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Calm before the storm. 5 minutes till night court starts. Start to my second work day. I'm in Brooklyn Criminal Court from 5pm-1am. As always, will do best to report from the front when I have opportunity. No idea how busy it'll be. Hopefully slow. Means less people incarcerated.
Fuel: Small coffee. Two splendas. Splash of half and half. Apollo Diner.
No cases yet. Which usually only means one thing. It’s going to get busy later. Often all at once. This is why I always bring laptop (to arraignments, but also to normal court days). Have to use every opportunity *at work* to work. And even then, inevitably spills over into life.
Folks are asking what night court is. In Brooklyn and other boroughs in New York, criminal court is open for arraignments 7 days a week, 365, 9am - 1am the following day. Why: So many arrests & the need to ensure people are seen within 48 hours. In Brooklyn, most are seen w/n 24.
For those interested, I did a night court thread wrap up at the end of 2018. 10 different night court threads in one here.
Most people think of arraignments as just some administrative necessity. Where you walk in to court, get formally charged, & walked back out again. This is because the arraignments most people see on T.V. are for people like Harvey Weinstein:
2 tiers of justice.

1 for those who have: Walk into court, suit & tie, prearranged bail package, walk back out again, fight case from position of freedom.

1 for those who don't: Arrested, cuffed, fingerprinted, held in a cell overnight, bail set.
I meet clients w/n 24 hours of an arrest. On the brink of crisis. In extraordinarily terrified & terrifying conditions. For them, arraignments are outcome determinative. Bail set on a misdemeanor? 92% plead guilty just to go home. On a felony? More likely to plead. To more time.
I did a break down thread of arraignments and bail here if interested in checking out:
To be clear: Im not mad at Weinstein, Manafort, & Spacey. That's how bail is supposed to work. It's an incentive not punishment. Spacey didn't even have to pay bail. I just wish my clients were treated w/ the same humanity. Wrote about these issues here: nytimes.com/2018/09/19/opi…
Just got handed my first case. A file. With a name. And a penal code. All I know is his accusation & his prior record. That's where a public defender job starts. But the real work begins when we walk to the back of the courtroom where the cells are & meet for the first time.
I'll be back when/if I can be. Thanks for following along.
Just met a 64 y/o disabled army veteran. Very sweet man. Barely could walk into interview room. So shaky could barely stand when we ultimately stood in front of the judge. Walked w/ cane. Charge? Assault on an EMS worker while being taken to the hospital. 2 months ago. Questions.
How on earth did *this man manage to do that? Perhaps even more baffling: Why didnt they arrest him after brought to the hospital if he actually did what alleged? That's routine procedure. Answers to both, I believe: He didnt do anything. Officers covering their own bad behavior.
Yesterday morning. 730am. This man hears a knock on his door. 4 warrant officers there to pick him up for an alleged incident from November. He was clueless. They must have the wrong guy. Cuffed. Taken to precinct. Waits nearly 12 hours-til *5pm*-for arresting officer to show up.
He's placed in a *lineup* and the ambulance officer picks him out as the perpetrator. He continues to deny wrongdoing. At some point last night, he's brought to hospital for necessary medication & for health check. Then held longer. 36 hours after his arrest, I'm handed his file.
When I read case & get a sense of him on paper, I already see something isn't right. When I walk back to interview area, call his name, & see this poor man stumble in about 20 seconds after calling for him, I *know everything is wrong. Asks me over & over: "Am I going home?"
I hate this question--"Am I going home?"--bc there is rarely a way to make that guarantee. I wish I could say. I go thru cons (nature of allegations) & pros (everything else, including nature of allegations). The wild card, as always, is prosecutor's bail request & the judge.
People think judges are only player when it comes to bail. While true they are one's who ultimately make decision, a prosecutor's bail request is the greatest determinant of whether bail will be set. If prosecutors consent to release, judge will do so.
I told him that I'd do everything in my power to get him home. I had enough information to make a 10-15 minute release application based on nearly all statutory bail factors (save for seriousness of offense) in his favor. Called his close friend, who described him as a good man.
Before his case was called, I told my colleagues that if bail was set on the next case of mine, it would be a travesty. Then *they saw him walk out of the back, with his cane, to have his retinas scanned, & then sit down on the bench behind glass to await his fate. Heads shaking.
Case then called. Heart was beating. Prosecution steps up. Starts by asking for an order of protection in favor of EMS. Judge responds appropriately: "There is no way I'm issuing such an order. What happens if he's in an emergency? You want him to walk the other way?"
She then looks at him. Really looks at him. Then I look at her. And she looks back at me. She knows something's up. I turn to client and whisper: "We're off to a good start." The prosecution then walks thru allegations. And requests $10,000 bail. Judge looks my way. I'm ready.
I'm ready to talk about his life, his character, his conditions, his financial status, the danger he faces of losing housing, his service to our country, the sacrifices he made during that service, his friend, his friend's niece who walked into court last minute to support him.
Then judge asks me: "When was his last bench warrant?" Meaning: When was the last time he missed a court date. I had that answer ready: 20. YEARS. AGO. I could tell she had already looked & saw that. It was a good sign. Good 1st question. Then silence. "Counselor?" she asked me.
"I was hoping, your honor, that was all you needed to know, but I'm happy to provide more information if you'd like it," I said. "Give me a little more." I knew she was going to release him. I mentioned his age & his current situation. "Thank you. Sir, you're RELEASED."
Look over at him & he thanks me. Then asks, "Now tell me. How do I get out of here?" I pointed to and then me him out in hallway. By the time I got there, a representative from the "Criminal Justice Agency" was already speaking with him, to help him. nycja.org
Will help him remember & even get to his court date and connect him with services if he wants. At the end of their discussion, the representative (a really kind man), reached into his bag and pulled out a $10 gift certificate to Target. He was so grateful. As was I.
I kept the rest of our conversation short. Told him it was nice to meet him. Wish it was under better circumstances. Then we said goodbye. I'll see him in a few months. But told to put this out of sight, out of mind till then. Then he staggered toward the entrance & out the door.
And now it’s dinner time. Out of court. Past central bookings and Brooklyn house of detention. To humanity. For just a bit.
I’m back at “120” (Brooklyn criminal Court is located at 120
Schermerhorn Street). Just busy. Will update when I can.
Met 24 y/o. Charged w/ a "violent" felony. No one injured. No one touched. Dad of 2 young children. Never previously missed a court date. Working toward full time employment & his GED through a new program. Asked for release. Told judge he could pay at most $350. Bail set: $15K.
I plan on filing an appeal challenging bail. Only factors for bail were "seriousness" of offense & sentence he faces, but is unlikely to get. The rest: Counseled in favor of release. Most significantly, bail was set in an amount I actually told the judge he could not afford.
Bail in NY may only be set in an amount "necessary to ensure return to court." No more. The drafters of the law certainly were not envisioning a system where a person's return to court would be ensured by incarceration because of their poverty. Yet he's on his way to Rikers.
Waiting on another case to be called now. 3 other individuals represented by my colleagues will be called first. Have to move past this client for now. Get in the zone for the next. Going for a walk around the first floor of the courthouse to stay fresh. More soon.
Walk didn't work. So I'm going to keep fresh by continuing to type an answer to this (👇) question. Under NY law people are routinely charged with violent felonies when no one else is touched, no one else is even present. I'll follow up with some examples:
1. 2d Degree Robbery. C Violent Felony. Mandatory Min 3.5. Max 15. Two 17-y/o's approach another 17 y/o. One says give me your phone or else I'll beat you up. Phone given. Deemed "violent" bc more than one person involved.
2. 2d Degree Burglary. C Violent Felony. Mandatory Min 3.5. Max 15. Person enters lobby of a building and steals a pair of shoes on the ground. No one present. "Violent" because a lobby is considered a "dwelling."
3. 2d Degree Weapon Possession. C Violent Felony. Mandatory Min 3.5. Max 15. Possession of a gun either loaded or with ammunition close by outside of your home. No use or intent to use. "Violent" because "loaded."
4. 1st Degree Robbery. B Violent Felony. Mandatory Min 5 Max 25. Group goes into shoe store. One takes some wind breakers & runs. As manager follows, one of them individuals displays mace. "Violent" bc more than one person. 1st degree bc threatened use of "dangerous instrument."
My colleague’s client currently standing before the judge is wobbling. Clearly doesn’t look well. Judge asks if she needs to sit down. Says she may vomit. Judge says: “I have a garbage pail handy.” She makes it through.
A former public defender criticized my threads tonight as “sensationalizing” night court. Let me be clear. There is nothing sensational about this but the tragedy, fear, & horror.
My last case: 33 y/o man falsely accused. Very serious allegation. Gunpoint robbery. In friend’s house. Theft of substantial money. Prosecution asked for $75,000 bail. Was faced w/ tough decision public defenders face all the time: Go into client’s version or not? I’ll explain.
Ideally, we wouldn’t address facts at all. Arraignments are not trial. Rich folks w/ prearranged bail don’t have to. Just plead not guilty, move on. But in a system where case outcomes are so determined by bail rather than merit, we’re often forced to put it all out there.
In this case, the prosecution helped. The allegations were so extreme & nonsensical, I could simply point out the oddities in the story & brand their version of events with a simple theme: The alleged victim lied & threw my client under the bus to cover his own misdeeds.
Fortunately, I was in front of a judge tonight thats been working for quite some time & has a knack for sniffing out B.S. Often unfortunately at my clients’ expense. But here, she read thru it & released him. I was actually surprised. Risk aversion often trumps common sense.
Client was so relieved. I told him before we appeared I thought the judge would set bail, but I’d do everything to get him out. Told him to prepare for worst, hope for the best. After release, we both walked into hall. I said, “Ok. Let’s take a deep breath.” And we both did.
And with that, goodnight. Thanks for following.
One last thing. If you’ve made it this far, do yourself a favor. I mean it. Please watch this powerful new music video retracing the heartbreaking journey of Nilda, an asylum seeker, & her son. I want the whole world to meet them. Then share it. Link here:
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