Fast And Furious Is No Way To Run A Courthouse

When the New Yorker published the travesty of Kalief Browder, an innocent youth lost to a system that couldn’t have cared less about him, it made an impact on those whose job it’s supposed to be to prevent this from happening.  And after wringing their hands, they put together a scheme to make a rusty, broken machine run again.

The justice system plan announced this week by Mr. de Blasio and Judge Lippmann calls for judges to prioritize the cases of the 1,500 or so people who have been held for more than a year without being convicted. The goal is to resolve half of those cases within six months. Cases that cannot be disposed of by plea bargain will be assigned a fixed trial date.

Well, baby steps at least.  That there are 1500 people in custody for more than a year who are innocent is a problem, though not as much as it would be if they had been detained for three years, like Browder.  And they are innocent, because under our jurisprudence, everyone is innocent until they have been convicted.

And that number doesn’t touch those who are out on bail or their own recognizance, but laboring under the threat of conviction and imprisonment.  Think about applying for a new job with a monthly court appearance hanging over your head, not to mention trial should the day ever finally come, and, worse still, incarceration afterward.  Unsurprisingly, many employers are less than sympathetic to such circumstances. But I digress.

For this to work, corrections officials need to get inmates to court at the appointed time and police officers need to show up in court on time. Instead of seeking adjournments and delays, defense attorneys and prosecutors must be prepared and ready to proceed.

Judges who now permit too many unjustified adjournments will need to change the way they run their courtrooms.

Perhaps this is what the system looks like to a grocery clerk, but this comes out of the editorial board’s pen, via explanation by New York City’s mayor and New York State’s chief judge.  Perhaps this makes perfect sense to anyone utterly unfamiliar with the system’s logjams and scams, the lies offered daily with a straight face and the constitutional violations that no one gives a damn about.  At least, no one with any juice to do something about it.

Where’s the part of the plan where prosecutors are required to provide meaningful discovery on time, and be held to whatever they provide rather than the usual last minute dump of all the discovery they forgot about for the intervening years?  Including Brady material.

Where’s the part of the plan where judges tell prosecutors to stick it up their butts when they announce readiness for trial on the day of arraignment on the indictment, to game CPL §30.30 and shift the burden to the defense?  They say they’re ready?  Great. Tell them to call their first witness, and when they can’t (because it’s a lie), hold them in contempt for having lied to the Court.

Where’s the part of the plan where judges refuse to set bail on defendants who are so poor that they can’t possibly make it, and have nowhere to go? Or lose their job. Or lose their apartment. Or lose their children. And whose lives are destroyed not by conviction but by the cavalier treatment of judges and prosecutors who seem incapable of grasping all the damage done at the first appearance to people whose lives hang by a thread?

Where’s the part of the plan where judges realize that defense lawyers can’t survive on one case alone, so that they’re subject to the demands of a dozen judges, each of whom thinks he can demand their time be squandered showing up for pointless appearances.  And what of the other judges who similarly order that she appear before him, in another case, another building, another county, utterly disinterested in the fact that there are other cases, other judges, making the same demands and similarly careless of the fact that she can’t be in ten places at the same time.

And to get brutally real, where’s the part of the plan that stops criminal defense lawyers from taking cut-rate fees in anticipation of selling their clients out at the first opportunity rather than doing the hard work of actually defending them?  This notion of greasing the wheels of justice, as if speed was the only issue, facilitates the worst of the defense bar, the coercion of guilty pleas from the innocent or overcharged just to be done with it.

The list goes on and on, because the system is insufferably complicated and callous.  The problems are deep and systemic, and yet the people in charge announce band-aids as if that will not create yet another level of failure and unintended consequences.  Then they pat themselves on the back for a job well done.

It’s obviously true that the system takes far too long to resolve criminal prosecutions, denying the constitutional and statutory mandate of a speedy trial.  Justice delayed is justice denied, right?  But the solution to delay isn’t fast and furious, no matter how many sequels they make.

For decades, calls for change in criminal procedure have been made and ignored, tabled mostly because of entrenched positions by prosecutors who really don’t see why the warehousing of innocents is a problem in the first place.  Despite public speeches, they have no burning desire to see the system work better, faster, fairer.

And so the wreck of a system continues to grind unabated.  Now the mayor and chief judge want it to grind faster.  If only they also wanted it to grind better.

20 thoughts on “Fast And Furious Is No Way To Run A Courthouse

  1. Jack

    Powerful post.

    As a layman, I really don’t understand how all of these cases aren’t thrown out as a blatant violation Barker v. Wingo. How can any reasonable judge not see through all of these excuses by the prosecutors as complete bs?

    1. SHG Post author

      Rarely does constitutional speedy trial come into play, as adjournments are shoehorned into excusable delays, most of the time on consent which takes them out of speedy trial calculations altogether.

      As to your second question, as to why judges let prosecutors get away with BS excuses, the answer is pretty self-evident.

      1. Jack

        Thanks for the explanation.

        Does this mean there’s no constitutional remedy at all for these 1500 people? Are there any possible due process violations?

        1. SHG Post author

          1. Pretty much.
          2. No. Due process isn’t quite the sink hole into which all things you don’t like fall.

  2. Curtis

    In 1973, the beginning of the War on Drugs, we had up to 300,000 prisoners. Today, it is inching up towards 3,000,000. Maybe the better plan would be to strike all the laws created since 1973.

    1. SHG Post author

      Most of the drug laws were in place in 1973. It’s the energies given toward investigating and prosecuting those laws, and the harshness of the sentences (particularly mandatory minimums) imposed for violating those laws, that have changed.

  3. PaulaMarie Susi

    This is horrifying. I do not claim familiarity with the State system (beyond habeas petitions); but when an indictment is filed (before us, anyway) the parties get one month to figure out what they’re doing. At the next appearance, the govt is presumed to be ready for trial. Tough titties if they’re not. The only adjournments that are granted are for the defense to review discovery/plea negotiations/ motion practice and/or trial prep. That’s it. We’re slightly more forgiving if the deft is out on bail, but not by much. There’s no wholesale issuance of orders of excludable delay – make your record. Unbelievable.

    1. SHG Post author

      I once played that card before Judge Mukasey, announcing on the second appearance that I was ready. He blew a gasket, sputtering that I hadn’t even made motions yet. I told him, “no big deal, you’re gonna grant my hearing, deny suppression and then set it down for trial.”

      He turned to the AUSA, who was convulsing in his chair sputtering something about having suddenly located more Rule 16. The judge found good cause to exclude and adjourned.

        1. Bartleby the Scrivener

          You’re not kidding. This is about as un-funny as it gets.

          I’d love to know why there are no actual penalties for the government when they violate our rights.

  4. John Barleycorn

    Justice Reboot? Well at least they didn’t go with The Justice App.

    I did find it interesting that throughout the schematic language of cooperation and scheduling between the various entities in the criminal justice system the defense bar is always mentioned last in any particular grouping.

    The entire outline had me wondering, what does it mean to be a judge in NYC?

    I not buying “we inherited the surreal soup so we figured we would just play along and sip it”.

    Don’t worry Billy from accounting and Jane from strategic planing have come up with a PowerPoint presentation to figure our our “jail use” problem.

    Everything will be just fine…

    1. Wrongway

      “The Justice App.. Brought to you from your friends @ Homeland Security..

      Don’t worry, you don’t have to enter your info, we already have it..

      You’ve been found guilty for Our Convenience..

      When you hear the loud speaker, Please answer the door with your hands up..

      Thank You for your cooperation..”

  5. Peter Gerdes

    So I’ve been wondering whether this situation is something that happens only to defendants without sufficient resources or whether it is screwing everyone equally.

    What I mean is if these individuals were being represented by quality lawyers with the time to file motions would they succeed in forcing a trial (or at least the defendant’s release) or get the charges dropped?

    1. SHG Post author

      For the most part, these are poor defendant problems. Good lawyers generally do not allow this to happen. The delineation isn’t quite so simple, but generally, yes, it is a function of money.

      1. Bartleby the Scrivener

        That is absolutely disgusting. I wonder what Abe Fortas would’ve thought of this. I thought part of the whole Gideon v. Wainwright thing was that must also be effective, and it seems to me that this reflects a lack of efficacy.

        Please note: I don’t blame the attorneys in question. I blame our system. I suspect they only have a mere four or five times as many cases as they should and maybe 1/10 the time to spend with their clients that they should.


        1. SHG Post author

          The system is primarily to blame, but don’t forgive the lawyers too swiftly. As lawyers have become less professionals and more businesspeople, zealousness is counted in dollars. On the other hand, given that lawyers can’t sustain a decent middle class living anymore, why should they bother going to law school and becoming lawyers?

          1. Bartleby the Scrivener

            I was told about 10 years ago that a PD in Indianapolis was making about $33K a year for their work. Even assuming pay increases since then, it’s not even close to enough.

  6. John Neff

    1,500 in NYC were held a year or longer before trial appears to be about three times the rate for my little county. I wonder what the number would be nation wide.

  7. bacchys

    “Judges who now permit too many unjustified adjournments will need to change the way they run their courtrooms.”

    They don’t “need” to do any such thing. “Need” implies there is a reason *personally* for them to do so. It seems most of ’em are able to live with the status quo.

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