The Right (not) To Be Present

My pal and artistic muse, former Bronx Defender cum television maven David Feige, has an op-ed in the  New York Times that’s, well, quite brilliant.  Brilliant not just because he’s right, but because of the sheer simplicity of the idea. which could so fundamentally alter the dynamic of the criminal justice system to make it almost palatable.


Every year in New York City, more than a quarter of a million people are arrested and charged with misdemeanor offenses. The vast majority of those who don’t plead guilty right away are released without bail and ordered to return to court to fight their cases until they are concluded. But as William Glaberson reported in The New York Times on Wednesday, that can take a very long time.

Reducing the vast number of people charged with relatively minor offenses would go a long way toward easing this immense burden. But even without a shift in policing strategy, there’s one straightforward fix we can make: treat criminal cases more like civil cases by excusing defendants from appearing in court until the prosecution is actually ready to try them.
The concept behind a criminal defendant being required to appear in court for every appearance, most of which consist of 90 seconds of face time before the judge after a couple hours of sitting on wooden benches ultimately resulting in an adjournment to another date, had a twofold genesis.  The first was to make certain that defendants were still around and hadn’t absconded after they were released. The second was to make living through the prosecution inconvenient and unpleasant, the “ride” versus the “rap.”

It’s not that things don’t happen in court, and that the defendants shouldn’t be there to see, but that the burden of appearing monthly, sometimes more, in cases that drag on for more than a year, even two, is a killer.


This happens even when prosecutors have advised the court in advance that they are not ready to proceed. The appearance requirement — which can cost a person weeks of lost paychecks and hours spent arranging child care — rapidly becomes onerous. As a result, more than 99 percent of those who initially want to fight the charges are worn down by the legal equivalent of “Waiting for Godot,” and eventually agree to plea bargains to end their cases. The same is true for misdemeanor cases in many other major American cities: the process has become the punishment.
When Feige writes of prosecutors advising the court in advance of unreadiness, that’s not the norm.  The usual sequence is show-up, sit and wait for the case to be called, calendar assistant has a note that something along the lines of “People not ready,” because a cop has an RDO (regular day off, which is the predominant driving force in the scheduling of trials! Nothing, no court, no prosecutor and certainly no defense lawyer, interferes with an RDO), but they will be ready in two days.

So a choice is presented. Come back in two days, where the process will be repeated with another excuse, another representation of future readiness in a day or two, rinse, repeat.  But the defendant’s boss won’t hold his job for him this way, and somebody has to care for the babies, and it’s all a complete waste of time anyway because after returning every two days for a week or two, either the prosecution will come up with a lengthier excuse, “the assigned ADA is starting a trial (note the word “starting,” which is a euphemism) and won’t be available for three weeks,” at which point the case is adjourned for a month.  And it all starts over. The boss isn’t pleased.  The baby sitter isn’t available.  The defendant can’t stand the stress.

And this is true for the innocent and guilty alike.


So why not make criminal justice more civil? At least for nonessential proceedings, misdemeanor defendants who would prefer to let their lawyers do the work should be excused from having to appear in court. Or to frame it another way, courts should require a defendant to be present only when something substantive — like a negotiated disposition, hearing or trial — is really going to happen.

The problem is that one never quite knows when something substantive is “really going to happen.”  Of course, that could easily be fixed with some basic communication, like the prosecutor informing the defense in advance of the appearance whether they’re ready to do something. But that’s would burden the prosecution in two ways: first, they would have to think rather than shoot from the hip the morning the case was on the calendar.

Second, this would make it a lot harder to lie about their status, which is rampant now and which judges allow without the slightest concern.  The prosecution is almost always “ready” to stop the speedy trial clock from running when they’re confident the defense isn’t or can’t be (such as prior to motions), but rarely ready when the defense is. Amazing how that happens, and it plays out before a judge who closes his eyes and ears really hard as if there was an iota of truth to the game.

So couldn’t judges just, you know, excuse defendants from appearing unnecessarily, require the prosecution to inform the defense when they are ready to move forward on a substantive issue and return reason to the system? Well, of course they could.


Judges already have the power to excuse defendants but they nearly always refuse to use it. A recent study by the Bronx Defenders, which provides free legal representation to poor people, found that vanishingly few judges would even entertain a motion to excuse a defendant — and among those few who did, even fewer ever granted such a request.

Among the many dirty little secrets of the judiciary is that they are turned into closet bureaucrats, forced by their internal administration not to take any actions that might embarrass the club like excusing defendant who might later fail to appear when needed, raising the stats on absconders and reflecting a judiciary who can’t control their litigants, who then go out and rape, steal and murder. 

And so judges are very reluctant to take any chances with defendants not being under their critical auspices (as if that changes anything).  In practical terms, that means it’s easier for the judges to require every defendant to appear for every pointless calendar call at the defendants’ expense to make the judge’s life easier and grease the wheels of the system.

Feige calls for a legislative shift to allow this to happen. It makes enormous sense and would be a huge benefit to defendants, those “presumed innocent” people who suffer the indignities of a system designed for everyone’s benefit but theirs.  Which pretty much means it doesn’t stand a chance. But it is brilliant.

14 comments on “The Right (not) To Be Present

  1. David

    If this statistic is accurate:
    “906,243 court appearances — which ended in a mere 506 jury trials”

    Then the issue should not be to excuse the defendant, it seems the issue is the inability schedule. In these modern days with electronic calendars and such, you think that they could reconfirm these things a week out and not waste everyone’s time including the court.

    There will always be extraordinary issues such as illness or other last minute issues but this statistic is a travesty and shows the system for what it is.

  2. SHG

    Not exactly. There are other things that happen in court, motions, hearings, etc., that justify a multiple of appearances to trial, even if every case ended with a trial. Then there is the plea rate, so that 97% of cases do not end with a trial.  The court appearances to jury trials statistic isn’t particularly helpful and consideration of it will lead you astray.

  3. Rick Horowitz

    We have that here in California. (Penal Code § 977.) It’s great for clients, but it’s also good for attorneys. I like that if I have somehow to be in two or three courtrooms for morning calendar, I don’t have every client sitting, waiting for me to arrive.

    Also, when “nothing new” has happened, you still spend anywhere from a few minutes to many minutes talking to your client with nothing new to report.

    Not that I mind talking to clients. I give them whatever time they feel they need. But 977 appearances do make the day go faster.

  4. SHG

    And the sky hasn’t fallen? How is that possible? It would be the end of the world in New York.

  5. C. N. Nevets

    As an outsider to the system, I’m trying to get my head around the reality you describe. On the one hand, I want to say something like, “Surely this sort of red tape harassment of brings with it due process or speedy trial issues?” On the other hand, even if that were so, I don’t see where the impact of those issues would ever be such that they could rise the level of having any recourse.

    Which leaves me befuddled.

    The right to not appear seems like a good starting point, but I’m struggling with this whole calendaring issue altogether. The defendant has to miss work or vacation or anything else, but the officer doesn’t need to miss an RDO? Or, for that matter, the schedule of RDO’s for the officer required to appear can’t be consulted ahead of time, when the date is set?

    My mind is boggling.

  6. Alexander

    This is way too weak a response to this problem. The defendant shouldn’t be required to be present on any occasion on which the prosecution isn’t REQUIRED to be prepared for something that genuinely requires the defendant’s presence, such as a trial. And if the prosecution doesn’t have an excuse for not being ready that would be equally well accepted from the defense, the case should be dismissed.

    Oh, and the cop has a day off? That’s no excuse for any mere civilian called as a witness. Issue a warrant and bring him in in handcuffs.

  7. fledermaus

    Speedy trial rights are more honored in the breech these days. I was lucky enough to work at a misdemeanor court that was strict about the 90 day rule. The city might have been able to get an extra week but that was it.

    But to answer your question the appellate courts have largly taken a “do as you will” when it comes to speedy trial rights, and defers to the prosecutor’s list of endless excuses and bemoans the large trial dockets.

  8. SHG

    An explanation of the game of speedy trial would take forever and bore the crap out of most people. Suffice it to say it’s a ridiculous game that judges let the prosecution play, knowing full well that their announcement of readiness is utter crap but rarely, if ever, holding them responsible.

    And that’s how the 30.30 motion crumbles.

  9. Chris

    It’s not a weak response. It’s a reasonable response in a system that seems to favor politics above process.

  10. SHG

    I’m not often accused of a weak response. As I’ve long suspected, I’m just your average moderate voice of reason.

  11. Nick

    We’ve been reading these articles here in California and pretty shocked at how crazy your system is in NY.
    Here:
    Every misdemeanor must go to jury within 30 days of arraignment if in custody and 45 days if out of custody. This includes all prosecution continuances and court delays. If there is no prosecutor or judge at the last day (which can be extended slightly, but only 10 days in very limited extreme cases), case dismissed.
    Second, misdemeanor defendants (with a few exceptions) have an absolute statutory right to appear through counsel unless it is an evidentiary hearing where ID is at issue. — I have handled cases where my clients were out of the country for the entire case (Though I would strongly advise against doing a trial without a defendant present, they are even allowed to miss that if they stip to ID).

  12. John Neff

    I think there must be more than a quarter of a million misdemeanor charges in NYC. That would be a rate of 3,000 per 100,000 residents. In my county it is 4,700 per 100,000 and we have nothing close to what is reported for NYC. I read a 2008 report by the Public Defenders Association and they reported 3,500 per 100,000 as a twelve state average. Some of the stuff they reported on was very bad but not as bad as what is reported about NYC.

  13. Ken Mackenzie

    In Queensland this very reform was introduced in the lower courts in 2008 (s20(3AA) Bail Act). It has worked well to the satisfaction of everyone involved.
    In the higher courts the system has been in place for as long as anyone can remember. Defendants are only required to attend when there is some point in them being there.

Comments are closed.