Criminal Court Backlogs Hurt Defendants, Warns Criminal Defense Chief Seymour James
MONDAY, JANUARY 04, 2010

Seymour James, Attorney-in-Charge of the Criminal Practice of The Legal Aid Society, said that backlogs in Criminal Court deprive defendants of their chance to move forward with their lives, while burdening them with endless days spent waiting at courthouses. "They're forced to either remain in jail or those who are on bail or parole are forced to return to court repeatedly to get a trial," James told The New York Law Journal. "It's actually very difficult for them. They'd like to have their trial and be vindicated." James pointed out that the courts are in great need of additional resources. 

 

January 4, 2010
The New York Law Journal
Courts, D.A.s Turn to Bench Trials to Cut Criminal Court Backlog
by Mark Fass
01-04-2010

In Staten Island, the borough's two Criminal Court judges have a backlog of 329 trial-ready cases. At a rate of one trial per judge per week, it would take them more than three years just to hear their current cases.

In Brooklyn, where misdemeanor arrests have jumped by 11 percent over the past year, 20 Criminal Court judges face a logjam of about 2,500 trial-ready cases.

In the Bronx, where the misdemeanor and felony parts merged five years ago—in part, to address the misdemeanor backlog—the small advances in combatting misdemeanor delays have come at a great expense: The court's capacity to hear felony trials has fallen by more than 50 percent.

Over the past decade, felony arrests have declined 11.9 percent in New York City, while misdemeanor arrests have climbed by 18.2 percent. Those misdemeanor cases have flooded New York City's Criminal Court system. In 2005, there were 36,143 pending misdemeanors in the city's Criminal Courts. That number has grown each year, reaching 48,823 in 2008. And although pending cases declined somewhat in the first 10 months of this year, they are still significantly higher than they were three years ago—much too high for the court to accommodate without burdensome delay.

dseThe explanations for the rise in misdemeanor arrests, and thus misdemeanor prosecutions, vary. Some experts contend that the police now have time to focus on smaller crimes, others argue that the new emphasis on statistics encourages officers to reduce charges to imply dropping crime rates.

Either way, the five courts charged with hearing misdemeanors in New York City—the four Criminal Courts, and the merged Bronx Criminal Division—are stretched beyond their capacities.

The Office of Court Administration is finalizing a uniform plan to address the logjam, according to its administrative director, Acting Supreme Court Justice Lawrence K. Marks.

Justice Marks said he expects the program to be announced soon, but that it would be premature to discuss specific options under consideration.

"We're taking more of a citywide, comprehensive look at this," the judge said. "We have a number of ideas we're considering."

In about a dozen interviews over the last week, judges, defense attorneys and district attorneys from throughout the five boroughs described the central problem as a lack of "resources"—mainly, an insufficient number of judges.

No matter how much court administrators juggle judges' assignments, so long as there are too few judges, the backlog will persist, most everyone agreed.

"You want the police to make arrests and you want us to prosecute them, but we just have limited resources," said Chief Bronx Assistant District Attorney Odalys Alonso. "If you have the resources—if you have the correct amount of judges, the correct amount of defense attorneys, the correct amount of D.A.s—then you can get through the backlog."

Until either more help comes along or a centralized approach is underway, the courts and the city's district attorneys have begun instituting piecemeal approaches to address the Criminal Court backlog.

Because delays tend to favor the defense—as Staten Island District Attorney Daniel M. Donovan Jr. put it, "Time is never on a prosecutor's side. Witnesses disappear, evidence disappears"—the onus falls largely on the courts and the prosecutors to break the log jam.

However, several defense attorneys pointed out that delays can hurt defendants as well as hamper the efforts of prosecutors.

Seymour James, the chief of the criminal practice at The Legal Aid Society, said that the backlogs deprive defendants of their chance to move forward with their lives, while burdening them with endless days spent waiting at courthouses.

"They're forced to either remain in jail or those who are on bail or parole are forced to return to court repeatedly to get a trial," Mr. James said. "It's actually very difficult for them. They'd like to have their trial and be vindicated."

Sam Braverman, a Bronx solo practitioner who teaches advanced trial advocacy at Pace Law School, cited several examples of defendants who are harmed by the extended and repeated delays: a client who had to appear 31 times over two years in order to get a court date to contest marijuana charges; a domestic violence defendant who is excluded from his own home and cannot see his children until the charges are dismissed, and a defendant who depends on the testimony of a hard-to-find witness.

"Witnesses disappear on both sides," Mr. Braverman said.

"For the majority of [defendants, the backlog] is a good situation," Mr. Braverman conceded, "but because neither I or the D.A. nor even the judge knows who the innocent people are, they all should get respect. If you treat them all as innocent, as we are supposed to, then the delay is not in anybody's interest."

Bench Trials in Brooklyn

Brooklyn, which had the highest number of pending misdemeanors, 18,570 last year, has moved the most aggressively to cut the backlog.

Acting Supreme Court Justice Barry Kamins, the borough's administrative judge for criminal matters, and District Attorney Charles Hynes have instituted several measures intended to change the Criminal Court culture where, according to Mr. Hynes and Justice Kamins, defense attorneys have come to expect indefinite delays and repeated adjournments, and use the backed-up system as leverage in plea negotiations.

"Sometimes defense counsel will hope that the case will drag on and never go to trial," said Justice Kamins.

The centerpiece of Brooklyn's approach is the use of acting Supreme Court justices, when available, to hear bench trials. The program began on Oct. 19, and has thus far resulted in 18 dispositions—12 verdicts, four pleas and two dismissals.

While this may appear to be just a drop in the proverbial bucket—Brooklyn has more than 500 cases awaiting bench trials—each disposition represents dozens of cases that have likely settled solely because judges were available to hear cases, according to Justice Kamins.

"It puts a hammer over the heads of both sides," said the judge, himself a former prosecutor and a former defense attorney. "The parties are now beginning to understand that if cases are ready to be tried, they will be tried."

To facilitate the process, Mr. Hynes has ramped up a policy that many district attorneys have followed since the 1970 U.S. Supreme Court decision Baldwin v. New York, 399 U.S. 66—reducing some A misdemeanors, which have a maximum sentence of one year, to B misdemeanors, which have a maximum sentence of six months and, under Baldwin, no right to a trial by jury.

With no juries to work around, the bench trials can be squeezed in between felonies by acting Supreme Court justices.

These measures seem to be working. As of Nov. 8, Brooklyn had commenced 137 bench trials this year, while Manhattan, Queens and Richmond combined had started a total of 108. The system has the added benefit, Mr. Hynes noted, of providing lower-stakes trial opportunities for junior prosecutors.

Mr. Hynes has also stationed senior prosecutors in the criminal courthouses in order to expedite plea negotiations. Junior assistants no longer have to return to the office to get authority to make a new offer, he said.

In 2008, the number of misdemeanor dispositions in Brooklyn rose for the third straight year, rising from 85,335 in 2005 to 98,633. Moreover, the number of pending cases in the borough dropped by 2,636 cases in the first 10 months of this year.

A Full-Time Assignment

In Manhattan—which vies annually with Brooklyn for the deepest backlog, including 17,196 pending cases in 2008—Civil Court Judge Barbara Jaffe has been assigned full-time to try Criminal Court cases.

While the number of cases Judge Jaffe hears may be relatively small, Justice Marks said, the mere fact of her availability encourages countless plea bargains.

"The point should always be emphasized that it's not the number of trials, the key is the capacity to try the case," Justice Marks said. "I think [Judge Jaffe's reassignment] is working very well."

Only the Bronx has seen the wait for misdemeanor cases remain about steady over the last few years—a product of the merged Criminal and Supreme Courts—but few attorneys, if any, are advocating for implementing the Bronx's approach citywide.

According to a recent report by the New York City Bar marking the merger's five-year anniversary, while the program has stemmed the backlog of misdemeanors, it has created "a far greater backlog in felony trials": In 2003, 317 felony trials reached a verdict, in 2007 only 140. The report described the 55-percent drop, in a period where felony complaints increased by more than 10 percent, as "alarming" (NYLJ, June 11, 2009).

Like his Brooklyn counterpart, Staten Island's chief prosecutor, Mr. Donovan, has assigned senior assistants to both of his county's criminal courts in order to expedite plea bargains. In Queens, Criminal Court judges have been informally encouraged to clear their calendars for a week every month or two just to hear backed up cases, according to a spokesman from District Attorney Richard Brown's office.

The new Manhattan district attorney, Cyrus Vance Jr., has pledged to work with the courts and other agencies within the criminal justice system to increase misdemeanor trial capacity.

And in all five boroughs, judicial hearing officers, about eight total, are hearing B misdemeanors.

But for the most part, the hopes for a significant improvement seem tied to the possibility of the future assignment of additional judges.

In Staten Island, a new Criminal Court courthouse is expected to open in 2012, which will feature one more courtroom. Mr. Donovan expects that a third judge will be assigned to his borough, and the court will become 50-percent more efficient.

"Our judges are dancing as fast as they can," Mr. Donovan said. "The courthouse will be such a godsend for us. I really foresee some great relief in our backlog when that new building comes." Mr. Donovan added that the OCA has not guaranteed that a third judge will in fact be assigned to the new courthouse.