How Nassau County Poor Are Forced To Sign Away Their Rights
Oct. 28, 2015 (Mimesis Law) — Let me make something clear. For the most part, I detest grand juries. I have sat through more than enough to know that they are dirty, unfair proceedings, where a prosecutor rules supreme and the only goal is to get that indictment, justice be damned. But even an unfair grand jury is better than no grand jury at all.
As unfair as the typical grand jury is to a criminal defendant, the presence of a grand jury ensures that scores of defendants are not held indefinitely just because the government feels like holding them. New York law requires that the prosecutor obtain an indictment within 6 days (technically, 144 hours) of arraignment or the detained defendant walks. Sure, the grand jury will indict a ham sandwich. But at least it forces the prosecutor to bring in the ham and bread.
And that brings me back to one of my and Scott Greenfield’s recent target, Nassau County. Although the grand jury tends to be target practice for the prosecutor, I have seen what happens when a grand jury does not exist at all. With no grand jury, defendants who have been given absolutely no discovery or evidence must make an impossible choice: accept a bad plea offer from the prosecutor or sit in jail until that offer looks good.
In Nassau County, indigent defendants are forced to waive their rights to have their case presented to a grand jury. Not by law, mind you. They are forced by a completely legal procedure that coerces defendants into waiving that right as a prerequisite to plea negotiations. Although the law does allow a defendant to “consent” to waiving his rights to a grand jury, consent by threat should be considered no consent at all.
If you did not read my previous Fault Lines post, How Nassau County Courts Screw The Poor, then you might be surprised to learn that the Nassau County public defender’s office is a willing participant in this systemic violation of indigent defendants’ rights. The blame should fall nowhere near the shoulders of the overworked and underpaid public defenders in the office. They “consent” to this legal shell game in much the same way that their clients do, under threat of an even worse outcome.
I spoke with Julie Schaul, who currently works as a public defender in Brooklyn. She worked at Nassau County Legal Aid from 2010-2013. Julie, along with two unnamed sources, have confirmed that little has changed since I was there from 2005 to 2007. Last week, I talked about the absurd Nassau County arraignment system that seems designed to shove as many poor people into jail as possible. Once those people are there, if they are charged with a felony, then it is just another circus in Part 9L, which is how New York calls its courtrooms.
To fully understand the assembly line of injustice that has caused dust instead of witnesses to gather in Nassau’s decrepit grand jury rooms, it begins and ends in Part 9L. Every indigent felony defendant that comes through Nassau County’s court system has to pass through 9L.
The first 9L court date is two days after arraignments. The main purpose of this court date is to get all incarcerated clients to waive their right to be released if the DA does not obtain an indictment within 6 days, as well as their speedy trial rights under Criminal Procedure Law 30.30. This removes a lot of pressure from the DA’s office. Instead of abiding by the law and respecting the rights of incarcerated defendants, they can sit back, relax and put off doing their job until the defendant has spent some quality time in jail.
At that first court date, the DA also lets the public defenders know which clients are screwed and which clients are royally screwed. ‘Workups’ or ‘yellow & whites.’ Given the choice, a defendant wants to be a ‘workup.’ This means that he is still in the running for a misdemeanor offer or a low-level felony. A defendant who is tagged for a ‘Yellow & White’ has, for all intents and purposes, been indicted.
This indictment does not happen in the normal way that the law intended – with a majority vote after hearing evidence. No, it happens days later, at the Nassau jail. And it happens by the defendant’s own hand.
Those same 9L attorneys must begin their day at 8 a.m. at the county jail. They enter the jail with a stack of files and a stack of forms. The files correspond to the clients they are there to see. The forms are two attached papers, one yellow, one white (hence ‘yellow & whites’). The client conversation proceeds normally enough for an initial interview. The complaint is read through and the client gives his version of events. The problem is, this is not the initial interview. This is the third time this client has met with a public defender since being arrested. There is a good chance that each meeting was with a different attorney.
The ‘workup’ clients are told that they are probably looking at months instead of years, and that they will get more information on their next court date. The ‘yellow & white’ clients, though, are told that their future is fairly uncertain. The case can break this way or that way down the road, but for right now, they need to do something that ensures that their case is not destined for certain calamity. They must sign away another right.
The public defender explains to each client that while he has the right to have his case heard before the grand jury, should he choose to exercise that right, he will pay dearly.
“I was trained to get people to sign the ‘yellow & whites,’” Schaul told me. “I was told by my supervisors that if the client didn’t sign, it would be a disaster for them. But I actually had no idea what would happen to them because I had never been trained about what happened next.”
Nassau public defenders are trained to make this decision for the client. Schaul said that the few times she was not able to get the client to sign away his rights, a more senior attorney would go back to the jail to make sure the ‘yellow & white’ was signed. The entire goal, at the end of the day, is to get every yellow and white signed. Every time.
By the time Nassau Legal Aid is done with the felony client, they have lost many of the rights that might have given them a fighting chance. The guarantee that no indictment within 6 days means freedom. Gone. Only facing a felony if the DA can obtain an indictment from a grand jury. Gone. Speedy trial rights. Gone.
These are not forcibly ripped from the defendant’s possession. It is much worse than that. The client is told by his attorney (for that day at least) that signing that form is not only the right decision. It is the only decision.
That form does more than remove some of the defendant’s most important legal protection. It essentially hands an indictment to the DA. The threat of an eventual harsh penalty is immensely persuasive, and almost every single ‘yellow & white’ defendant signs those damn papers. A system tends to run more smoothly for the government when the rights of the citizens are stripped away.
Why would the public defenders go along with this? I was a 9L public defender out in Nassau County 8 or so years ago and I, much like Schaul and others, got hundreds and hundreds of clients to sign away their rights. I knew at the time that this was wrong, but I had no idea how wrong until I got out. Once I got to Brooklyn and experienced the grand jury process as the law intended, I understood the true damage. This was never to benefit the client. This was always to make other people’s jobs easier. And some of those people were my old bosses.
About those bosses. One day, on the way to Nassau County Jail, another attorney and I decided we were not going to continue this charade. We walked into 9L that day with a grand total of zero signed ‘yellow & whites.’ On our lunch break, we were summoned into our boss’s office (I’ll call him Rick, because that is his real name).
Rick: So, you did not get any yellow & whites signed? You can’t do that.
Us: Why not?
Rick: Because that’s not the way things are done.
Us: But the way things are done is not working for our clients.
Rick: [slow, knowing head shake to signify that the complexities of his position cannot and need not be explained] That’s not the way we do things. Get them signed.
We were willing to take heat from the DA’s and the judges, but the immediate betrayal from the top of our own office broke our spirit. We continued to fight like hell until we (like so many other good attorneys in that office) escaped. But those fights were on an individual level, and they were often futile within a system that was designed to beat down the public defender and his client.
Sadly nothing has changed. If anything, it has gotten worse. As Schaul recounted,
The morale out there was really low. A lot of people were leaving. The caseloads were really high. There was a really strong divide between the younger misdemeanor attorneys and the more senior felony attorneys.
The office ran on fear, and that came from the supervisors.
That fear has numerous attorneys at Nassau County Legal Aid Society hoping for change. Unfortunately for them, that fear is valid.
The same heads of that organization that have had a hand in creating this broken system are still there. So are the young public defenders getting chewed up and spit out. So are the ‘yellow & whites.’ Worst of all, so are the indigent defendants whose rights continue to get exchanged for convenience.