Judges: How How I Became “Radicalized” Against The Criminal Justice System (Part Eight))

During my third year of law school, one of my courses was a criminal defense clinic, where I represented misdemeanor defendants in Bronx Criminal Court under a student practice order under the supervision of our professor and an incredible organization called the Bronx Defenders. I am sharing some stories about that time. These stories are based on notes, memoranda, and filings that I saved from that time, as well as my own recollection. Names and other identifying information have been changed to protect the privacy of the people involved. You can read previous posts here, here, here, here, here, here, and here.

We venerate judges. We must call them “Your Honor.” They dress in fancy robes. They literally sit on elevated platforms so that we must look up to them. Judges can hold almost anyone in the courtroom in contempt for nearly any reason. They can order people removed from the courtroom and to be taken into custody.

We tend to think of judges as great legal scholars. (Full disclosure: my father was a judge for nearly 40 years). Of course, some judges are incredibly bright. Many more are turds in robes.

In New York City, all judges are elected. Voting for judges in a big city is a joke. They don’t really campaign and most people have no idea who any of the names on the ballot actually are. Who they are are mostly politically connected lawyers who used to work for the District Attorney’s Office.

One of the peculiarities of the New York City Criminal Courts is that you often have no idea which judge will be presiding over each portion of a defendant’s journey through the system. A defendant will have one judge for the arraignment part. The arraignment part judge will give the defendant a court date. Most likely, a different judge will preside over that appearance hearing. As we learned earlier in this series, defendants may have to come back multiple times before any decisions (even minor procedural matters) are made. A defendant might have a different judge for each of those appearances. None of the judges are familiar with any of the cases. They take a brief look through the case file, listen to the lawyers, and make decisions from the bench. In the year I practiced in the clinic, I wrote multiple motions and I am confident that not a single word was read by a judge or even a law clerk.

Victor was high school student. He was 16 or 17, a junior in high school, and had already been arrested for minor infractions a couple of times. He was a nice kid, but to be honest, he was kind of a knucklehead. Like many boys his age, he liked to screw around. When I met him, he had been arrested for trespassing inside a NYCHA building.

Victor was actually there to buy loosies from guy he knew, but even though that is illegal, Victor was not actually trespassing. Trespassing requires the defendant to occupy and remain in a place that he has no right to be. His friend had told him to come by and buy the smokes. That made Victor an invited guest. In NYCHA buildings however, the practice was to arrest anyone they found in the hallway who didn’t actually reside in the building. It didn’t matter if you were visiting your grandma or buying an automatic weapon: if you didn’t live there, you were getting arrested.

At this time, a little bit of legalese needs to be clarified. When a defendant in New York City is arrested for a misdemeanor, the summary of charges is called an “information.”  One of the things that must happen at arraignment is that the District Attorney must state whether they are “ready” for trial. If the Court rules that the DA is “ready” then the information is converted into a complaint.  The DA has 90 days from a misdemeanor arrest to convert the information into a complaint or the charges can be dismissed under the speedy trial law. One of the requirements to convert an information into a complaint is that the charges must be supported by non-hearsay factual allegations which, if true, would establish every element of the charged offense.

The supporting deposition written by the arresting officer stated that the defendant said that he was there to see his friend in Apt. X, but upon investigation, the officer could not locate anyone who had granted the defendant permission to be inside the building. Courts in New York have long ruled that vague statements such as “upon investigation” that do not detail what the investigation entailed are hearsay and thus not enough to convert the information into a complaint.

I made this argument at arraignment. I expected to be shot down almost immediately, but after I finished, the judge turned to the DA and asked them to respond.  The ADA, not used to being actually questioned by the judge, just stammered for a few moments. Then, the judge ruled that the information was not converted into a complaint and that speedy trial time would begin running! We were ecstatic. The energy in the room changed and we were envisioning the judge finally giving the defense a chance to beat these ridiculous charges. Then I sat in the arraignment part and watched the same judge rule the other way in 5 straight trespassing cases with nearly the exact same facts. He threw us one bone, but he didn’t want to get the reputation of being too friendly with defendants, lest the police and DA’s office not endorse him in his next election.

But still, we won the first round.  It was a big deal. Our first court date was set for a month later. I wrote a motion to dismiss for facial insufficiency. During that month, the DA’s office did absolutely nothing on the case. At the court appearance, the DA stated once again that they were trial ready. I made the same argument as before and noted that the arraignment judge had ruled that the information was not converted into a complaint. Again, the judge ruled in our favor! We were 2 for 2. I asked the judge to set a briefing schedule on our motion to dismiss and that we were ready to file that day. The DA’s office had two weeks to respond. They never did.

At the next court date, the DA asked for a month’s continuance, which was granted.  We were actually happy about that, because the court date would be beyond the 90 days from the date of arrest. I counted the days on the calendar and recounted them. Then, on the 91st day, with no action from the DA’s office whatsoever, I filed a motion to dismiss for speedy trial time. Again the DA never responded.

When we got to the next court date, the clerk called our case. I stepped up to the podium and the DA again pronounced themselves trial ready. I objected. I asked the judge to rule on my motion for speedy trial. He looked briefly through the folder and denied it without reading it. He then stated that my motion was inappropriate because the information was now converted into a complaint. How, I asked, when the arraignment judge had ruled that it hadn’t been converted and the DA had taken no action to rectify the facial insufficiency of the information? The judge refused to let me speak. He ruled that the information that two judges had ruled had not been converted was actually converted despite the fact that literally nothing had changed. When I tried to get it on the record that the ruling was not supported by the facts or the law, he said “one more word out of you counselor, and I’ll hold you in contempt.” (Judges don’t like when you try to make the record reflect that they are wrong).

The DA smugly turned to me and offered a plea: conditional discharge with a fine of a little over $200 plus court costs. Victor, unable to disrupt his school and work schedule anymore, decided to take it.

That’s the end of this episode.  I’m almost out of stories from my time in criminal defense so I’m curious how the Commentists feel about where to go from here. One idea I had was to write about some issues from high profile cases that are covered on the news. If there’s a case or a story you’d like to hear more about, drop it in the comments or hit me up on Twitter @fakeapoth.