Tuesday Talk*: Trial Or Not

Turk sent me over a warm and fuzzy note from New York State’s chief judge, Janet DiFiore, reminding lawyers that as bad as things are due to COVID, the courts still love us. Aww. Buried in Judge DiFiore’s message was a very curious tale about the first jury trial in Queens since the pandemic struck.

And if anyone had any doubt as to the critical importance of restoring functioning grand juries or petit juries, I would highlight the circumstances of the criminal jury trial concluded last week in Queens County. The defendant in that case was arrested in July 2018, more than two years ago. He has been held in custody since then, charged with two counts of burglary in the second degree, and criminal trespass as a misdemeanor. The case was scheduled to go to trial in March, but the arrival of the pandemic and the statewide stay-at-home order halted jury selection and led to a mistrial.

You caught that little detail buried in there, that the defendant has been held in custody for more than two years? No doubt Judge DiFiore included it to show the urgency with which the courts need to find a way to try cases, although it apparently eluded her that between the release and the suspension of New York’s speedy trial law, CPL § 30.30, trials are hardly the only solution to the conundrum the law has to offer.

Fast forward 8 months later and the trial finally went forward as part of our citywide jury trial pilot earlier this month. And despite the criticism and skepticism of many practitioners, the two-week trial was completed safely and successfully. The jury acquitted the defendant of all felony charges but convicted him of the misdemeanor charge. As a result, the defendant was freed by the judge — after having spent more than two years in jail for committing a crime that carries a maximum sentence of one year.

Granted, the outcome of acquittal on the felonies with conviction for a misdemeanor can’t necessarily be foretold, or else there would be no reason to hold trials, but then those eight months didn’t “fast forward” for the defendant, who does not get his next misdemeanor free for having already served twice the maximum sentence for the only offense for which he was convicted.

Nor does the outcome of acquittal on the felonies demonstrate that the pilot program was successful. It could just as well be great lawyering by the defense, terrible lawyering by the prosecution, a bad case or mere kismet. That the defendant wasn’t convicted of everything doesn’t mean the changes adopted to accommodate COVID-19, do not impair the functioning of a jury trial.

Unfortunately, the case I just described is not unique. There are other defendants who are being held in jail while they await the opportunity to have their guilt or innocence determined by a jury of their peers. The right to a trial by jury is one of the most fundamental rights enshrined in our constitution, and it is one that we — and I mean every single player in our criminal justice system — have a solemn responsibility to uphold, notwithstanding the challenges of the pandemic.

Much as one would expect the state’s chief judge to be aware of the fact that juries don’t determine innocence, and that these “other defendants” detained are presumed innocent, what’s a court system to do (other than, you know, either afford them their constitutional rights or cut them loose)?

Judge DiFiore goes on to thank the players, from defense lawyer to prosecutor, judge to courtroom staff.

And finally, we thank Administrative Judge Joseph Zayas, Judge Ira Margulis and the court’s professional staff for their efforts in implementing a broad range of safety measures and protocols, including plexiglass partitions in the courtroom and social distancing of jurors; and for making innovative use at trial of smart phone and video technology to ensure safe attorney-client communications and enable jurors to observe the facial expressions of witnesses called to testify.

The witnesses weren’t in the courtroom? They were on video to “enable jurors to observe the facial expressions,” while sitting in the comfort of . . . somewhere else, and not the imposing courtroom, not with the eyes of the defendant burning through their testimony, not with the socially distanced and plexi-protected jurors seeing the beads of sweat collect on their furrowed brow?

Is this good enough? Is this the proper trade-off between personal safety and a presumptively innocent defendant sitting in COVID-ridden Rikers for a “fast” eight extra months, or two years total?

Stories like this are why we have every reason to feel positive and optimistic about the future. There are so many people who never stop doing their level best to see that justice is done . . ..

Does this story make you feel all warm and fuzzy about the future of the court system, or at least its present in light of having to accommodate the realities of the pandemic? Is this good, good enough or an abdication of adherence to law and constitutional rights? While the outcome this time blunts some of the criticism, and speaks well of the defense lawyer, Michael Anastasiou, it could just as easily have resulted in conviction on all counts. What then?

*Tuesday Talk rules apply.

14 thoughts on “Tuesday Talk*: Trial Or Not

  1. Skink

    It isn’t good enough for this trial lawyer. The courts, all of them, would be smart to only try a few and see what the appellate courts say about the application of the 6th and 7th Amendments and the state counterparts. But first:

    Dear Chief Judge:
    It’s awesome this case was tried only eight months after it mistried because of the virus. In “these trying and difficult times,” it’s good to know the courts are functioning.

    When you get some time, can we talk about the first 20 months this guy sat in jail?

    Skink, issued from the Swamp

  2. Rengit

    How could anyone think video feeds, so that the jurors can “observe the facial expressions”, are good enough when we’ve all had to spend the past 8 months sitting through awkward, dead-eyed, expressionless Zoom calls, whether for work or to catch up with friends and family?

    1. SHG Post author

      But what do you do when your only alternative is to let your client languish in jail because the judge (whether trial or on writ) won’t cut him loose? Bad trial or a few years of waiting?

      1. Rengit

        It’s a tough call; given that defendants almost always aren’t on the stand, I’d judge that an extra half-year or year in jail is worth it in the long term if cross-examination of witnesses for the prosecution, especially if there’s a victim testifying, will be less effective because the jurors are less well-equipped to judge the sincerity and emotion of such witnesses because they’re testifying by video. Then your client can end up in prison and for much longer than a year. The calculation would definitely vary case by case, though, and the clients themselves may have shorter time preferences.

        1. SHG Post author

          There’s a dynamic to a trial. How well it can be done, translates and isn’t altered, by video remains a mystery. Defendants typically want out as quickly as possible, and with good reason, but it’s hard to advise when we have no answers as to what we’re giving away for a quicker trial.

  3. Pedantic Grammar Police

    I’m just a stupid non-lawyer. I can’t find the clause in the constitution where it says that a bad case of the sniffles overrides the rights outlined there. I wish Judge Janet would point it out for me.

    According to Judge Janet, everything is fine. “Stories like this are why we have every reason to feel positive and optimistic about the future. ” Tell us more Judge Janet! What dystopian future is it that you feel so optimistic about? Pre-crime? Preventive detention? Forced vaccination?

    Some animals are more equal than others.

    1. SHG Post author

      There were quite a few unduly passionate voices screaming that the Supreme Court’s decision last week was about valuing the icky enumerated constitutional free exercise right over public safety. Don’t you care about public safety?

  4. Scott Jacobs

    There are other defendants who are being held in jail while they await the opportunity to have their guilt or innocence determined by a jury of their peers.

    Huh. That’s odd. I don’t see anywhere where Her Honor admits that the defendants are there solely because a judge made a decision that keeps them there.

    I’m sure it was just an oversight.

    1. SHG Post author

      That did appear to be a bit of a hole she failed to grasp, but she’s only a former district attorney (from Judge Jeanine’s old chair) who the very woke Governor Cuomo appointed the state’s chief judge.

  5. Jay

    It’s funny- we out here in the flyover states think we have it bad, but then NY and MA and CA are all up to the same shenanigans. Our federal courts are trying cases using safeguards- they link up with the orders issued by the governor in terms of what is and isn’t permissible. Our state courts set up their own procedures, using videos for most court and no trials till the COVID numbers drop. But our governor permits 50 people in a room at a time. And, like NY, our court has frozen statutory speedy trial. In the process of litigating all these issues, a lawyer in my office discovered that in medieval London the 6 month speedy trial was adopted because every six months the jails were to be emptied and cleaned (disease tending to fester in those old jails). How ironic that it is a disease that is now throttling a rule adopted because of the threat of disease. What a world. For what it’s worth, I have gotten used to cross via zoom and have been able to use it effectively. The few studies on the matter show that whoever is testifying via video will be seen as less credible by an audience. All the same- I’m not going to give video witnesses the thumbs up. The Diocese v. Cuomo decision would not need a lot of tweaking to require courts to offer citizens the same rights in courtrooms they get at the supermarket.

Comments are closed.