A Baby Step Forward In The Bronx (And Two Giant Steps Back)

A very pissed off public defender (not deputy, not assistant, but the big guy) asked yesterday whether the New York Times was as bad as it appeared to him. In his case, it was the omission of an entire branch of a story in order to extol the virtues of another branch, as if taking one little step, a part of the whole, was sufficient to solve a huge problem.

Yup. That’s my buddies at the Times. They have a narrative, and they’re not afraid to use it. In this instance, it was bad progressive problem (wrongfully convicted defendants), preferred hero (prosecutors) and simplistic piece of response as the miracle the fixed everything. They love the opportunity to extol the virtues of prosecutors, to virtue signal that they aren’t prosecution haters. They love to pretend solutions happen, because it’s heartwarming that our problems aren’t intractable and can be solved. Put the two together, shake, sing a rousing chorus of Kumbaya, and you have a great story.

Darcel Clark is the new Bronx District Attorney. She’s black. She’s female. The Times adores her demographic, and so there’s a story about how she’s going to save the Bronx from the perpetual disaster of delays, like the one that happened to Kalief Browder and tens of thousands of others. What’s the magic bullet?

When Darcel D. Clark was a judge in the Bronx, she used to see criminal cases in her courtroom delayed for weeks, even months, as they were handed from one prosecutor to another.

At a minimum, every case would pass through the hands of three prosecutors, each of whom oversaw a different step in the legal process, from writing the initial complaint to going to trial. If a prosecutor changed jobs, yet another person would have to scramble to become familiar with the case.

“I saw the way the delays were built in,” Ms. Clark said. “How many times did I hear, ‘Oh judge, I need another two or three weeks.’”

There are a couple details missing from this glowing narrative. Before Darcel was a judge, she was an assistant district attorney in the Bronx. It’s not that she saw it in her courtroom. She did it. Herself. To try to color this as a judicial epiphany is a steaming pile of crap.

As for the, “I need another two or three weeks,” that’s total nonsense. No ADA asks for two or three weeks. They ask for two or three days, knowing that the case will be adjourned for a month or two because that’s the next opening on the calendar. So they get charged with a 3 day adjournment request under CPL 30.30, the New York speedy trial statute, and get the next month or two free.

And then there’s the unmentioned bit, the part Darcel left out and, apparently, Winnie Hu, the writer, either didn’t grasp or buried. So the ADA asked for an adjournment?  And you, Judge Darcel,* did what? Said no? Called bullshit?  Marked the case as no further adjournments? Released the defendant who was stuck on the Rock for the inability to make $500 bail? Or gave the ADA whatever they asked for, every time, without question, without challenge, while the defendant was spending his third year on Rikers awaiting disposition?

Ms. Clark, now the Bronx district attorney, intends to reduce those delays by adopting a new system of handling all cases starting this month. The system — known as “vertical prosecutions” — will assign every incoming case to a single prosecutor who will be responsible from beginning to end. Ms. Clark said the system would allow prosecutors to get to know their cases better and to take ownership of them. It would also foster closer relationships with victims and their families, she added.

Cases coming into the system were first written up by an assistant in ECAB, the Early Case Assessment Bureau. This was supposed to be a great reform when it was implemented, putting a prosecutor in the mix from the outset, so bad busts could be tossed right away rather than months later. Or on the eve of trial. Or never. It wasn’t a great assignment, as cases came in 24/7 and meant somebody had to staff the phone, do the write-up, make the bail recommendation. But at least it was better than leaving it to the cops to do, who could chuckle at the idea that they just taught that mutt a lesson for mouthing off to a cop by extending the ride, if not the rap.

So that’s gone now? Will the ECAB assistant now “own” every case that comes in during her shift? That’s gonna make a mess of things, if the cases can’t be reassigned and spread out among available prosecutors. On a bad night, one ADA pulls 50 new cases. On a good night, one ADA pulls 10? What could possibly go wrong?

The concept of vertical prosecution seems, on its face, not to be a terrible idea. If a prosecutor takes ownership of a case, she learns it sooner, makes decisions sooner, reaches dispositions sooner. The incentive is to clear one’s desk by disposing of cases quickly. Of course, clear one case and you get another to take its place, but hey, whatever.

Except this is a palliative measure, the sort of trivial change that obscures serious problems, makes clueless reformers feel warm and fuzzy, and leaves the broken system just as broken as before. Notice that Darcel didn’t mention her assistants were gong to stop gaming CPL 30.30?

But at least it’s a step forward, even if a small step?

To put the system in place, Ms. Clark’s office will hire an additional 45 assistant district attorneys and two dozen new legal assistants in the next year at a cost of $3.8 million. The money used for the vertical prosecutions is the biggest part of an additional $11.5 million that the Bronx district attorney’s office received in the New York City budget.

And that money won’t go to more public defenders, more judges (and more judges with the guts to say “no” once in a while) and more court personnel to fill the empty courtrooms in that despised shiny new courthouse that doesn’t work.**

“It’s like CompStat,” Ms. Clark said. “It’s ‘TrialStat,’ and you have to answer.”

Because CompStat worked out so well. Guess we can pat ourselves on the back now. Problem solved.

*After Darcel was handed the judge gig, I had occasion to have a case in her courtroom. She was never there when my case was in her Part. She was always sick. Maybe she was just a sickly person. Maybe she didn’t want to hear the word “judge” come out of my mouth. But I never got the chance to look Darcel in the eyes and utter the word judge to her face. If said just right, even the word “judge” can sound like an epithet.

**For you legal tech lovers, don’t rely on your cloud-based presentation to the jury (if you can get a jury), as you can get online a little less than half the time. Courthouses are designed to be impressive, not for good internet connections. You’ve been warned.

12 thoughts on “A Baby Step Forward In The Bronx (And Two Giant Steps Back)

  1. Marc Whipple

    “Ms. Clark’s office will hire an additional 45 assistant district attorneys and two dozen new legal assistants in the next year at a cost of $3.8 million.”

    Let’s assume LA get paid half of what ADA do. That adds up to 57 new ADA-payroll-equivalents. 3.8 million divided by 48 is… About 67k. Is that a reasonable salary for a lawyer in NYC? I have no idea but on instinct it sounds awfully low. And that assumes that every penny of the 3.8 million goes right into salaries, which also seems… Optimistic. Or am I being too cynical?

    1. SHG Post author

      Amazingly, you saw through everything in the post to realize that it was all about starting salaries for NY lawyers.

      1. Marc Whipple

        My point was that she says changing the way cases are docketed and throwing more lawyers at the system will fix it. Obviously those are not the only or most important problems. And, specifically, she’s not even throwing enough money at the system to fix it. Not only will it not do what it should, it won’t even do what she thinks it will do.

        1. SHG Post author

          Yes, I got where you were going, and your point is not merely trivial, but wrong. New ADAs don’t get paid a lot, and they still have tons of applicants for the job.

  2. Nathan

    I don’t see how making the ECAB ADA keep her cases is a bad thing at all. On the contrary, I think it’s great. That’s how we always did it in my ADA days, at least for felonies. Knowing that you’d have to try this P.O.S. yourself made it a lot easier to reject a case up front. There was an incentive to be a little more attuned to “can I prove it” rather than “did he do it.”

    I can’t count the times I had recite to an irate cop the mantra “look, you know he did it; I know he did it; but I can’t prove it. We’ll get him next time.” Just let their anger wash over me and move on to the next case. (I never got their anger. These were usually victimless drug cases, they’d suffer no repercussions for my decision, and they already made their overtime for the collar. The only downside might have been if they’d timed the arrest so the 180.80 day would be their RDO, and now they were missing out on that sweet sweet 8 hours of overtime for 15 minutes in the grand jury. But I digress.)

    1. SHG Post author

      There’s nothing wrong with it, per se, provided the numbers work. But just because you did it doesn’t mean everyone will do it. Check your inductive reasoning privilege.

      1. Nathan

        It’s not like I was wiser than the next guy. Far from it. It’s how we were trained to do it from day one. A good office culture can lead even a mediocre assistant to do the right thing, while a crap culture leads good assistants to do awful things. As with everything, this comes from the top.

        I’m reserving judgment on what’s going to be coming from the top in the Bronx. Ever the p̶o̶l̶l̶y̶a̶n̶n̶a̶ optimist, I’m hoping to be pleasantly surprised.

        1. SHG Post author

          Well, irrational exuberance optimism is important because it makes everyone feel good. It’s not like people will languish on the Rock for years if this doesn’t cure the problem while eating up funding and diverting attention from critical changes, like 30.30.

          Three years from now, when the Bronx is still a cesspool of delay, you can always say sorry that it didn’t work out as well as you hoped, even though you added your voice to the problem. I’m sure the defendants won’t mind your optimism. After all, it’s only fair they accept a little suffering for the chance that this might help enough to overcome the vast systemic problems that remain ignored.

          1. Nathan

            And having an assistant who has no further ties to the case, who has nothing to lose by writing up a piece of shit case, whose life is made so much easier by just going along with whatever the cop says… how is that the preferable option?

            Regardless of the office culture, I think having to try what you write up makes for better assessment on day one, and fewer bad cases.

            Does it solve the awful 30.30 outrages? Not remotely. Why she thinks it’ll have any effect whatsoever on the delays is beyond me. But it still is a good thing, that can improve unrelated but still awful aspects of the system.

            1. SHG Post author

              I didn’t say it was inherently a bad thing. I said it was inadequate, expensive and diverted attention from the systemic problems.

  3. Jonathan

    The incentive to game the system is so powerful for prosecutors. Maybe if they actually wanted to do justice rather than just to win this would help. For new prosecutors making their bones the leverage they have against a defendant who can’t make bail has to be too sweet to pass up.

    1. SHG Post author

      One would like to believe otherwise. One would also like to believe in the tooth fairy. Former prosecutors will tell you they were better than this. Not too many admit they had their head up their ass, even a little bit.

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