By Joseph Frumin

Law360 (September 13, 2020, 8:02 PM EDT )

Joseph Frumin

The pandemic has placed the criminal legal system in New York City in legal limbo. Trials and statutory speedy trial rights have been suspended leading to indefinite detention and a growing backlog of more than 39,200 cases.[1] For the past six months, however, courts have shifted most of their operations to remote proceedings.

These remote proceedings include, but are not limited to, preliminary hearings, pleas, sentencings, bail reviews, modifications to orders of protection, and general case conferences. While this shift has not been without its share of technological speed bumps, it has become clear that many court appearances can happen remotely.

Despite the immediate challenges this public health crisis poses, this legal limbo we find ourselves in is a moment of immense opportunity. Out of necessity, we are now equipped with the technological infrastructure to eventually have a significantly more humane, efficient and economically responsible court system.

If we maintain our new technology for remote proceedings, excuse appearances when unnecessary, reserve in-court appearances for proceedings that require it, and resume the speedy trial clock, we could easily address the growing backlog of cases (even if the pandemic continues for 18-plus months). This would simultaneously lift unnecessary and unfair burdens on those directly impacted by our criminal legal system, mostly low-income people of color while addressing the backlog of cases by allowing those cases that will eventually get dismissed speedy trial to do so.

A day in the life of a prepandemic New York City criminal courthouse will show how feasible it is to create drastic long-term positive improvements simply by accepting and subsuming our new capabilities into our permanent systemic structure.

In New York City, within 24 hours of an arrest a person either sees a judge or is given a desk appearance ticket to appear at a later date. At the first appearance a defendant is assigned an attorney and is notified of the charges against them. If they decide not to take a plea at the first appearance the case gets adjourned for additional appearances.

The subsequent court appearances take place in all-purpose parts. All boroughs have multiple all-purpose parts. These parts are large courtrooms that rarely conduct hearings or trials, instead they handle cases leading up to trial. Once a case is ready for trial it gets sent to a different courtroom, one of a handful of jury parts that are often already at capacity, causing many trials to be unnecessarily delayed.

Monday through Friday, these all-purpose parts would fill up with defendants waiting to see a judge. Defendants would wait from the early morning until the late afternoon with defense attorneys flowing in and out, locating their clients, then waiting in lengthy queues for all parties to appear before the judge. In addition to the defendants and their families, each courtroom required a judge, a court reporter, multiple assistant district attorneys, and multiple court officers.

There were four likely outcomes for a case heard in these courtrooms. First and most common, the appearance serves essentially as a status conference and the defendant is given a new court date upon which to return. Second, the defendant pleads guilty. Third, the case could be dismissed because either the prosecution decides they cannot prove the case beyond a reasonable doubt, they dismiss in the interests of justice, or, most commonly, the statutory speedy trial clock has run resulting in dismissal. Finally, and least likely, a case would be sent out to trial.

In 2019, according to the New York State Division of Criminal Justice Services:[2]

• For arrests where a misdemeanor was the top charge:

• 60.8% of cases were dismissed:

• 22.7% were by an "adjournment in contemplation of dismissal" (ACD), whereby a case is adjourned for a period of six-months and dismissed as long as there is no new arrest;

• 26.6% dismissed either by speedy trial, the prosecution decided they could not prove the case beyond a reasonable doubt, or the prosecution dismissed in the interest of justice;

• 11.5% the prosecution declined to prosecute.

• 37.7% resulted in conviction:

• 12% convicted of misdemeanor;

• 24% convicted for noncriminal or unknown.

• 4% of misdemeanor defendants went to jail or prison after conviction (including by guilty plea or conviction after trial).

• For arrests where a felony was the top charge:

• 44.7% of cases were dismissed:

• 8.6% by ACD;

• 27.5% dismissed either by speedy trial, the prosecution decided they could not prove the case beyond a reasonable doubt, or the prosecution dismissed in the interest of justice;

• 8.6% the prosecution declined to prosecute.

• 52.6% resulted in conviction:

• 12% convicted of felonies;

• 17% convicted of misdemeanors;

• 23.5% convicted of noncriminal or unknown.

• 15% of felony defendants went to jail or prison after conviction (including by guilty plea or conviction after trial).

• The overall percentage of cases that go to trial is said to be around 5%.[3]

Extrapolating from this data, if we were to remove people whose cases will get dismissed before trial from the courthouse cycle of adjournment following adjournment and reserve in-court appearances for when it is in fact needed (hearings, trials, pleas when necessary) we would reduce the in-court population for criminal court (misdemeanors) by approximately 90% and Supreme Court (felonies) by approximately 80%.

Now that we have the technology to conduct certain proceedings remotely, we can and should continue this process up until and only if an actual hearing and trial date is scheduled. There are few exceptions that require a defendant to be present (physically or remotely) at one of these proceedings. For example, if a judge needs to inform a defendant of something their counsel is not ethically positioned to do (i.e., explain a new order of protection).

If a defendant decides to plead guilty or accept an offer that does not involve jail time they may do so remotely (as we are currently doing). If a person chooses to plead guilty and accept jail time they would appear in court to do so.

Of course, if a defendant wishes to be present for routine procedural issues they have every right to be. However, requiring a defendant to appear when it is not necessary is a form of punishment and runs contrary to our professed devotion to the presumption of innocence as well as is an extremely inefficient process that often becomes coercive.

Notably, if a court wishes to supervise a defendant during the pendency of their case, a third-party entity already does so and reports to the court on compliance. Thus, requiring a defendant to physically go to court for the purposes of supervision is superfluous.

At this moment when our society is forced to have an awakening due to protests against white supremacy in all facets of American institutions, it is timely to point out not only structural issues in our legal system that impact communities of color, but also routine, bureaucratic processes that impact communities in insidious ways. Multiple, inefficient court proceedings take mostly poor and working-class people of color out of their communities, jobs and families. This results in lost wages at hourly jobs and often loss of employment altogether.

If a person cannot show up to court for one of these routine court appearances, they risk the issuance of a bench warrant and getting rearrested by the police. This is not an appropriate use of judicial or police time and energy and is certainly contrary to what communities across the country have been asking for.

Any interaction with police, the judicial system and broader criminal legal system is an opportunity for systemic racism and violence to occur. If we have the opportunity to minimize communities' interactions with these systems we should take advantage of it. This proposal is a modest way to limit these interactions and make real substantive improvements for those most impacted. Not to mention reducing costs in a system that has a dismissal rate of over 50% and reinvesting it back into communities.

Keeping all-purpose parts remote would also allow us to repurpose the space, the judges, the assistant district attorneys, the clerks, court reporters, and court officers to focus on hearings, trials, and the issues that require being in-person. Courts would be streamlined and able to handle cases more efficiently, keeping defendants employed while saving taxpayer dollars.

This is not a statement on when we should return to court for hearings and trials. Instead, this is a call to be forward-thinking. A request that we seize this moment to realign our judicial system with our principles.

The COVID-19 crisis did not create the inefficiencies that have contributed to the resulting court backlog. Rather it has revealed existing burdens in our system and steered us toward a more efficient and humane way to operate.

For many, the idea that the court is experiencing a backlog of cases is concerning. The reality is if we do right going forward we will be in a fine position to handle the caseload and would come out of this with a significantly better system than we ever had before.

---

Joseph Frumin is a staff attorney at The Legal Aid Society.

Disclosure: In July, The Legal Aid Society sued the New York State Office of Court Administration over criminal court reopenings, in Bronx Defenders et al. v. Office of Court Administration of the State of New York.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.nytimes.com/2020/06/22/nyregion/coronavirus-new-york-courts.html#:~:text=The%20coronavirus%20outbreak%20is%20putting,nearly%20a%20third%20%E2%80%94%20to%2039%2C200.

[2] https://www.criminaljustice.ny.gov/crimnet/ojsa/dispos/index.htm.

[3] https://www.nytimes.com/2020/06/22/nyregion/coronavirus-new-york-courts.html#:~:text=The%20coronavirus%20outbreak%20is%20putting,nearly%20a%20third%20%E2%80%94%20to%2039%2C200.

For a reprint of this article, please contact reprints@law360.com.