How Nassau County Courts Screw The Poor
Oct. 22, 2015 (Mimesis Law) — I began my legal career as a public defender at the Nassau County Legal Aid Society in Hempstead, Long Island. After two years of grinding under the most public defenderiest of conditions, my colleague and future “office wife” Renee Seman threw me a rope and pulled me to a public defender job at Brooklyn Defender Services. The transition wasn’t a far one, as Brooklyn and Nassau County share a border. But that line may as well be an iron curtain when it comes to one area in particular. Public defense.
When I arrived at BDS, the difference was amazing. It felt like when The Wizard of Oz transitioned from black and white to color. BDS was full of open doors and camaraderie. These attorneys had a fearless swagger born from incisive preparedness that led to victory more often than I had ever thought possible. The starkest contrast though, was the arraignment process.
Recently, the New York Times ran an article about Brooklyn arraignments. The Times reporter Nick Pinto followed Scott Hechinger, BDS public defender and co-founder of the Brooklyn Community Bail Fund. The article identified the many significant flaws in the Brooklyn arraignment process. I have argued, both here at Fault Lines and directly to the faces of numerous judges, that the single-greatest problem with arraignments is that it moves sentencing to the beginning of the criminal process. Bail is set upon words and fear, not evidence and law.
But while many are attempting to fix the cracks in New York City arraignments, just over the line into Nassau County, Long Island, an arraignment system operates with the primary goal of screwing over indigent defendants as early and often as possible.
Although the entire Nassau County court system favors the rich over the poor, the difference is most stark at that first court proceeding. The public defender begins an arraignment shift at 8 a.m. While the District Attorney staffs their side of the court sufficiently, the Nassau County Legal Aid attorney might be the only public defender in that courtroom for the entire day.* Basically, if anything needs to be done, the public defender does it or it doesn’t get done.
Upon arrival, the public defender is handed a list with the names of criminal defendants who must be arraigned that day along with some of the Penal Law charges each one is alleged to have violated. This is the totality of information the public defender receives before heading down to the basement cells to meet and interview his new clients.
The utterly ineffectual management at the Nassau County Legal Aid Society has not taken this lying down (more lounging with a slight, but still quite comfortable, incline). They have created a tool to assist their attorneys with the impossible task of interviewing upwards of 50 clients without any valuable information. A card.
The front of this card has numerous blanks for things like name, address, family information, prior record, etc. But, you might ask, what about the facts of the case, aren’t those important? Of course. That is why Nassau public defenders are taught to fold that little card in half and write this information on the back. They are not forbidden from writing below the fold, but it is discouraged.
If you think that needlessly withholding information from the public defender is terrible, don’t worry. It gets much worse. While New York City Legal Aid just won a hard fought injunction against Department of Correction cameras in Staten Island attorney-client interview booths, Nassau County does not even have booths. The defendants are packed into a single cell, or possibly two if it was a busy night. This creates an environment bereft of confidentiality but loaded with tension and noise.
The public defender calls out a name, that person approaches the bars, and the interview begins. In front of God, co-defendants, correction officers and everyone. It often goes like this:
Client: What am I charged with?
PD: Misdemeanor assault.
Client: Anything else?
PD: I have no idea.
Client: Are they saying I hit someone?
Client: Well, who is making the allegations?
PD: I have no idea.
Needless to say, beginning the attorney-client relationship this way does not foster a great deal of trust or confidence. Seeing no real alternative, the public defender powers through, cutting every interview short due to court-imposed time constraints. There is never a lack of heckling from the audience who spends bravado like currency in this impossible setting.
How could this get any worse? Like this. After the interviews are over (or time is up), the public defender races up to the courtroom and scrambles to call family and/or witnesses in the ten or so minutes he might have before the judge takes the bench. He is never able to get the word out to more than just a fraction of family members before the clock strikes twelve.
Once the judge takes the bench, the public defender grabs his stack of cards and heads to a half-wall box in the middle of the courtroom, just in case anyone needed a visual clue as to who the criminal (and his sleazy attorney) was. The bridge officer calls the first defendant’s name and he makes his way into the box to stand beside his attorney. Completely in defiance of reason and fairness, it is at this point, and never a moment sooner, that the defense attorney is handed a copy of the criminal complaint and his client’s rap sheet. Not all of the defendants. Just this one. Every criminal case begins with an ambush.
The next few moments are a hopelessly intense experience. Hopeless because Nassau judges are naturally predisposed to setting bail. Intense because there are so many things to do, and they all must be done simultaneously. The public defender must find the defendant’s card, read through the entire complaint, thumb through the rap sheet and try to piece together an effective argument for the defendant’s release. The defender must do all of this while the DA is telling the judge why she should set a ton of bail on your awful client.
There is no legitimate reason for any of this, unless you see placing the defendant and his public defender at the greatest possible disadvantage as a legitimate reason. Nassau judges are apparently too busy figuring out how many thousands of dollars bail they will set for minor misdemeanor charges to notice, let alone intervene.
Arraignment is one of the most important moments in a criminal case. Even if conducted under arguably adequate conditions (like in New York City), this front end mini-trial sends far too many presumptively (as well as factually) innocent people off to jail. When every opportunity is taken to place the indigent defendant’s attorney at a significant disadvantage (like in Nassau County), the results are staggering.
Don’t fool yourself into thinking that once the defendant is dragged through this Kafkaesque Nassau County arraignment that the remaining proceedings fall in line with notions of proper due process and fairness. After arraignment, indigent defendants are segregated into Legal Aid specific courtrooms, while their more wealthy counterparts enjoy the luxury of courtrooms and justice untouched by the poor.
Arraignment proceedings like the one in Nassau County ultimately serve two purposes. One, they make things as easy as possible for the prosecutors, judges and court staff. Two, they ensure that every indigent defendant gets a crystal clear message. If you want fairness in Nassau County, you’ve got to pay for it. If you can’t, our 1950’s style system of justice will make sure that you pay in every other way.
*During weekend arraignments, you are allowed to have another public defender work the shift with you. However, due to the pathetic people making the big decisions in the office, if two attorneys work the shift, they must split the measly per diem.