Every wonder what makes the fad of “drug courts” really special? Via the New York Law Journal, the Westchester County Town of Greenburgh offers a glimpse, prompting the state Office of Court Administration to remove all cases before the court.

The shift in cases occurred after Peter H. Tilem of Tilem & Campbell in White Plains complained of the town drug court’s practices in which the judges apparently presided over the same matters simultaneously and in which a “team” was allowed to vote on such issues as whether an attorney admitted in New York State could practice in the Greenburgh drug court, and whether a defendant should be released on bail.

Bet you didn’t know about the “team” approach to criminal law.  Bet you didn’t know that the “team” had to give you the old “okey-dokey” before you could represent a defendant before the team. And bet there’s more you didn’t know. 

Brooke Ahern pleaded to a petit larceny and was diverted to drug court. She warranted, but returned on her own, only to be remanded without a hearing. So she got a lawyer.  Smart move in most courts. In Greenburgh, however, representation by counsel isn’t necessarily appreciated.

Several days later, Ms. Ahern appeared with Mr. Tilem in Greenburgh drug court, where Justices Forster and Friedman were presiding simultaneously, with one on the bench and the other in the jury box, according to court records.

Mr. Tilem said in an affirmation, supported by a verified petition from his client, that he was told by Justice Forster that he was not admitted to practice in the Greenburgh drug court and the matter was adjourned for nearly a month while Ms. Ahern was in jail. Ultimately, a “team” that included the judges and two attorneys, Bernard Bacharach, the primary drug court attorney, and Alan J. Tomaselli, the alternate drug court attorney, voted to permit Mr. Tilem to represent his client, according to court records.

The records show that without a hearing, the team, along with Mr. Tilem, deadlocked 3-3 on whether Ms. Ahern should be immediately sentenced to a year in jail. Mr. Tilem said he voted against putting his client in jail, resulting in a 3-3 tie.

However, he said he was then asked to leave the room, and when he returned learned that his client was to be sentenced immediately.

“Presumably, with me out of the courtroom the vote was 3-2,” Mr. Tilem said in his affirmation.

My apologies to John Caher for such a lengthy quote, but the background (combined with his good writing) calls for the details.  Does any of this strike any lawyer as even remotely familiar?  Isn’t this how courts typically function, send the lawyer out of the room (assuming the team has deigned to allow him in at all) and then vote to send the defendant to jail?

On what planet does this happen?  Is everybody in this court on drugs?

The only conceivable rationale comes from the nature of drug courts, an invention intended to help criminal defendants overcome drug dependency and deal with their criminal conduct as more (not entirely, but more) as a medical problem than a criminal one.  Standing alone, this sounds just hunky-dory.

But it doesn’t stand alone.  It takes a village, or in this case a team, to really screw things up and undermine every constitutional mandate there is.  And this team did exactly that. 

The rationale for the Greenburgh drug court, which isn’t a recognized drug court under the state system but operating under a federal grant, which apparently meant to the judges of the court that they were free to do whatever popped into their mind.

“We as a group vote on everything and we have our procedures and we follow them,” she said. “Our drug court is not part of OCA and we have our own grant and our own rules and there is no court above who supervises us. Nothing happened in this case that was different, other than private counsel came in and made a lot of noise.”

Damn those noisy lawyers, making a big stink about the fact that the court was run like a private fiefdom, where fealty was due a couple of judges in kangaroo suits.  After all, if the court gets federal money, doesn’t that mean they get to create their own rules?  It’s not like the feds, passing out grants, expects anything of them.

That the Office of Court Administration, upon learning that the Greenburgh drug court defied essentially every precept of constitutional procedure familiar to a first year law student, is to their credit.  It’s not so great that it they had no clue that a court functioning in the State of New York utterly ignored law and procedure until “noisy” Peter Tilem spilled the beans.  After all, they were sending recalcitrant defendants to jail, likely prison as well, and yet nobody had the slightest idea how they managed to arrive at these sentences?

Advocates of drug courts will note that not all courts function like this, that most are both highly professional and deeply caring about the welfare of diverted defendants, cleaning them up and returning them to society as law-abiding citizens who have overcome a drug habit. 

Nice as this sounds, and even if its true, it remains a significant problem that defendants whose conduct is guided by drug dependency are almost invariably required to forego basic rights in exchange for the concession of rehabilitation rather than incarceration.  Why?  Why must a defendant give up his constitutional rights in the process before being offered rehab in the end.  If the concern, as it;s claimed to be, of drug courts is to stop the cycle of crime and dependency by treating addicted defendants, to what good end is there in putting them in jail rather than rehab because they asserted their constitutional rights in the process?

But it’s got to be a bargain if you want to get the benefit. To be given rehabilitation rather than incarceration, even if the former is obviously more appropriate than the latter, defendants have to pay with their constitutional rights.  In Greenburgh, the price was way too high.  In other drug courts, the bargain may not be as bad, but it’s still a trade-off of constitutional rights for drug treatment.