When Night Court Met “Com-pu-ters”

A generation ago, a Legal Aid lawyer named Michele Maxian took on the special projects that most of us would have loved to, but couldn’t.  The stuff we griped about that was wrong with how the system worked, and what it did to our clients, was the stuff she fought. And won.

One such case was People ex rel. Maxian v. Brown, the New York Police Commissioner who just couldn’t manage to get a defendant to arraignment on time. Suspected shoplifter, Damon Roundtree, on whose behalf the writ was brought, spent 51 hours awaiting arraignment. Michele went to war.

Under CPL 140.20(1), a police officer, after performing  without unnecessary delay the required preliminary police duties,  must without unnecessary delay bring a person arrested without a  warrant to a local criminal court for arraignment.

Justice Soloff also found . . . that the initial eleven to fifteen  hours following arrest are generally consumed by the above police  functions and the “totality of the processes” can usually be  completed “in 24 hours with time to spare including any travel  which must be done within New York County”.  She found all the arrestees were held longer than 24 hours and that little attempt was made to explain the delays.  The trial court concluded that,  under these circumstances, a period of delay over 24 hours raises  a presumption that the delay is unnecessary within the meaning of  CPL 140.20(1), requiring, on demand, a satisfactory explanation  of that delay.

The  Appellate Division concluded that the steps leading up to  arraignment can generally be accomplished well within 24 hours  after arrest and that the delays present in each of the  consolidated proceedings here were “unnecessary” within the  meaning of CPL 140.20(1). We find no reason on this record to  disturb this conclusion.

Writ upon writ was filed after Roundtree, as the case was known, and at 24 hours on the dot, we stormed into AR-1 though 5, demanding the immediate release of our clients. And for a short period of time, the judges complied. Until one day, when suddenly no one gave a damn anymore, and the Latin of meh became the rule.

The New York Times lauded the efforts of Judge George A. Grasso:

But in the last year and a half, New York has made remarkable strides. For the first time since 2001, the average time it takes to bring a defendant before a judge for arraignment fell last year to below 24 hours in all five boroughs. The 24-hour benchmark had been set by the state’s highest court in a pivotal 1991 decision, but it proved mostly elusive, especially in the Bronx and Brooklyn.

The solution, according to many criminal justice officials, can largely be traced to a computer-tracking initiative spearheaded by Judge George A. Grasso, a former first deputy commissioner in the Police Department who was put in charge of arraignment courts in April 2012 — as well as the discovery of a cache of unused scanners that were bought to track case files.

Back in 1991, the system by which arraignments operated in New York City remained largely archaic, pushing paper, awaiting lengthy delays for prints and criminal history, sitting around waiting for the papers and the body to arrive, or the donuts to come out of the oven, as the case may be.  And yet, the Court of Appeals set the presumptive time limit at 24 hours.

In 2014, we have technology that was inconceivable back when Roundtree was decided. No longer is the question how long a telex from Albany takes to get turned around, or the usual amount of time a clerk requires to leaf through the rap sheets and send it off. Sure, the same pervasive GIGO problems plague the system, but the turnaround time on bad info is the same as good, and it’s now measured in milliseconds rather than hours.

So, hooray, they are finally beginning to make some headway with 24 hour arraignments. It’s a miracle!!!

And thank our lucky stars, Judge Grasso stumbled upon a “cache of unused scanners,” which raises three questions. Why was there a cache of unused scanners bought and paid for by the taxpayers? Why did it require the judge to stumble upon them, as opposed to buying them if they were needed to comply with the law?  Why didn’t anyone think of using technology at some point in the last 23 years?

This isn’t to be unappreciative of Judge Grasso’s efforts, or Admin Judge Barry Kamins’ efforts to put someone in charge to get defendants to arraignment within even a minimally acceptable time frame.  After all, consider the miscreants taking the 24-hour plus ride:

At 10 a.m., Rayvone Gibson, 19, was arraigned on charges he had used someone else’s school MetroCard to ride the subway. The police had picked him up at 6 p.m. the day before; he was released on his own recognizance.

He said he had been arrested three times before for “little stuff, marijuana mostly” but had never been released sooner than 24 hours.

“This is the fastest time I ever spent here,” Mr. Gibson said. “Usually it takes a day or two. You could be sitting there all day and not see your lawyer.”

A system clogged with such dangerous characters as a kid who used someone else’s Metrocard (that’s how they get onto the subway in New York City). Anarchy prevented.  It’s certainly worthwhile to hold such a threat to society in custody for a day or two before being arraigned, and most likely released immediately provided they don’t have a couple of murders on their sheet.

The question now, a mere 23 years after New York’s highest court held that 24 hours is presumptively the longest a person can be held without arraignment, why we still struggle to meet the outside limit.  The Roundtree decision was based on a time frame required by systems that were archaic in light of existing technology.  Other than the hour it takes to print and transport a defendant, and the hour it takes for ECAB to write up the complaint and have the arresting officer sign it, the balance of the necessary pre-arraignment ritual is completable in about 30 seconds.

And yet here we are, 23 years after Roundtree, throwing a party because New York has finally made headway, bringing the average delay from arrest to arraignment below 24 hours. The average. Not every case, but the average.  What’s next, order the NYPD to lose the horse-drawn Conestoga wagon prisoner transports?

12 thoughts on “When Night Court Met “Com-pu-ters”

  1. Rick Horowitz

    In Fresno, where controlling state law allows “without unreasonable delay,” and allegedly a max of 48 hours between arrest and arraignment, people will typically sit in jail for up to 4-5 days before arraignment.

    I’ve often wondered why we defense attorneys don’t do more to fight this, as there’s really no good excuse for it.

    I’ve pointed out the law to attorneys who have been practicing longer than me to ask what gives. They usually shrug, and occasionally state a belief that case law allows the longer time.

    Your post makes me want to take a closer look at this issue.

    1. SHG Post author

      This is one of those “that’s the way it is” things that shouldn’t be. But you know how much judges like to rock the system-boat, make things happen the way the law requires and cut defendants loose when the constable blunders.

      By the way, the reason its 48 hours is the United States Supreme Court’s decision in County of Riverside v. McLaughlin, pretty damn good authority to demand 48 hour max. Note the dissent by Scalia, by the way.

    2. Fubar

      Some, certainly not all, long time to arraignment periods can be explained by arrest times and the calendar of court holidays, as noted in County of Riverside v. McLaughlin by SHG.

      I’m not sure how many, or which, CA counties combine PC hearings with arraignment for non-warrant arrests, the implications of which practice was at issue in McLaughlin.

      It’s been a long time, but as I recall in the couple of counties I had some familiarity with, most 4-5 day periods from arrest to arraignment were result of arrest late on Wednesday preceding a four day holiday weekend. Frequently these were DUI, from after-work “happy hour” drinking before holiday weekend.

      1. Rick Horowitz

        Unless I’m misreading McLaughlin, the “48-hour rule” is not simply a matter of whether or not a PC hearing is combined with arraignment. Granted the Court allowed up to 48 hours because of that, but they also went on to say:

        Where an arrested individual does not receive a probable cause determination within 48 hours…the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.

        The Court then notes that “intervening weekends” do not qualify as extraordinary circumstances.

        In that respect, I’m still left trying to decide why California excludes weekends.

        1. SHG Post author

          That is my understanding of Riverside as well, and the “three day weekend” provides no excuse whatsoever to delay an arraignment, and is a facially unconstitutional.

          So it’s weekend? What does that have to do with the presumptively innocent person in jail awaiting arraignment? It’s no excuse for holding someone in custody more than the permitted 48 hours, and it shouldn’t be “accepted” by lawyers as being a sufficient excuse. They arrest ’em 7 days a week? Then arraign ’em 7 days a week.

          1. Fubar

            I’m certainly not going to raise a sweat to find an argument or cases against shorter times to arraignment, since I’m in favor of both your and RH’s position. I was just noting what I observed to be some local practice.

            And, considering RH’s point, I also find the practice very curious. There appears to be a dog not barking in the California night.

  2. pml

    Makes you wonder why NYC takes 24hrs or longer and in every other upstate city or town defendants get arraigned within less than 12 hrs on average and in most towns its a matter of an hour or two.

  3. Brett Middleton

    I just couldn’t help thinking about what a great commercial NYC could make out of Rayvone Gibson’s testimonial to the system. Thanks, Dan!

  4. AlphaCentauri

    We can’t afford the resources to get people arraigned or brought to trial faster, but we’ve always got money to build more jail cells to hold them in.

  5. Pingback: The Suspicion Tax | RHDefense: The Law Office of Rick Horowitz

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