New York Times: Waiting and Waiting…for Justice

LATE in the summer of 2011, police officers in New York City arrested a full-time college student named Luis in the lobby of his apartment building in the Bronx and charged him with two misdemeanor offenses, obstructing governmental administration and resisting arrest.

Luis, though, wasn’t guilty of either — a fact supported by a video of the incident, provided to prosecutors by Luis’s lawyer, clearly showing that he had his hands up throughout the encounter. But when the district attorney’s office refused to dismiss the case, Luis found himself in a strange, dispiriting limbo of American justice: he had no realistic way to be acquitted at trial — not because he couldn’t prove his innocence, but because he couldn’t get a trial.

Every year in New York City, more than a quarter of a million people are arrested and charged with misdemeanor offenses. The vast majority of those who don’t plead guilty right away are released without bail and ordered to return to court to fight their cases until they are concluded. But as William Glaberson reported in The New York Times on Wednesday, that can take a very long time.

Statistics for courts in the Bronx are hard to come by. But in 2011, according to a report by the Criminal Court of the City of New York, it took over 400 days, on average, in the city’s other four boroughs to bring a case to a jury trial and verdict — with cases in Brooklyn taking nearly 600 days. That same year, defendants in New York City (with the exception of the Bronx) were required to make 906,243 court appearances — which ended in a mere 506 jury trials. Defendants spent the overwhelming share of those court dates just waiting for their cases to be resolved.

Reducing the vast number of people charged with relatively minor offenses would go a long way toward easing this immense burden. But even without a shift in policing strategy, there’s one straightforward fix we can make: treat criminal cases more like civil cases by excusing defendants from appearing in court until the prosecution is actually ready to try them.

In civil actions, lawyers file lawsuits and litigate them on behalf of clients who need not come to court until it’s time to be deposed or appear at trial. In criminal courts, on the other hand, a defendant must show up — braving long lines at security, only to fritter away hours waiting in courtrooms, just to appear for a “calendar call” that usually lasts 90 seconds or less and almost always results in further adjournment.

This happens even when prosecutors have advised the court in advance that they are not ready to proceed. The appearance requirement — which can cost a person weeks of lost paychecks and hours spent arranging child care — rapidly becomes onerous. As a result, more than 99 percent of those who initially want to fight the charges are worn down by the legal equivalent of “Waiting for Godot,” and eventually agree to plea bargains to end their cases. The same is true for misdemeanor cases in many other major American cities: the process has become the punishment.

The United States Constitution does not require that a criminal defendant be present in court; it just insists that the accused be allowed to be present at every material stage of the proceedings. Unfortunately, over the years, this right has been translated into an obligation, with utterly brutal consequences.

So why not make criminal justice more civil? At least for nonessential proceedings, misdemeanor defendants who would prefer to let their lawyers do the work should be excused from having to appear in court. Or to frame it another way, courts should require a defendant to be present only when something substantive — like a negotiated disposition, hearing or trial — is really going to happen.

Judges already have the power to excuse defendants but they nearly always refuse to use it. A recent study by the Bronx Defenders, which provides free legal representation to poor people, found that vanishingly few judges would even entertain a motion to excuse a defendant — and among those few who did, even fewer ever granted such a request.

Thus, rather than rely on judges, the State Legislature should amend the law to presumptively excuse defendants. If there’s a good reason for them to be in court, a judge would still be able to require it. But changing the presumption will go far in easing the pressures of overcrowded courtrooms, allowing lawyers to do the bulk of the business of a criminal case — serving and answering motions, settling discovery disputes and arguing over process — far more easily and efficiently than our current system allows.

This simple reform would also radically change the experience of being a criminal defendant, providing hundreds of thousands of at-liberty defendants charged with minor offenses a realistic chance to fight their cases without losing their jobs or being ground down by the process. The change would not only create a more civil criminal justice system, it would finally offer more defendants the chance to have their cases genuinely adjudicated, rather than summarily processed.

David Feige, a television writer and a former public defender in the Bronx, is the author of “Indefensible: One Lawyer’s Journey Into the Inferno of American Justice.”

A version of this op-ed appeared in print on May 2, 2013, on page A23 of the New York edition with the headline: Waiting and Waiting … for Justice.

See original here.