw another 2-3 cases come through after which Judge Dougherty announced that she would like to go to dinner now as there were not many other cases for the evening on the calendar. The ADA agreed and began to pack up the papers in front of them. Before the judge stood to leave and enjoy her dinner, the young defense attorney from earlier kindly reminded her that he still had his client in handcuffs sitting in the court room waiting to be arraigned. The defendant had been forgotten about.

Sitting silently with both her body and voice restrained; her body by the metal cuffs on her wrists along with 5 + armed court officers and her voice by the threat of more punishment if you speak out/at all. The judge said “Oh yea” and looked to the ADA, “Are you ready with the (Insert legal jargon)?”  With no explanation or feeling in his voice, the ADA responded “No.” The judge, seemingly satisfied with that answer, looked to the defense attorney and sort of shrugged. The defense asked for them to see this defendant first before breaking. At this insistence, Judge Dougherty inquired further with the ADA “when will you be ready?” To which the ADA responded “We’ve sent (legal jargon) upstairs and haven’t gotten it back yet.” The ADA only answers what is directly asked of them. No nod to when they think they’ll be ready or have whatever documents they need to proceed. With this, Judge Dougherty again looks at the defense says “We will see her first when we come back from dinner.” The Court officer announces they’re breaking and will return in an hour. With that, another hour of this young woman’s life is so flippantly spent in custody.

After many months of watching, this week saw one of the rare cases where the judicial system had a clear role to play, as a defendant was accused of an axe assault on his mother. The facts in the case were clear, and it’s a case whose severity requires some response from society; yet even there, in a case that probably meets the bar of what most people think of when they consider a sufficient reason to arrest someone, our system doesn’t address the underlying causes in a way that will be helpful. A suicide watch was requested for this defendant, and while arraignments don’t go into the likely mindset or mental health of the defendant, it’s a case where in the end mental health attention and psychiatric help is surely called for—something corrections officers aren’t equipped to handle.

This is the first case with such extreme injuries and clear violent intent, whatever the extenuating circumstances of possible mental illness, that has passed my way in six months of attending arraignments. The rest of the arrests fulfill a different role, often of policing communities of color. Judge Dougherty was presiding, who always takes a very paternal approach. That can be good (in a case where ADA Rossman requested an egregious $10k bail on an 18 yo black defendant who was involved in a program with a social worker and lived with a guardian, she made a point of ROR at the price of a lecture and a request for greater involvement with social services), but it can also lead to berating defendants who dare to speak in court. A black defendant who wanted to represent himself and make a sort of sovereign citizen argument was angrily shouted down, and his pro se request denied with a lot of aggression. The rules barring a defendant from speaking on their own behalf have an understandable legal rationale, but since defendants are adults, to be denied the agency to even directly answer a question (answers must be made to an attorney who passes the response on to the judge) is not just about legal norms in the courtroom. It’s also about stripping someone’s full personhood, who is represented only by quotes from an arresting officer read out by the ADA. A defendant claiming sovereign citizenship is making a point that has a certain emotional validity when they reject the power of the police system over them. It is a system that does operate with little oversight, where the claims and actions of officers are all accepted equally even though the record of the officers may reveal misbehavior. To object to it doesn’t do a defendant any favors in court, but to be made to accept the process meekly with no protest (when it may land you in pretrial detention) is a type of erasure. Yet put a toe out of line and the response from Judges is real anger—how dare you speak in their court, they ask? When no one is able to ask, how dare you charge someone in this way, or how dare the system be structured this way, it’s a real problem. It’s always notable when observing how much the submissiveness of the defendant is an expectation that, if it’s not observed (though there’s not exactly a primer on courtroom behavior), it causes an aggressive response from the bench. Obedience above justice is the message, unintended or not. 

Omission above justice, too. ADA Rossman requested an egregious $30k bail in a case where the black defendant was already remanded on another matter, and where the facts of the case were very hazy and an assault had left the defendant with a possible concussion. Rossman stepped in on the cases with some prior history by the defendant, and requested bail amounts that were extremely beyond reason. The defense attorney of the injured defendant made a case for hospital attention due to a potentially severe internal brain injury (a cat scan had detected a skull fracture), yet the accommodation made was only to get medical attention from the corrections office, which surely doesn’t have the same level of care. Our Brooklyn DA is incentivizing the wrong behavior from borough DAs, with the result that bail is set at unattainable levels and our fellow New Yorkers languish in jail under potential medical crises with no help from ‘innocent until proven guilty’. The cases where the response of the system is warranted or proportionate are vanishingly small. 

Another notable case saw a rejected plea deal of time served (I've always seen these accepted) where the black defendant was also filing a police misconduct complaint. He had a cast and had been accused of obstructing arrest.  The judge then had to make the ADA turn over a complaint form regarding the police conduct—Rossman did not volunteer this and was happy to not look into the injuries of the defendant or question the convenient police narrative. ADAs are given one set of claims and use these to argue for the most extreme outcome at the early stage of arraignments, whether or not an arrest may have involved police violence or relies on convenience in picking out who is being accused. Arraignments so often proceed as if police intervene only with just cause and proceed judiciously, when that can’t be taken as a given. 

Another black defendant, while ultimately RORed, had been arrested and held in jail over unpaid fines and DMV tickets after operating a vehicle on a suspended license. The refusal of the courts to see the real obstacle of paying fines, and the fact that they have interest accrue on them to boot, is a big problem. Watching on a slow night in some ways is much preferable to nights like this one, when defendant after defendant is pushed through, some RORed, but others trapped in unjust circumstances.