City Bar Applauds State Court's COVID-19 Changes—Then Suggests 10 More

The New York City Bar Association on Tuesday issued a statement applauding protective measures against the coronavirus put in place in recent days by the state court system.

But at the same time, the bar association detailed 10 other measures that it said should be considered for monitoring, “follow-up, and possible … modification,” including requiring judges to consider releasing from pretrial detention anyone over age 60 or with underlying health conditions that could increase their risk for contracting the potentially deadly virus.

Listing several potential measures focused on the criminal justice system, City Bar Association president Roger Juan Maldonado also said in the statement that criminal court judges “should be encouraged to reexamine bail in other appropriate cases,” since the incarcerated who can’t make bail “should not have to languish in jail while the City tries to contain the virus,” he said.

“Their cases should be given prompt reexamination and consideration for release, with other appropriate conditions,” said Maldonado.

He and the bar association also said that when arraignments happen remotely pursuant to recent state court changes, the presiding judges should consider all bail alternatives in an effort to “avoid increasing the incarcerated population to the greatest extent possible.”

“Indeed, special attention should be paid to the pending crisis at Rikers Island where, according to reports, health and sanitation conditions are rapidly deteriorating,” Maldonado added in the statement.

Speaking more broadly, the bar association also urged the state Unified Court System to consider having state judges “accept e-filing of all court papers, as they deem appropriate.”

Many of Unified Court System’s recent COVID-19-fueled changes were detailed in an “Updated Protocols” memo from Chief Administrative Judge Lawrence Marks circulated publicly Sunday.

A spokesman for the Unified Court System on Tuesday did not address point for point the City Bar Association’s lengthy statement, which also endorsed several of the state court system’s recent changes.

But spokesman Lucian Chalfen did say to the Law Journal in an email, “Defense attorneys are free to make whatever applications they like to the Court. Judges will rule on those individual judicial determinations as they do in any other circumstance.”

The bar association began its statement by “applaud[ing] the Unified Court System for taking steps to protect the health and safety of New Yorkers” while also urging that “special attention continue to be paid to vulnerable populations during this crisis, including individuals who are unrepresented, low-income, disabled, non-English speaking, elderly, or in poor health.”

“We are pleased to see that no new civil or criminal trials will commence; that all non-essential civil matters are suspended; that all eviction and pending eviction orders are suspended; that tenants are permitted to make essential applications … that essential family court matters may proceed; and that arraignments will be conducted through video remote appearances in New York City and wherever else possible,” Maldonado further said in the statement.

Still, in listing other areas that should be consider for possible follow-up or modification, the bar association also urged that a court system 800 number for emergencies and concerns should be made widely available, perhaps through the 311 system.

It also suggested, as stated exactly in its public statement:

* For incarcerated defendants, judges should consult with defense counsel prior to the court date to determine if the defendant should be produced and coordinate with corrections accordingly, or allow for telephonic appearance of the parties as appropriate. Adjournments should be shorter than 30 days where the defendant is incarcerated, unless defense counsel agree to a longer period.

* In family court cases that are deemed essential, clarify whether lawyers and litigants need to appear or if a reasonable alternative exists.

* Given that family court childcare and schools are closed, family court judges should be lenient about litigants who need to bring children into the courtroom with them or who cannot appear due to lack of childcare; and that

* Similar to evictions, all consumer debt proceedings in civil court should be suspended, and all pending consumer debt judgments should be stayed, statewide until further notice, except that a respondent’s motion to vacate a judgment should be considered an essential application and heard expeditiously.