The Right (not) To Be Present

My pal and artistic muse, former Bronx Defender cum television maven David Feige, has an op-ed in the New York Times that's, well, quite brilliant.  Brilliant not just because he's right, but because of the sheer simplicity of the idea. which could so fundamentally alter the dynamic of the criminal justice system to make it almost palatable.

Every year in New York City, more than a quarter of a million people are arrested and charged with misdemeanor offenses. The vast majority of those who don’t plead guilty right away are released without bail and ordered to return to court to fight their cases until they are concluded. But as William Glaberson reported in The New York Times on Wednesday, that can take a very long time.

Reducing the vast number of people charged with relatively minor offenses would go a long way toward easing this immense burden. But even without a shift in policing strategy, there’s one straightforward fix we can make: treat criminal cases more like civil cases by excusing defendants from appearing in court until the prosecution is actually ready to try them.

The concept behind a criminal defendant being required to appear in court for every appearance, most of which consist of 90 seconds of face time before the judge after a couple hours of sitting on wooden benches ultimately resulting in an adjournment to another date, had a twofold genesis.  The first was to make certain that defendants were still around and hadn't absconded after they were released. The second was to make living through the prosecution inconvenient and unpleasant, the "ride" versus the "rap."

It's not that things don't happen in court, and that the defendants shouldn't be there to see, but that the burden of appearing monthly, sometimes more, in cases that drag on for more than a year, even two, is a killer.

This happens even when prosecutors have advised the court in advance that they are not ready to proceed. The appearance requirement — which can cost a person weeks of lost paychecks and hours spent arranging child care — rapidly becomes onerous. As a result, more than 99 percent of those who initially want to fight the charges are worn down by the legal equivalent of “Waiting for Godot,” and eventually agree to plea bargains to end their cases. The same is true for misdemeanor cases in many other major American cities: the process has become the punishment.

When Feige writes of prosecutors advising the court in advance of unreadiness, that's not the norm.  The usual sequence is show-up, sit and wait for the case to be called, calendar assistant has a note that something along the lines of "People not ready," because a cop has an RDO (regular day off, which is the predominant driving force in the scheduling of trials! Nothing, no court, no prosecutor and certainly no defense lawyer, interferes with an RDO), but they will be ready in two days.

So a choice is presented. Come back in two days, where the process will be repeated with another excuse, another representation of future readiness in a day or two, rinse, repeat.  But the defendant's boss won't hold his job for him this way, and somebody has to care for the babies, and it's all a complete waste of time anyway because after returning every two days for a week or two, either the prosecution will come up with a lengthier excuse, "the assigned ADA is starting a trial (note the word "starting," which is a euphemism) and won't be available for three weeks," at which point the case is adjourned for a month.  And it all starts over. The boss isn't pleased.  The baby sitter isn't available.  The defendant can't stand the stress.

And this is true for the innocent and guilty alike.

So why not make criminal justice more civil? At least for nonessential proceedings, misdemeanor defendants who would prefer to let their lawyers do the work should be excused from having to appear in court. Or to frame it another way, courts should require a defendant to be present only when something substantive — like a negotiated disposition, hearing or trial — is really going to happen.

The problem is that one never quite knows when something substantive is "really going to happen."  Of course, that could easily be fixed with some basic communication, like the prosecutor informing the defense in advance of the appearance whether they're ready to do something. But that's would burden the prosecution in two ways: first, they would have to think rather than shoot from the hip the morning the case was on the calendar.

Second, this would make it a lot harder to lie about their status, which is rampant now and which judges allow without the slightest concern.  The prosecution is almost always "ready" to stop the speedy trial clock from running when they're confident the defense isn't or can't be (such as prior to motions), but rarely ready when the defense is. Amazing how that happens, and it plays out before a judge who closes his eyes and ears really hard as if there was an iota of truth to the game.

So couldn't judges just, you know, excuse defendants from appearing unnecessarily, require the prosecution to inform the defense when they are ready to move forward on a substantive issue and return reason to the system? Well, of course they could.

Judges already have the power to excuse defendants but they nearly always refuse to use it. A recent study by the Bronx Defenders, which provides free legal representation to poor people, found that vanishingly few judges would even entertain a motion to excuse a defendant — and among those few who did, even fewer ever granted such a request.

Among the many dirty little secrets of the judiciary is that they are turned into closet bureaucrats, forced by their internal administration not to take any actions that might embarrass the club like excusing defendant who might later fail to appear when needed, raising the stats on absconders and reflecting a judiciary who can't control their litigants, who then go out and rape, steal and murder. 

And so judges are very reluctant to take any chances with defendants not being under their critical auspices (as if that changes anything).  In practical terms, that means it's easier for the judges to require every defendant to appear for every pointless calendar call at the defendants' expense to make the judge's life easier and grease the wheels of the system.

Feige calls for a legislative shift to allow this to happen. It makes enormous sense and would be a huge benefit to defendants, those "presumed innocent" people who suffer the indignities of a system designed for everyone's benefit but theirs.  Which pretty much means it doesn't stand a chance. But it is brilliant.

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Source: http://blog.simplejustice.us/2013/05/02/the-right-not-to-be-present.aspx?ref=rss

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