I’ve just begun exploring the death of jury trials in criminal cases, and already I feel the need to make a course correction.  In my first post I noted that as much as trials are reported to be vanishing in federal courts, they are virtually extinct in the state-level courts that I call home.  I promised to have a look at who and what is responsible for that, beginning with criminal defense lawyers like me.  But the more I’ve reflected on the list of culprits, the more I’ve come to realize that I should begin with something else:  bail.

Bail kills trials like nothing else.

It’s important to talk about bail first, because the bail decision is always the first thing to happen in the criminal process and it is also the most momentous event of the entire case.  In short, bail kills trials because for a majority of people who are arraigned in a criminal court, bail equals jail.  People accused of stealing socks from Walmart, for example, generally don’t have a thousand dollars lying around in a jar labeled, “For Bail, Don’t Touch.”  And waiting in jail for the pretrial process to play out — conferences, motions, replies, decisions, hearings, more conferences — is such an emotionally painful and financially harmful experience that by the time a trial arrives, weeks or months later, most defendants are ready to wave the white flag of surrender.  I often have to bite my tongue when a judge asks my client, jailed since arraignment because she couldn’t afford to post her bail, “Have you been pressured or coerced into pleading guilty today?”  Because the real answer is:  Yes!  Of course!  But that truth can’t be spoken.  The judge would not accept that plea.  Instead, the defendant must promise through clenched teeth that her plea is the product of her perfectly free will, and not at all influenced by the choice between A) plead guilty, and go home today, or B) go back to jail and resume waiting for trial.  Very few people, in my experience, pick B when the jailhouse door is thrown open.

Bail (jail) causes the premature demise of criminal cases not just efficiently but on a mass scale, for two related reasons.  First, bail’s destructive power to force a plea is greater in cases involving less serious crimes.  In a murder case, for example, “plead today, go home today” is never an option.  The defendant might be offered a year or two off his sentence if he pleads, but the light at the end of that tunnel is a quarter-century away.  Bail in that scenario is not a coercive factor.  But for a person charged with the relatively trivial crime of giving a false name to the police or smoking marijuana in public (both punishable by up to three months in jail), bail might be the only factor worth talking about.  By pleading out fast instead of waiting in jail for trial, the defendant gives up any possible claim of innocence but may salvage a real chance to keep his apartment, his job, or even his family.  Second, “relatively trivial crimes” make up a majority of criminal cases.  Murders come along only once in a blue moon, thankfully, but pot gets smoked, windows get broken, and socks get stolen every day.  So, putting those two things together, the importance of bail is clear:  pretrial detention forces pleas most effectively with minor crimes, and minor crimes represent a large share of all cases.

I’ve argued before in this space that current bail practices work an injustice against all defendants, regardless of guilt or innocence.  And the problem appears even larger when one considers that by killing trials, bail also works an injustice on our democracy in general.  The good news is that there are increasingly urgent calls for state governments and local courts to reconsider the prevailing laws and attitudes surrounding pretrial detention.  In April, New York City rolled out an expanded supervised release program — funded in part by the District Attorney’s “asset forfeiture” jar! — allowing a threefold increase in the number of defendants at liberty while their cases are pending.  And just a few weeks ago, the federal Department of Justice took the side of a man suing a city in Georgia for setting bail he couldn’t afford, arguing that jailing defendants who can’t afford bail discriminates against the poor.

In my next post (for real):  A look at defense lawyers’ role in the death of the jury trial.

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Anybody foolish enough to heat his home with firewood, as I do, knows that Thoreau had it all wrong when he wrote that wood warms twice — once when split, and again when burned.  The real number is much higher.  By the time I’ve heaved, rolled, blocked, piled, split, stacked, unstacked, hauled, and burned my firewood, it has “warmed” me many times over, largely during the hottest days of the year when I would prefer to be lounging someplace air-conditioned with a cold beer.  But on the other hand, all those hours invested in wood heat offer plenty of fresh air, exercise, and precious time to think Deep Thoughts about pressing issues to discuss in, say, a blog about New York criminal law.  The Deep Thought that occupies me today:  the disappearance of the jury trial in American courtrooms.

The New York Times last week published an article, “Jury Trials Vanish, and Justice Is Served Behind Closed Doors,” describing trial juries going the way of the Woolly Mammoth.  The Times reported that the number of criminal trials last year in the Southern District, a prominent federal jurisdiction in Manhattan, was the lowest in twelve years.  The reasons cited, which I certainly believe, include harsh sentencing guidelines and mandatory minimum sentences that intimidate defendants into pleading guilty to avoid the risk of losing years of their lives to federal prison.  Several federal judges interviewed for the article expressed regret and concern that the impending extinction of jury trials is “hugely disappointing,” a blow to the “quality of justice,” and otherwise a total buzz kill making courthouses just no fun.

Huh?

Forgive my confusion.  You see, I practice criminal defense elsewhere.  In the courthouses I frequent, trials are considered the nuclear option, a last resort, open only in case of emergency.  When trials happen, people ask, “What went wrong?”  So it’s weird to my ears to hear anybody (other than a few fellow defense lawyers) say something nice about criminal jury trials.  Trials improve the quality of justice?  Trials are good for civic participation?  Trials are fun?  Be still, my heart.

I have no doubt that the same phenomenon reported in federal court — ballooning case loads, shrinking trial verdicts — is happening at the local level.  Consider a few statistics drawn from personal experience.  In Utica City Court’s traffic part, the court arraigns on average several jury-eligible traffic misdemeanors every business day.  These include Aggravated Unlicensed Operation, Operating with Suspended Registration, and Driving While Intoxicated.  Let’s use three as a rough estimate; I don’t have the actual figures at my fingertips, but I feel comfortable with that number.  (On Monday, for example, there will be four misdemeanor traffic arraignments, according to UCC’s online schedule.)  That means about 15 new criminal cases a week, maybe 750 a year.  I’ve been practicing there a little more than four years, so carry that out to 3,000.  Again, an estimate, but I suspect it’s a conservative one.  How many of those cases have gone to trial?  I would be surprised if the answer is more than five.  Yet hundreds of these defendants have spent time in jail in their cases, either held on bail or sentenced after pleading guilty.  And most of the rest have been punished with probation, community service, and hundreds or thousands of dollars in fines.  All without ever asking the State to prove its case.  Something’s wrong here, people.

I share, clearly, the view that the disappearance of trials is a bad thing for our system of criminal justice.  And if you, too, care about things like fairness, peace, security, and order, then you should care very passionately about the crumbling of the foundation of American justice.

Wait a minute, Stroble… aren’t you getting a little carried away?  I don’t think so.  The more I’ve thought about these questions — Why do we need trials?  Why is there such a strong resistance to them?  Why doesn’t anybody do them anymore? — the more I’ve realized that there are many causes of the death of the jury trial and every one of them represents either a flaw in the justice system or a failure to uphold one of its ideals.  We ought to talk about these causes, why they exist, and whether there’s anything that can be done.

And that’s what I’m going to do.  Beginning with my next post, and a hard look in the mirror at the first culprit:  the criminal defense lawyer.

Happy birthday, Miranda!  You are the U.S. Supreme Court decision, Miranda v. Arizona, that made famous the phrase, “You have the right to remain silent.”  You are 50 years old today.  Over the hill, but picking up speed!  Better over the hill than under it!  And… well, those are actually the only fiftieth-birthday jokes I know.

Your namesake is Ernesto Miranda, born 1941 in Arizona.  In his early twenties, Ernesto was accused of kidnapping and sexual assault.  After a trial by jury resulting in Ernesto’s conviction, the Supreme Court ordered a new trial because, it held, the police had violated Ernesto’s Constitutional rights by interrogating him without first advising him of his legal rights.  But while the rights you stand for, including the right to speak with a lawyer, would benefit countless people accused of crimes after your birth in 1966, your comfort to Ernesto himself was short-lived.  He was convicted again after a second trial, even without his confession, and spent five years in prison.  After his release, he sold autographed Miranda cards for a short time.  He died in 1976 from a stab wound he suffered in a bar fight.  According to lore, Ernesto’s killer invoked his Miranda rights and escaped conviction.

Though Miranda has been around a long time and almost everybody is familiar with its language, I often speak with defendants in criminal cases who misunderstand its reach.  I commonly hear, “The police arrested me but they didn’t read me my rights.  Shouldn’t the case be dismissed?”  In short, no.  As an initial matter, proving a Miranda violation can be tough.  Your lawyer first has to show that warnings were required at all, which depends on the answer to two questions:  did the police “interrogate” you, and were you “in custody” at the time?  The quotation marks are there because those two phrases in the Miranda context are heavily weighted with legal meaning.  Every case is different, and it may be difficult to show that your statement was the result of “custodial interrogation.”  For examples, a spontaneous confession or a statement made in your living room instead of the police station might be used against you even though Miranda warnings were never given.  Again, every case is different.

If a Miranda violation did happen — that is, you made an incriminating statement in response to police questioning while in their custody, without first being advised of your rights — then the remedy is not dismissal of the case but something more narrow.  Just like in Ernesto’s case, the statement (as well as any evidence discovered as a direct result of the statement, the so-called “fruit of the poisonous tree”) should be suppressed but the case can still go forward without it if there is enough evidence otherwise to support prosecution.  The Miranda rule therefore serves as an incentive to law enforcement to respect suspects’ rights and the presumption of innocence during interrogations, but it does not necessarily offer a “get out of jail free card” by itself.

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In the interest of tying up loose ends, I am returning to a topic I addressed in my last post.  You will recall (of course) that we were talking about the importance to every citizen of “knowing the law,” given that ignorance of it appears to be NO EXCUSE.  (I resisted an urge to tack on a MISTER just there.)  I finished that post by pointing you to an empty list of “Chapter Laws” for 2016:  the place where you would find this year’s amendments and updates to the existing laws, if only there were any.  Which, two months ago, there weren’t.

Today, that list has a few entries.  Surf back on over to the site I mentioned last time –  http://public.leginfo.state.ny.us – and click on “Lists,” then “Chapters.”  Now you will see that our intrepid legislators have passed a few bills this year.  Proof positive of your tax dollars at work!

Each bill that Governor Cuomo signs into law in a given year is assigned a “Chapter” number beginning with, well, Chapter 1.  (Vetoed bills live in ignominy under Lists/Veto Messages.  And you can read the Governor’s opinion of some successfully passed bills under Lists/Approval Messages.)

Each chapter is also linked back to its “Bill Number,” which was its given name when it was just a twinkling in a legislator’s eye.  Bills beginning with “S” were first introduced in the Senate, while “A”-prefixed bills began life in the Assembly.  Clicking on either a chapter or bill number will take you to details about the bill and its journey through the legislative process.

Bill numbers are a handy way to keep track of pending legislation.  Consider, for example, last year’s law designating the service dog as the official state dog of New York.  The website for our state Senate provides a reader-friendly view of that law’s history:  go to https://www.nysenate.gov, click “Legislation,” and search for “A2756”.  The top hit, from the 2015-2016 legislative session, tells the whole story of the service dog bill including a nifty diagram.  (As it happens, “service dog” was replaced by the broader term “working dog” in amended legislation passed just a couple of months later.)

Here’s a pending bill to keep an eye on:  S6341, a proposal to shift the costs of indigent criminal defense from New York’s sixty-two counties back to the state.  In addition to cost-shifting, the bill would create a state-wide requirement of Counsel at First Appearance.  (The Oneida County Public Defender has been piloting a CAFA program in Rome and Utica City Courts for about two years, with very positive results.)  This bill has a wide array of sponsors and the support of the State Association of Counties, but its future is uncertain.  What do you think about S6341?  The website above provides an option to get involved in the legislative process by making public comments; now is a great time to be heard, while this bill is in committee.

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Ok, stop me if you’ve heard this one:

“Ignorantia juris non excusat.”

Or, in English, “ignorance of the law is no excuse.”  The gist of this time-worn maxim is that a person accused of breaking the law cannot simply claim that he wasn’t aware that the law existed, or prohibited his conduct, and expect to be forgiven.  The original rationale behind the rule was probably two-fold:  first, because in early legal systems there were far fewer criminal offenses than today, forbidding universally-recognized bad acts (murder, theft), it would have been entirely reasonable to demand that average citizens know the law.  And second, the ignorantia juris  rule ensured that an otherwise guilty person could not escape the consequences of his criminal behavior by feigning ignorance.

Today, on the other hand, there are more ways to go to jail than there are professional Elvis impersonators in Reno.  (By a lot.)  And you probably haven’t heard of many of them.  Fraudulent Accosting, anyone?  Fortune Telling?  Criminal Possession of a Taximeter Accelerating Device?  Criminal Simulation?

Wait…  “criminal simulation”?  As defined in the Penal Law:  “With intent to defraud, mak[ing] or alter[ing] any object in such manner that it appears to have an antiquity, rarity, source or authorship which it does not in fact possess.”  Punishable by a year in jail!

Certainly in the brave age of criminal liability for “criminal simulation” and “jostling” (unnecessarily placing one’s hand in the proximity of a person’s handbag) we might expect some leeway for an ignorantia juris-type defense, right?  In fact, no.  The Penal Law remains quite clear that, absent extraordinary circumstances, ignorance of or misunderstanding the law is no defense.

So it’s on us, New Yorkers, to know the criminal law.  Fortunately, there’s help, which brings me (at last) to my Big Point:  anybody with an internet connection and a web browser has free, unlimited access to the entire body of laws of our great State.  Just head on over to http://public.leginfo.state.ny.us, click the menu item for “Laws,” then “Laws of New York,” and voila — you’re in.

You will see that New York’s Consolidated Laws are organized into topics, including the criminal law, criminal procedure, vehicle and traffic law, and more.  Almost a hundred, in total.  Within each topic, the laws are further organized into increasingly specific parts such as, well, Parts, Titles, and Articles.  The actual laws are buried deep down in the organizational hierarchy.  So, for example, a person pleading guilty to Aggravated Unlicensed Operation in the Second Degree is admitting a violation of (deep breath) subparagraph i of paragraph a of subdivision 2 of section five-hundred eleven of article twenty of title five of the vehicle and traffic law of the State of New York.

Finally, what about changes to the law?  Any time the legislative process results in a new, rescinded, or amended law, the change is reflected in a numbered “chapter” which is further distinguished by the year in which it was enacted.  For example, Chapter 432 of the Laws of 2015 amended the Criminal Procedure Law to require translation services for victims of domestic violence whose native language is not English.  These chapter amendments are also publicly listed on the website I linked above:  click “Lists,” then “Chapters.”  (You will note that as of February 5, no chapters have yet been signed into law for 2016.)

Good luck, and remember:  absolutely no jostling!

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We need to talk about the pot.  You know:  pot, weed, grass, the devil’s lettuce, marijuana.  (Or “marihuana,” as it’s somewhat oddly spelled in the Penal Law.)  Personally, I don’t partake.  In that respect, I share a simple philosophy best expressed by my wife — “Don’t Take the Pot!” — which she certainly practiced long before it was immortalized on YouTube by this guy.

Plenty of people do seem to take the pot, however, given the constant stream of marijuana-related violations and crimes flowing through Oneida County courts.  Generally these are minor possession (Unlawful Possession of Marijuana) and smoking-in-public (Criminal Possession of Marijuana) offenses, though occasionally one sees a more serious charge involving greater weight or even a sale.

Likely in recognition of 1) our country’s rapidly-evolving attitudes toward pot-taking and 2) the potentially harsh side-effects of a drug conviction, the Oneida County District Attorney has developed a “Diversion Program” offering a form of relief to defendants accused of marijuana-related crimes.  In a nutshell, if you meet program requirements and make a $50 donation to a local charity, your pot charge will be dismissed.  Sounds great!

But the devil is in the details.

Ordinarily I would applaud a defendant-friendly program that spares a person the fine and surcharges that often go with a UPM, not to mention the “collateral consequences” of reporting the conviction to actual or prospective employers, creditors, schools, and the government (for recipients of federal student loans).  But does the Marijuana Diversion Program (MDP) really improve upon another path to forgiveness that already exists under state law?

I’m talking about section 170.56 of the Criminal Procedure Law:  “Adjournment in Contemplation of Dismissal in Cases Involving Mari[j]uana,” last amended in 1977 when “Star Wars” was still just “Star Wars.”  Under that law, a person charged with a qualifying marijuana offense can obtain the equivalent of a complete dismissal just for asking nicely in court.  We ought to look more closely, then, at the District Attorney’s donate-and-dismiss plan.

To qualify for MDP, a defendant needs a number of stars to align.  Only first-time offenders, with no prior criminal records and no pending weapons or other controlled substance charges, are eligible.  Past MDP relief is a disqualifier.  There are a number of other deal-breakers:  possessing more than 25 grams (the equivalent of five U.S. nickels); possession with an intent to sell; and, contemporaneous possession of “a large amount of U.S. currency” without a documented source.  If all of those hurdles are cleared, there’s also the matter of the $50 charitable donation that is essentially the price of admission.

In truth, most defendants who qualify for the District Attorney’s program will also qualify for statutory relief under the 1977 law, without having to pay for the privilege.  That law is actually more permissive with respect to weights (by a large margin) and eligible offenses (including low-level sales).  Judges are authorized to “adjourn in contemplation of dismissal” (ACD), or even to completely dismiss, cases involving possession of up to eight ounces of marijuana — 225 grams! — as well as charges of selling — selling! — marijuana up to 25 grams.  All for the low, low cost of absolutely free.

To be fair, there may well be situations in which a court declines to award its (discretionary) relief to an otherwise eligible defendant, leaving MDP to save the day — assuming the Assistant District Attorney handling the case disagrees with the judge’s view.  But a person facing low-level marijuana charges in Oneida County would be wise to inquire about a free ACD or even a complete dismissal before agreeing to pay for identical relief.

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If you or a friend are accused of Driving While Intoxicated on “per se” or “statutory” grounds — that is, after registering .08% or more in a blood-alcohol content (BAC) test — then I have two tips that I hope will help the first court appearance go smoothly. First, don’t drive your car to court; and second, take with you some paperwork describing your job, medical appointments, and school attendance.

Both of these suggestions arise from New York’s so-called “prompt suspension law,” which requires that a judge suspend the driving privileges of a per-se-DWI defendant while the case is pending in court. (Vehicle and Traffic Law section 1193, subdivision 2, paragraph e, subparagraph 7(a), in case you were interested!) Because the suspension is designed to be “prompt,” it will occur at arraignment; the judge will note the BAC factor, and then will ask you literally to hand over your physical driver’s license. If your car is sitting outside in the courthouse parking lot at this point, there are four not-so-appealing ways to get it home: ask the judge nicely for permission to drive home, which may be stretching the court’s authority (see below); call a generous friend or family member to retrieve you and the car; surrender the car to a tow truck; or, drive it home illegally and risk going to jail (which I strenuously do not recommend, for the record). Better just to leave the car home from the start, and arrange a ride to and from court.

If the judge does take your license under the prompt suspension law, you have a right to request a hardship license. The law allows the court to grant a special driving privilege for three limited purposes — work, necessary medical treatment, and school — in cases of “extreme hardship.” Exactly what is extreme is within the eye of the beholding judge, but common factors are the necessity of driving, the availability of public transportation, the distance and frequency of travel, and the presence of household members with valid licenses. Strictly speaking, the court is not allowed to issue a hardship license solely on the testimony of the defendant; this is where it helps to bring to court some documentation about the name and address of your employer, doctor, and school. Of course, the judge may also take “judicial notice” of any known or obvious factors, such as local geography, economic factors, and transportation schedules, to satisfy the requirement of other evidence.

DWI: Day One can be an entirely unpleasant experience; these tips may ease the pain. The best advice of all, however, is to appear with a good lawyer by your side. If you don’t qualify for assigned counsel, your local bar association may be able to suggest a list of qualified attorneys.

I don’t handle many traffic infractions in my line of work.  Not because I choose not to stand up for my fellow lead-footed, red-light-running, texting-and-driving Americans, but because the law won’t let me:  as a public defender, I am limited by the County Law to representing people charged with “crimes,” a term that excludes traffic infractions by definition.  (Traffic misdemeanors, like aggravated unlicensed operation and DWI, are a different story.)

But while I can’t defend most traffic cases, I have observed a fair number of traffic trials by virtue of working in an office adjacent to the traffic courtroom in Utica.  (And, I have been known to stay at a Holiday Inn Express from time to time.)  Provided below, therefore, are some friendly pointers for those of you who take your tickets to trial.

1.  It’s an Uphill Battle.  I’m just keeping it real, people.  My (admittedly, unscientific) empirical observations suggest that most people who fight their traffic tickets at trial end up being found guilty.  I can think of a few reasons for that.  For one thing, law enforcement generally does a good job selecting and documenting their traffic stops.  Many close calls, with debatable facts and circumstances, end up benefitting from a “roadside reduction” at the officer’s discretion.  When cases do get to court, the resulting traffic trials usually pit the average person versus a police officer (a trained, experienced witness) and a prosecutor (a trained, experienced attorney).  And, the ticketed driver is usually unfamiliar with the trial process, rules of evidence, and the elements of the offense (more on that in a moment).  Put all of that together and it’s clear that even with the most patient and accommodating judge, the playing field favors the prosecution in most cases.  I don’t like being a wet blanket, but it’s best that you go into this with the right expectations.  Which brings me to my next point….

2.  Don’t Litigate Angry.  Too often I see people fighting their traffic tickets with a motivating sense of indignation over having been “singled out” by the police, but without having a level-headed game plan for winning on the facts and the law.  When it comes to the question of guilt or innocence, what will matter to the judge is whether the testimony provided proof beyond a reasonable doubt of each element of the charge — not whether the ticketing officer was impolite, or failed to notice another driver’s infraction, or could have given a warning but chose to write a ticket instead.

3.  Know the Law.  Behind every ticket is a law — that is, the statutory definition of the offense that the police claim has occurred.  At trial, the judge’s job is to take the facts that she accepts as proven by the evidence and apply them to the law behind the ticket.  If all the elements of the offense are present, then her verdict will be guilty; otherwise, you win.  Knowing the elements of the offense that you’re accused of, therefore, is crucial.

Fortunately, the New York legislature provides a free, on-line version of the Vehicle and Traffic Law (and every other chapter of the state’s laws) for public use.  Just go to this website, click “Laws of New York” from the “Laws” menu item, and then click “VAT.”  Once there, navigate to the section defining the offense on your ticket.  For example, if you’re charged with speeding, the offense may be identified as an “1180(b).”  That designation refers to section 1180, subdivision (b) of the V&T, which prohibits speeds over 55 MPH on certain roads.

4.  Know Your (Simple) Defense.  Once you know the law, you can tailor your defense based on the circumstances of the case.  It’s usually best to take a simple approach and focus the judge’s attention on the strongest feature of your defense (that is, the weakest point in the prosecution’s case).  Remember, the People have to prove every element of the offense to win a conviction, while the defendant can cast reasonable doubt on only a single element to earn an acquittal.  If you’re planning to go toe-to-toe with the ticketing officer on a pure question of observation, your best bet is to have some backup in the form of a (preferably unbiased) witness, photos, or video.  In the alternative, try to draw attention to factors like weather, time of day, sun angle, visual obstacles, and other potential barriers to accurate observation.  Above all, avoid the unsupported “nuh uh” defense — as in, “Police: I observed Mr. Smith fail to reach a complete stop before entering the intersection.  Mr. Smith:  Nuh uh!”

5. Know the Process. Representing yourself in court can be stressful. You’ll be better able to focus on the task at hand, instead of your nerves, if you know what to expect during your trial. Check out this resource from the New York State Unified Court System for a useful primer.

6.  Consider Hiring a Lawyer.  If it’s only the risk of a fine and a surcharge that’s on the line, going it alone might be a perfectly reasonable choice.  But in some cases, more consequences could result from a traffic conviction than meet the eye:  for example, a third speeding violation in 18 months triggers mandatory license revocation (i.e., cancellation); picking up six or more points in 18 months will lead to an additional monetary penalty through the DMV; and, 11 or more points will lead to license suspension.  Many other pitfalls await the unwary. A lawyer can identify them, and also prepare a robust defense for trial.

Good luck!

Mayor Bill de Blasio is following up on his commitment from earlier this year to review New York City’s pretrial detention process for low-level offenders, hot on the heels of Chief Judge Jonathan Lippman’s announcement this month of his own pilot program for bail reform.  The Mayor’s approach is somewhat less forward-leaning, as he seems content for now to gather and examine data in a “Bail Lab” (no, really, it’s called that) before implementing change, in order to avoid a “whack-a-mole” approach to reform.  The public is invited to crowdsource ideas at the Bail Lab’s website:  www.bail-lab.nyc.  Open question:  do Bail Lab experimenters wear lab coats, and if so, why?

The Albany Times-Union, meanwhile, is reporting that certain features of Judge Lippmann’s program will not be limited to New York City.  Specifically, two innovations — mandatory judicial review of bail decisions in felony cases every ninety days, and electronic monitoring as an alternative to cash bail in misdemeanor cases — will be tested in other areas of the state.

I’ll be interested to hear more about electronic monitoring in the pretrial context.  Here in Oneida County, the Probation Department has ankle bracelet technology for its “domicile restriction” program — house arrest — but it is not GPS-enabled.  Instead, the bracelet relies on radio signals and a hardwired “land line” telephone to monitor the restricted person’s approximate location.  Most of my clients don’t even have house phones any more; in my cases that lead to house arrest, sentencing is often delayed a few weeks while the defendant contacts the telephone company to have a land line installed.  Electronic monitoring in pretrial situations — that is, ankle bracelets instead of bail — will need to rely on more advanced equipment than the County’s present 1990s-era technology if the program is to be less punishment-oriented and more a form of remotely supervised recognizance.

Hey, I like that:  “RSR.”  It kind of rolls off the tongue, doesn’t it?

I’m encouraged by this week’s announcement from our state’s Chief Judge, Jonathan Lippman, of new measures planned for New York City to reduce the number of criminal defendants, many charged with only minor crimes, who are forced to await trial in jail because they cannot afford to bail out.  The pilot program will include, among other things, a mandatory review of cases where defendants remain jailed after arraignment to determine if the initial bail decision, often made hastily and with incomplete information, stands up to scrutiny.

I am also intrigued by Judge Lippman’s order to judges in felony cases to regularly review the strength of the prosecutor’s evidence, including the availability and attitudes of key witnesses, and reduce bail if appropriate.  There is a specific list of factors in New York’s bail statute that judges are supposed to consider when fixing the amount of bail, and one of them is “the weight of the evidence against [the defendant] in the pending criminal action and any other factor indicating probability or improbability of conviction.”  Of all the bail factors, “weight of the evidence” is the one that is usually (1) least known to the judge at the moment of arraignment — consider that the defendant isn’t allowed to speak to the facts at his first appearance, and that the charging documents present only the one-sided perspective of the police or the complainant seeking conviction — and (2) most likely to evolve over time as the defense and prosecution dig into the details.  Yet bail is generally fixed at arraignment and rarely changes over the lifetime of the case.

In my opinion, a regular “weight of the evidence” conference should be judicially mandated not only for felonies but also for misdemeanors, and not only for defendants in pretrial detention but also for those who are at liberty awaiting trial.  Too often I see minor crimes languish on the court’s trial calendar for six, twelve, even eighteen months with no real attention given to whether the evidence and witnesses remain solid.  There is usually a flurry of activity in the early weeks of the case, during the initial round of plea-bargaining, and then again in the final days leading up to trial.  But for long months in the middle, the case file collects dust as it works its way up the court’s waiting list.  Judges must hold prosecutors accountable for routinely reviewing their evidence and checking in with witnesses to guard against situations in which the parties learn in December that the case fell apart in May.