Criminal “Justice” – New York Times series on local courts in New York

The New York Times did a series recently on local courts in New York State:

As a lawyer in New York State, I visit many local criminal courts on speeding tickets as well as for criminal defense. As a side business my brother and I are developing a directory of local traffic and criminal courts. I also practice in “higher” courts, such as County Court.

There are serious flaws in the system. I have seen many cases where judges, especially non-lawyer judges, disregarded their responsibility in ways that were detrimental to innocent defendants. The problem with the NY Times piece is that it assumes that lawyer judges in local courts, and judges in the higher courts are so much better.

There are certain realities. First, most judges do a very good job in most cases regardless of whether the judge is a lawyer or not. Second, while non-lawyer judges may sometimes know less about the law than lawyer judges, there are plenty of excellent non-lawyer judges and more than a few terrible judges who are lawyers.

In my opinion, anti-defendant bias is typical. This does not necessarily mean the judge is biased against the defendant directly. Often judges are biased in favor of the police or the prosecution, and this has an adverse impact against the defendant.

One of my favorite examples of this bias is the location of most local courts. More often than not they are housed in the same building as the police. The local police generally provide security for the local courts that have security. The prosecutor has an assigned room. The judges see the same police and the same prosecutor all the time. The defendant and often the defense attorney are both new to the Court and the judge is likely to have an inherent bias in favor of those he/she knows, and thus an effective bias against the defendant.

Many local judges are not affected by this bias, but for me it certainly bends toward an appearance of impropriety.

This problem is also not limited to the local town and village courts. Take Albany County. The DA’s office is in the same building as the County Court, where felonies are heard. The public defender’s office is in another building, perhaps a mile away. Private defense lawyers are not provided with an office. ADAs get a special ID tag that allows them to go through secure doors. I believe public defenders can get them, but I was told I couldn’t get one.

Albany City Court is another good example — and by the way I know all the judges in that court and have never felt that the judges allowed themselves to be affected by any such bias. The main courtroom has a big glass wall separating the area with the judge from everyone else. This appears to be for security purposes. Inside the wall is the judge, court clerks, one or two ADAs, a few police officers, and maybe someone from the public defender’s office who does the paperwork to see if someone is eligible for the public defender. Defendants and private attorneys sit outside the wall. I remember in one case I had a dispute about something with an ADA and he went inside the wall and talked to the judge where I couldn’t hear the conversation – but I did hear him mention the name of my client. I stood up to protest and was ordered to sit down and be quiet by the officer.

You also often see the prosecutors controlling the agenda (usually called the calendar) in the courtroom. They review the cases and then give the file to the court clerk who gives it to the judge to be called. I can’t understand why a court would allow one side to control the agenda like that. Most ADAs do not abuse this power, but why should they have that power anyway?

Fundamentally, what it all comes down to is that the so-called criminal justice system stinks. That is somewhat inevitable considering the problems that it addresses. And the solution is to remove as many things as possible from that system. Marijuana is a good example. There are nearly 2 million arrests a year for marijuana in the US. That places a tremendous burden on the system. Stop arresting people on marijuana charges and you remove a lot of pressure, making it easier for the courts to do better work on the cases that remain. Speeding tickets are mostly an unnecessary burden. It would be a huge relief to the system if a lot fewer tickets were written.

The criminal justice system should return to its focus on dealing with real criminals. Every time you hear a politician talk about how the system should be tougher on crime, what they’re really saying is they want to waste more of your money pursuing regular people who get dragged into an overwhelmed system.

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