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.