Concern Over New Gun Courts Expressed by Public Defenders
THURSDAY, FEBRUARY 04, 2016

Tina Luongo, Attorney-in-Charge of The Legal Aid Society’s Criminal Practice, told PUBLICO Pro, that “The concern is not the court — implementing a court. There’s lots of different courts that have been enacted and created over time. The takeaway people heard from the announcement was, ‘We’re going to treat you differently. You’re going to get less due process.’”

Luongo said that the setup of the courts themselves could make the goal of expediting these cases a challenge. The use of judicial hearing officers in Brooklyn cases will potentially add time to the cases rather than expediting them.

“An [JHO] can’t have the final finding of conclusion. It has to be reviewed by a judge. Either the prosecutor or the defense attorney has a right to controvert the finding…That’s actually going to slow things down. That’s going to build in the right to do a motion, another person’s right to respond to that motion, and possibly a third adjournment for the judge to review everything…and then rule,” Luongo said.

Additionally, Luongo said she was concerned that the judge in the case, often the one who has to rule on the finding of fact in suppression motions (evidence suppression motions that are successful essentially kill a gun possession case), and that simply reading the testimony from a hearing overseen by a JHO could lead to bad rulings. “Certainly, this notion of, we’re going to ensure these cases move along, is actually in fact sort of challenged by the fact they built in this option that will slow things down,” she said.

“Nobody came to us to say, ‘What do you think,’” Luongo said.




POLITICO Pro
Public defenders express concern over de Blasio's new gun courts
By Colby Hamilton
Feb. 4, 2016

Public defenders are expressing concern over the city’s new gun court part, saying the stated goal of targeting gun possession cases in a special way and moving them quickly through the system raises questions over both the intent and the potential impact.

“Based upon the language coming from the police commissioner [Bill Bratton], coming from [Citizen’s Crime Commission President] Richard Aborn, coming from the de Blasio administration, about evil-doers, about hammering down on individuals, taking them off the streets, throwing them in jail, keeping them — ‘them’ — away from us…This is transparently punitive in scope,” said Brooklyn Defenders Service staff attorney Scott Hechinger.

The concern expressed by Hechinger and others is a reaction to the announcement of the new courts last month by Mayor Bill de Blasio and a host of prosecutors, law enforcement officials and court administrators.

Tina Luongo, attorney-in-charge of the Legal Aid Society’s criminal practice, said, “The concern is not the court — implementing a court. There’s lots of different courts that have been enacted and created over time. The takeaway people heard from the announcement was, ‘We’re going to treat you differently. You’re going to get less due process.’”

Hechinger said he feared the goals of the court will result in a disproportionate effect on specific communities.

“When you look at the numbers of who is getting arrested for these nonviolent mere possession cases, mostly young, African-American kids, and mostly — and this is acknowledged by the proponents of this — first-time arrests,” he said, adding that Brooklyn Defenders Services handles approximately 45,000 cases a year. “None of us are for guns on the street. What we’re for are smart solutions that will ultimately reduce violence. These gun courts are not going to do that.”

For Luongo, the setup of the courts themselves could make the goal of expediting these cases a challenge. The use of judicial hearing officers in Brooklyn cases will potentially add time to the cases rather than expediting them.

Depending on the results of the pilot in Brooklyn, the teaming up of judges with hearing officers could be expanded, according to the city.

“An [JHO] can’t have the final finding of conclusion. It has to be reviewed by a judge. Either the prosecutor or the defense attorney has a right to controvert the finding…That’s actually going to slow things down. That’s going to build in the right to do a motion, another person’s right to respond to that motion, and possibly a third adjournment for the judge to review everything…and then rule,” Luongo said.

Additionally, Luongo said she was concerned that the judge in the case, often the one who has to rule on the finding of fact in suppression motions (evidence suppression motions that are successful essentially kill a gun possession case), and that simply reading the testimony from a hearing overseen by a JHO could lead to bad rulings.

“Certainly, this notion of, we’re going to ensure these cases move along, is actually in fact sort of challenged by the fact they built in this option that will slow things down,” she said.

Had the city brought the defense bar into the conversation, both Luongo and Hechinger said, there would have been a chance to discuss the issues defense attorneys are now identifying.

“Nobody came to us to say, ‘What do you think,’” Luongo said.

For the de Blasio administration, it made little sense to include public defenders in the conversation about the new courts. The thing goes that since it’s the police and prosecutors who have to work together to bring the cases, it was natural—and prudent—to limit the conversation.

Overall, the administration casts the new gun courts as anything but the punitive slog feared by defense attorneys.

“Project Fast Track is a smart balance between protecting public safety and promoting fairness. Instead of a dragnet, this plan will focus resources on the few high-risk individuals driving violence in New York City, while also ensuring that decisions about the strength of a case are made rapidly instead of allowing a defendant to wait in jail for months on a case that is ultimately dismissed,” Sarah Solon, Chief External Strategy Officer for the Mayor's Office of Criminal Justice, said in a statement.

The administration believes that this targeted approach will have a direct impact on the Rikers Island jail population. Currently, 203 inmates with cases that have pending for longer than six months are sitting in the island jail. Their average detention is 358.6 days. The estimate is that if these cases get resolved within the six months, the absence of those inmates will result in 98.2 bed-days reduction on average.

This will be facilitated initially by focusing on the strongest cases, while having the weaker cases dismissed more quickly. In 2014, according to the city, of the 4,083 felony gun possession cases across the city, 54.4 percent resulted in convictions. The remaining cases were either dismissed, were declined to be prosecuted or ended for other reasons.

Each of these cases in the current system results, in part, in the extended time spent in jail for defendants, and a tax on the resources of the court overall.

Moving these cases along in the new part means relying on the ability of the judicial hearing officers to be effective. The administration believes they will be, in large part because the JHOs will be retired judges who are expected to have the ability to parse the good cases from the bad, while being mindful of due-process and quality of justice concerns. This will mean an arraignment occurs within two weeks, rather than 34 to 40 days on average cases currently take.

“This is the next phase of effectively combatting gun violence -- doing so with a surgical blade instead of with a sledgehammer, avoiding unnecessary jail time and undue damage to communities,” Solon said.

Defense attorneys also said they worried that the new court part would drain resources from the rest of the system. Judge Matthew D’Emic, the administrative judge for criminal matters in Brooklyn, says his court was designed specifically to keep that from happening. D’Emici said he specifically chose two judges, Acting Justice Cassandra M. Mullen and Judge Suzanne M. Mondo, who each had relatively low inventory, and the parts —28 and 29—are set to operate one day a week per judge.

“Obviously my job is to keep an eye on it—to see if its working, to see if there’s a problem, to see if its affecting other cases in the court. I don’t expect to. I set it up in a way that I didn’t think it would,” D’Emic said.

The argument was also made that investing in prevention measures would be a better use of city resources to combat the issue of gun violence, rather than focusing on prosecuting cases.

City Councilman Jumaane Williams, who has been active in pushing for more programs and services in communities affected most by gun violence, took a cautious approach when asked about the gun courts.

Williams said that, along with members of the defense community, community activists and service members were also absent from the announcement of the gun courts. He called that “a problem.”

“I think it’s a joint effort,” he said. “I’m very happy to have the police department as a part of that. I think it is a necessary partnership, but we want to make sure all of the partners are at the table and talking about what they’re doing.”

For him, the test was whether resources flowed to address the problem outside of the criminal justice system. He pointed to the budget process the Council and mayor are beginning, and said he hopes to see “balance” in the resources the city is providing to combat the issue of gun violence.

“When we talk about Legionnaires and Ebola, you often see multiple agencies coming together. You don’t really see that too much with gun violence. We want to change that. This domain just can’t be occupied by law enforcement,” he said.