Too often in New York City, the maxim “justice delayed is justice denied” is no mere abstraction, but a reality that wears down defendants, dispirits victims and cheats taxpayers.
This is particularly true in the city’s criminal court, where lower-level cases—misdemeanors and petty offenses—are adjudicated and where the gaze of policymakers and the press rarely settles, at least compared to the attention paid the more serious felony prosecutions handled in Supreme Court.
In 2014, the last year for which data is publicly available, 303,284 defendants were arraigned on misdemeanors and petty offenses, and 176,417 of these cases, or 58.1 percent, were resolved at arraignment either by a dismissal in some form or guilty plea; 126,867 cases moved forward.
Statutory “speedy trial” rules require that misdemeanor charges be resolved after arraignment within either 60 days (B misdemeanors) or 90 days (A misdemeanors). Instead, in 2014 it took an average of 140 days to resolve misdemeanor cases that continued beyond arraignment in New York City. (This increased to 146 days in 2015.) For the 580 misdemeanor defendants citywide with the stamina to see their case through to an actual trial, the average wait was 571 days for jury trials and 479 days for bench trials, a 36 percent increase from 2011.
Thousands of defendants sat on Rikers Island unable to make bail at enormous cost to themselves and to taxpayers. Prosecutors, defense counsel, defendants and victims made repeated needless and unproductive courtroom appearances, further stretching the thin resources of judges and court personnel.
The strain and hassle grinds everyone down, leading to distorted outcomes as witnesses’ memories fade and both defendants and victims want to move on. They surrender to the grind of the system, and trade the pursuit of justice for the relief of closure.
Consider the 2013 study “No Day In Court,” by The Bronx Defenders, a legal services provider, of fifty concluded misdemeanor marijuana possession cases (a B misdemeanor with a 60-day speedy trial limit) where defendants were determined to eschew plea deals and to win their cases outright at either an evidentiary suppression hearing or trial.
None made it that far. None had a completed suppression hearing (the four cases that were actually sent out for hearings either imploded and were dismissed or were pleaded out to non-criminal charges), and none had an actual trial. Sixty-four percent were dismissed in some form and 30 percent pleaded down to a non-criminal violation, but only after an average time from arraignment to conclusion of 240 days, including on average five court appearances.
As the report put it about one of the defendants, he “had spent many days in court, but he had not had his day in court.”
The reasons for this complete breakdown in ‘speedy trial’ requirements are many, including (1) a lack of available judges, court officers and courtrooms; (2) a haphazard discovery process that frustrates timely plea deal negotiations; and (3) a speedy trial statute unique to New York that allows the parties to game the system.
The first place to start is an examination of judicial resources, both in absolute terms and as allocated amongst the boroughs.
Even though the mayor is authorized by state statute to appoint 107 Criminal Court judges (and has mostly made all of these appointments), there are only 73 judges currently hearing Criminal Court cases: 46 of these are mayorally appointed Criminal Court judges, and the remaining 27 are Civil Court judges (some elected and some mayorally appointed) assigned to Criminal Court. The other approximately 60 mayorally appointed Criminal Court judges have been designated Acting Supreme Court judges to sit in Supreme Court hearing felony cases.
The distribution of these 74 judges sitting in Criminal Court also merits a closer look. Even though in 2014 Manhattan had only 16 percent more misdemeanor cases not disposed of at arraignment than Queens (39,648 versus 34,134) Manhattan has 61 percent more judges sitting in Criminal Court (21 versus 13).
There are other factors to consider, to be sure, in determining the right allocation of judges between the five boroughs, but the net result of this imbalance is undeniably problematic: Manhattan has several full-time trial parts to try misdemeanor cases, and Queens has one, and it is part-time; Manhattan had 217 actual trials, and Queens had 53.
Every Criminal Court participant has identified a lack of judicial resources as the single biggest obstacle to meeting speedy trial standards, and bringing the number of Criminal Court judges sitting in that court up to the statutorily allotted (and actually appointed) 107 would have an enormous impact. Additionally, the allocation of these judges needs to be examined.
Pretrial discovery and motion practice are other sources of frustration, both for defense counsel and prosecutors. The issues with New York’s highly restrictive criminal practice discovery statute have been exhaustively canvassed elsewhere, including in the 2015 report of the New York State Bar Association Task Force on Criminal Discovery, which summarized our approach as “far outside the mainstream” nationwide and “trial by ambush.” Despite numerous efforts over the years, the last meaningful change to our discovery law was three and a half decades ago.
But there is reason for hope. Several district attorney offices have experimented with procedures, both formal and informal, for breaking the discovery logjam, in some jurisdictions adopting an “open file discovery” policy that allows discoverable information to flow freely to defense counsel on a rolling basis, and in others exchanging open disclosure for waiving written motion practice and hearings. Some jurisdictions have dispensed with the time-consuming formality of requiring written motions to request evidentiary hearings.
It is essential that the five district attorneys examine each other’s results and settle on some uniform system of “best practices,” based on the two fundamental questions identified in a 2006 report of the New York County Lawyers’ Association, “Discovery In New York Criminal Courts”­—timing (when will discovery be exchanged), and form (must discovery await a written request).
Finally, and also exhaustively examined elsewhere, New York’s ‘ready rule’ version of the ‘speedy trial’ requirement has to be tightened to avoid some of its more absurd applications. A declaration of readiness to proceed to trial despite any real ability to do so—sometimes announced at arraignment, sometimes submitted in writing mere days after declaring being unready in open court so as to “stop the clock” during long adjournments­—allows avenues for gamesmanship that obscure the underlying judicial resources crisis and, frankly, do our justice system no credit. Judges already have the authority to probe these readiness declarations to at least weed out the more questionable ones. The judiciary should consider administrative rules and training that guide judges toward fulfilling this responsibility, similar to former Chief Judge Jonathan Lippman’s approach in 2015 to improve the proper application of the state’s existing bail statute.
The city Criminal Court’s speedy trial problems are not unresolvable. Recent collaborations among the mayor, the City Council, the police department, the courts, prosecutors and legal services providers have paved the way for improvements to our summons court (a separate part of Criminal Court where most quality-of-life offenses are heard), bail system, and the speedy trial crisis affecting the city’s longest pending Supreme Court felony cases (the “Justice Reboot” initiative targets felony cases pending longer than a year where the defendant is detained on Rikers Island). Our Criminal Court is likewise deserving of our attention, and likewise capable of being reformed.