To Speed Cases to Trial Requires Major Changes in the System; Legal Aid Puts Discovery on Top of List
THURSDAY, JUNE 18, 2015

Speeding criminal cases to trial will require major changes in the criminal justice system including a complete overhaul of discovery which tops the list for Legal Aid.

“On the serious cases, you aren’t going to push a case to trial unless you get discovery of what the evidence is,” Justine M. Luongo, Attorney-in-Charge of the Criminal Practice, told the New York Times. “The only thing you can advise your client to do is to wait.”




Calls Mount for Changes to Speed Criminal Cases to Trial
The New York Time
June 17, 2015
By James C. McKinley Jr.

Two months ago New York State’s chief judge, Jonathan Lippman, and Mayor Bill de Blasio announced an initiative to speed up the criminal cases of hundreds of defendants who have been jailed at Rikers Island for more than a year awaiting trial.

The effort, intended to reduce the population of the troubled jail complex and to address concerns about excessive incarceration, was given a poignant human face this month. Kalief Browder, a young man from the Bronx who was held at Rikers for three years before prosecutors dropped charges, committed suicide on June 6 — as he had tried to do five times in jail.

Since Mr. Browder’s death, his history has seized the attention of the New York City criminal justice system, not only focusing attention on the efforts by the mayor and the state’s chief judge to expedite old cases, but also lending new urgency to calls to revamp bail laws and raise the age of criminal responsibility.

The calls for change gathered steam on Wednesday as the City Council held a hearing on proposed reforms to the bail system, with witness after witness invoking Mr. Browder’s name. At the same time, state court administrators released data showing that judges had made progress in reducing the backlog by moving cases to trial or working out plea bargains.

The hearing was called to consider a proposal to allocate $1.4 million for bail for poor defendants, and the Council speaker, Melissa Mark-Viverito, said Mr. Browder’s story was “a wake-up call for many in our city about deficiencies in our criminal justice system, including our broken bail system.”

Judge Lawrence K. Marks, the first deputy chief administrative judge, said that in the first two months of the initiative, judges sitting in special courts set up to address the backlog had cleared 42 percent of the 1,427 cases that Judge Lippman and Mr. de Blasio targeted. That has led to a 10 percent reduction in the number of defendants at Rikers who have been waiting more than a year for trial, officials said.

“The plane can’t take off until the 20 ahead of you take off,” Judge Marks said. “We are trying to get the planes at the head of the line to take off.”

Besides reducing the current backlog, the mayor and the chief judge have formed committees of prosecutors, defense lawyers and law enforcement officials, led by each borough’s administrative judge, to make recommendations on speeding cases to trial and reducing the time defendants spend in jail.

Nearly everyone involved in the effort says it will take fundamental changes in the way cases are handled, like how bail is set and what lawyers must turn over during the discovery phase of a case, to prevent the sort of prolonged pretrial detention that derailed Mr. Browder’s life.

“Honestly, there is some fault in every element of the system,” said Justice Robert E. Torres, the chief administrative judge in the Bronx, which has the largest backlog. “There is no judge in this building or under my jurisdiction who is not bothered by the length of time that it’s taking to resolve these cases. We work really, really hard to try to move them along, but there are laws and there are rules we have to go by.”

Previous efforts to reduce court backlogs have met with only limited success. Over the last two decades, the average time New York courts take to resolve felony cases has increased even as the number of arrests has declined generally, said Michael P. Jacobson, a former city correction commissioner who now heads the Institute for State and Local Governance at the City University of New York. “It’s going to be no easy thing to turn this ship around,” he said.

New York State has a speedy trial law requiring prosecutors to be ready for trial in most felony cases within six months or the case may be dismissed. Murder cases are excluded. In practice, however, the clock is stopped for all sorts of reasons, including pretrial hearings and motions, or if both sides consent to a delay.

In interviews, administrative judges trying to resolve the old cases said many delays stemmed from mundane logistical inefficiencies. Scheduling conflicts among busy defense lawyers, judges and prosecutors make it difficult to fix dates for hearings and trials, especially in cases with multiple defendants.

“You get attorneys out ill, you get prosecutors out ill,” Justice Torres said as he worked through a full calendar of old cases on Monday. “It’s a matter of puzzles and putting together schedules.”

Some boroughs have too few judges and court officers, and some courthouses lack enough interview rooms for lawyers to talk to their clients.

Robert T. Johnson, the Bronx district attorney, said shortages of judges and courtrooms drove most of the delays in his borough. “We are behind at almost all times,” he said.

Delays in transporting inmates from Rikers to court are a constant problem, slowing proceedings, judges said.

Some cases entail unavoidable slowdowns. Defendants with mental health problems, for instance, often go through examinations to determine their fitness for trial, and those exams can interrupt a case over and over. Insanity defenses also gobble up time for examinations by psychiatrists for both sides, judges said.

Cases involving DNA evidence often get bogged down as well. It can take months to obtain test results from a chronically understaffed medical examiner’s office, and defendants often wage a legal fight against orders to submit a sample, leading to lengthy hearings.

Defense lawyers say the state’s discovery rules also fuel delays, especially in violent felonies. The discovery rules do not require prosecutors to release much evidence until the eve of trial, and defendants facing long sentences are often unwilling to negotiate a plea until they see how strong the state’s case is.

“On the serious cases, you aren’t going to push a case to trial unless you get discovery of what the evidence is,” said Justine M. Luongo, who oversees criminal practice for the Legal Aid Society. “The only thing you can advise your client to do is to wait.”

Postponing a trial is often a legal strategy, judges said. Defense lawyers slow down proceedings in the hope that witnesses will disappear or memories will fade, and prosecutors sometimes place a bet that extended confinement at Rikers will persuade a defendant to plead guilty.

In most of the boroughs, the administrative judges have transferred old cases into special court parts, mediating with both sides to try to reach a plea deal. If those efforts fail, the judges have only one tool to urge compromise during conferences with the parties: their ability to set a trial date.

To reach agreements on the old cases, Justice Matthew J. D’Emic, the administrative judge in Brooklyn, said he had been demanding that the district attorney’s office present the best plea offer it could, then telling the defense to be ready for trial the same day.

Justice Michael J. Obus of Manhattan said he followed a similar approach. “It’s a matter of saying to the parties: ‘You have had enough time. I’m setting the case down for trial,’ ” he said. “It’s like labor negotiations. Until they are forced to make a decision, some people don’t.”