The horrific tale of Kalief Browder’s loss of three years of his life to systemic failure is back on the front burner, courtesy of a new article about the case in The New Yorker. It’s not that Browder’s story isn’t already well known, as it was the subject of much castigation and teeth gnashing in stories from December, 2013.
Ah, the Bronx. Where the system died and no one told it.
In 2010, a complete stranger accused Kalief Browder, then just 16 years old, of robbing him. Browder was walking home in the Bronx from a party one night when police officers stopped and arrested him. Browder says officers told him he’d probably be freed later that night. Instead, Browder would go on to spend three birthdays on Rikers.
This past January, Browder was offered a deal: Plead guilty and be sentenced to time served, or plead not guilty, and if convicted, face another 15 years in jail. Browder, who has always maintained his innocence, refused to plead guilty, and in June, charges against him were suddenly dropped.
Lawprof Gerard Magliocca gave the heads up to the new, lengthy article in his post at Concurring Opinions, where he offers that he’s rarely shocked, but this one got to him:
The New York criminal justice system (at least in the City) should be deeply ashamed.
This led him to question what’s become of constitutional speedy trial, since New York statutory speedy trial didn’t serve this teen well.
Nobody would be surprised to learn that trials are much less speedy now than they were in 1791 or 1868. Some of that is unavoidable, but I wonder to what extent this constitutional right is ripe for rediscovery. Consider that this is a right that protects defendants. If the state cannot get its case together in a timely way, then the charges must be dismissed. Moreover, if a state or local criminal justice system is underfunded such that trials cannot happen quickly, then the charges must be dismissed. At least that could be how the Sixth Amendment is applied. My sense, though, is that courts rarely find that a defendant’s speedy trial right is violated.
My sense is that courts rarely give a damn about much of anything other than making sure the wheels keep grinding, but that’s largely based on my having the pleasure of working in the Bronx. Neither Gerard nor Jennifer Gonnerman, the author of The New Yorker article, seem to have full appreciation of just how awful, and how pervasively awful, the situation is.
There is no one involved in Browder’s case undeserving of blame. No one. Not a prosecutor. Not the cops. Not the screws on the Rock. Not any of the judges before whom the case appeared. Not his appointed defense lawyer.
The problem is not the law. The problem is obvious to anyone who has had the joy of practicing in the Bronx and gives a damn. No one, not a soul, lifted a finger to do more than play the routine game. From the initial setting of bail at $10,000, an amount that Browder’s parents couldn’t possibly afford and can’t begin to be justified except in the minds of second-rate baby prosecutors and an arraignment judge pondering where to go to dinner that night, to the waiver of CPL §180.80 for no cognizable reason except that it facilitates the omni-anticipated plea bargain regardless of guilt, to the routine prosecutorial lie that they were ready for trial on the first appearance after indictment.
Judges know this is a lie, yet it’s a lie that makes the system roll. Just as they know it’s a lie when appearance after appearance, prosecutors put in notes that they’re not ready, but only need a week, knowing that the full calendar will push the next date off for 6 weeks.
And defense counsel knows that he can screw with the game, if he’s so inclined. If they claim they will be ready in a week, then he can challenge their lie and demand a trial, over and over, which puts the screws to the game and opens the CPL §30.30 door to challenge. But that means defense counsel has to show up in a week as well. That’s inconvenient. It’s a burden. He has other 18b cases to carry, and can’t be everywhere at once. Something has to give, and for three years, that something was Browder.
Who cares about another warm body in the bowels of Rikers Island? If we assume everyone is guilty, then no sleep is lost if they sit in jail. After all, that’s where they belong anyway, right?
Gerard’s point about constitutional speedy trial being unavailing as currently constituted is certainly true, but would it matter if his lawyer couldn’t be bothered to make a motion? And if he was willing to put in the effort to serve this teen, he had plenty of opportunity. All the motions in the world won’t save someone if they aren’t made.
But there is supposed to be a stop-gap, a neutral magistrate who oversees the games played between the self-important child with far more power over people’s lives than any sane person would allow, and the hungry guy with a hole in his shoes, trying to scurry around to make his next Mercedes payment. At any moment, the judge can cut a defendant loose, force a case to trial, not let the wheels grind blindly and crush the soul of yet another young man in the Bronx.
That would require someone actually taking ownership of their robes, their bench, their duty to do . . . something to not be part of the slow death of the legal system. With so many defendants, marching in and out from the lock-up for their 30 seconds every couple of months, all looking alike with their dark skin and empty eyes, who can spend their precious time giving a shit? Rule and roll, and let god sort it out later.
Someone will suggest that what happened to Kalief Browder was some “perfect storm” of failure, because people love a good cliché. To those who both know and care, this too is a lie. It’s just business as usual in the Bronx. And contrary to Gerard’s supposition, there is no magic bullet, no fix, no change in law, that makes a failed system suddenly work.