Friday, April 07, 2006

Criminal Injustice

Recent experience has prompted some reflection about the criminal process. This is sometimes called the criminal justice system, but the word justice is out of place.

What are some of the problems that stand out, in the eyes of this criminal defense lawyer?

In no particular order:

1. A systemic disregard for the rights of the accused. There are so many cases (and I'll probably discuss that below), and so many of us inside the system are so busy with all these cases, that the defendant can easily become just a number in our eyes. That's not right. These are flesh-and-blood people, with families who need them. It is not only prosecutors who become afflicted with this regard. I see it in defense lawyers, judges, police, and others involved. I even see it in myself at times.

2. Judicial bias. I could probably do a whole post just on this topic, but I'll mention it briefly here. In many courts, the judges spend a lot more time with the prosecutors and the local police than with defense lawyers or defendants. The typical local court is in the same building as the police station. The courtroom is guarded by local police. The judge sees the local police all the time. The prosecutor assigned to that court is there for every criminal session (but might not be there on traffic night). Even the most local of defense lawyers doesn't see the judge as much as the prosecutor. And the defendants are usually there for their first time. It would be inhuman for a judge not to begin to identify with the people that are with them all the time, guarding them, etc. We are fortunate that many judges are able to rise above this most of the time, but most show some vulnerability to this from time to time.

A great example of this is the initial bail hearing. I just had this on a case. I asked for release on recognizance (client would be let go without posting bail). The prosecutor (a particularly pleasant individual, by the way), said he would agree to $5000 bail if the defendant waived the preliminary hearing.

The purpose of bail is to ensure that the defendant appears at future court dates. If he doesn't appear, the bail money would be forfeited. If the prosecutor believes $5000 bail is adequate for that purpose, why should the defense need to waive a preliminary hearing?

Why is the prosecutor's opinion even relevant to the question of bail? The factors the Court is supposed to consider are listed in CPL 510.30. The prosecutor's opinion is not in there. The defendant's willingness to waive the preliminary hearing (an important procedural right) is also not in there.

Despite all of that, judges will often ask the DA for their bail recommendation. Not, by the way, their argument as to the factors underlying the bail decision, but simply for their position. The intrepid (or foolish) defense lawyer might then argue why the underlying factors suggest that the defendant should not have to post bail. On more than one occasion I've seen a local judge make facial expressions suggesting that such argument is not welcome. And then they'll set bail at what the DA recommended, making no findings of fact.

The real purpose of this process is to intimidate the defendant - first into waiving the preliminary hearing, and second into taking a deal. This is especially so if the defendant can't make bail. Now he/she is sitting in jail waiting for trial. In some cases the defendant will spend enough time in jail waiting for trial they'll end up taking a deal with time served. At that point, if there's any risk of conviction at all, the somewhat rational thing to do is take the deal. Even if the defendant makes bail, that $5000 or $10000 sitting there is money they need for their everyday existence. Most defendants are poor, and bail money is not easy to come by.

I should write more on this general topic of criminal injustice, but I'm running out of steam. More later perhaps.
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