The story would sound absurd, and, indeed, does, if you read it without understanding how and why it happens. But if you understood the problem, it’s not nearly as crazy as it seems. Queens City Councilman Rory Lancman plans to introduce a bill to require a notification system when a person is held on $1 bail.
City Councilman Rory Lancman, who heads the Committee on the Justice System, plans to introduce a bill Wednesday to amend the city administrative code to require a notification system. “I don’t believe someone should be held on $500 bail, let alone $1,” he said.
A perfectly normal, if uninformed, reaction is, “that’s crazy; why would any judge set $1 bail?” The answer is pretty simple, really. It’s for the benefit of the defendant who has more than one charge. When bail is set for a more serious charge, but the defendant also has separate charges, by setting $1 bail, he gets jail time credit for the time he spends in custody for each case. If not, the defendant is technically viewed as “free” on one case while in custody on another, and gets no credit for the case on which no bail is set. Hence, $1, just so the jail time inures to his benefit.
And it’s not as if this happens in secret. Bail is set in open court, where both the defendant and defense counsel are there to hear. This is New York City, and every defendant has a lawyer standing next to him.
But the fact that the words were uttered before him in open court doesn’t mean the defendant gets it. There are a variety of reasons, from language problems to mental illness, forgetfulness to, well, stupidity, that present problems. It’s hardly unusual for a defendant to leave the well asking, “what just happened?” It’s fast. It’s replete with jargon and numbers. It’s confusing. That’s where the lawyer comes in.
And that’s why Lancman is introducing a bill.
He could have been free for the cost of a cup of coffee.
A Queens man spent nearly five months at Rikers Island — from November 2014 to April 2015 — without knowing his bail was just $2, according to records and his lawyers.
There were, apparently, two separate cases where $1 bail was fixed.
Aitabdel Salem, 41, who was acquitted of bail jumping at a Manhattan Supreme Court trial last week, had been jailed on $25,000 bail for attacking an NYPD cop who was arresting him for stealing a coat at a Zara store in the Flatiron District on Nov. 21, 2014, court papers show.
Although Salem didn’t know it for more than four months, he caught a lucky break when prosecutors could not get an indictment. He was ordered released on Nov. 28, 2014 on the police assault arrest.
But he still had dollar bails set on each of two minor offenses — that included tampering and mischief charges — so he could not have been freed without first paying the tiny amount.
A bell should go off here. Under CPL 180.80, the prosecution had 144 hours to indict or they had to cut him loose. When he was ordered released, he had a lawyer standing next to him*, and that lawyer should have known about the two other cases with $1 bail. This isn’t magic.** Yet, instead of walking his client out of the courtroom, he watched as his client was led back to the pens.
Salem blames his previous attorney — veteran Legal Aid Society defender Stephen Pokart — for failing to inform him about the change in his bail status. Pokart testified for the Manhattan DA’s office at Salem’s bail jumping case last week, where Salem’s new lawyers said it was Pokart’s fault Salem missed the court date that was the basis for the charge.
Not only did Salem sit for almost five months on $2 bail because he didn’t know any better, but the same lawyer who was supposed to represent him testified against him to swear that he tried to tell his client when to return to court.
Glenn Hardy and Theodore Goldbergh, Salem’s new attorneys, argued that their client could not be to blame for something he didn’t know. A letter with the new date to the address it had on record for Salem was stamped “Returned to Sender” by the post office.
“You can’t do what you don’t know and if you’re a defendant in a criminal case you certainly have a right to rely upon the system what your next court date is,” Goldbergh argued in his summation.
Is there an epidemic of defendants being held on $1 bail, such that there needs to be a new law, a new system, created to prevent this travesty from occurring? Hardly, although one sad story is pretty much all that’s needed for tears to swell up and someone to introduce a systemic change to fix a very basic, very different, problem.
Salem didn’t sit in jail on $1 bail for lack of a notification system. He sat there because his Legal Aid Lawyer screwed up. There is a stop-gap in the system already, attorney diligence, to cover the gaps that produce these ridiculous errors that shouldn’t happen. It was Pokart’s job, LAS’s job, to be diligent with their client’s life. They failed. So Rory Lancman wants to pass a notification law.
And there’s a little piece unmentioned in this scenario, that during the nearly five months in jail, Salem had to be making court appearances, usually once every month or two. You would think someone noticed that he was held on $2 bail. If not the judge, then his lawyer. Being a public defender involves more than twitting about how amazing and woke you are and blaming the system when the failure was closer to home.
*It’s likely that the defendant was ordered released without his having been present in court, if his lawyer waived his appearance. When the prison bus is delayed, this happens so the lawyer doesn’t have to wait all day for the defendant to arrive. If so, the defendant would have no clue what happened in court and has to rely on his lawyer to inform him.
**The Daily News reporter, Shayna Jacobs, explains it thus:
Judges sometimes set a dollar bail on a defendant’s subsequent charges if they believe the person’s existing bail is sufficient or if the defendant is ineligible for release for another reason, like an immigration hold.
Law is hard.