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As Reform Stalls in New York, Defendants Plead Out Because They Can’t Afford Cash Bail

As Reform Stalls in New York, Defendants Plead Out Because They Can’t Afford Cash Bail

At the beginning of the year, New York Governor Andrew Cuomo laid out a plan that would eliminate cash bail for those charged with misdemeanors and nonviolent felonies. Last week, however, his plan stalled out during budget negotiations with state legislative leaders. For bail reform advocates, including public defenders and advocates for incarcerated people, the plan’s failure serves as a bitter reminder of how difficult it is to eliminate cash bail, despite overwhelming support to do so.

In the month leading up to budget negotiations, advocates organized a series of rallies highlighting the cascading consequences of cash bail, from plea deals taken by innocent defendants who can’t afford to wait for a trial, to dangerously crowded jails filled with those who didn’t have enough money to purchase their freedom. So, the Legal Aid Society, a New York City-based not-for-profit organization providing free legal services to low-income individuals and families, has been collecting stories of defendants held on cash bail who have taken plea deals even while they maintain their innocence so that they can be released from jail.

“The courts put you in a circumstance where the offer they’ll put before you, weather [sic] evidence proves you innocent or not, will be an offer that automatically allows you to once more be free to return back to your family & loved ones,” wrote one defendant, identified as W.F., who took a plea deal in 2017, in a letter provided to The Appeal by Legal Aid.

“So for that you’ll just bite the bullet & go with the best offer for a plea of guilty, even if knowing your [sic]innocent.”

W.F. further explained his predicament — “I’m a father of 4, an[d] only collect SSI Disability,” and that, with a bail set at $25,000, “there’s no way I could afford to take that money out of my kid’s mouth and still consider myself a decent man who will put his kids & their well-being first.”

W.F.’s story is indicative of a system that punishes the poor and favors prosecutors at every turn. Without using high cash bail as leverage, prosecutors would have to take many more cases to trial — more than 98 percent of felony arrests that end in convictions occur through a guilty plea, not a trial — and be obligated to provide tangible evidence against defendants.

“While I was fighting my case, I felt like I never had a chance,” wrote R.I., a defendant whose family raised money for over one year to bail him out. “The state was upset that I raised enough money to bail out. They were trying everything in their power to get the judge to take my bail away. I just couldn’t understand why they would do that.” The problem, wrote another defendant named T.S., has “always been a system where bails are set as ransoms, so not to allow people back into society.”

In recent weeks, both the New York City Bar Association and the State Justice Task Force, which was tasked with reducing wrongful convictions in the state, have come out in favor of Cuomo’s bail reform proposals. The District Attorneys Association of the State of New York (DAASNY), on the other hand, opposed any proposal in the budget to end cash bail, citing the “realities of human behavior” and “how the criminal mind operates.”

With a bipartisan bill aimed at getting states to reform their bail systems introduced in the U.S. Senate last summer, and several other states, like neighboring New Jersey, already having eliminated almost all cash bail, New York’s failure to act seems out of step with the rest of the country. Perhaps unsurprisingly, gubernatorial candidate and frequent Cuomo critic Cynthia Nixon recently said, “We need to end cash bail in New York.”

Tina Luongo, Attorney-In-Charge of the Criminal Defense Practice at the Legal Aid Society, said in a statement that Legal Aid will continue to pursue bail reform and other much-needed reforms through the regular legislative process. “Today, tomorrow, and for the indefinite future, people of color will continue to bear the brunt of a disparate criminal justice system simply because Albany decided to put politics ahead of the people, and money ahead of justice,” Luongo said. “We are not done fighting, and we call on the Legislature to advance these key reform issues through standalone legislation by the end of session.”

But advocates for the status quo—like prosecutors—which needlessly incarcerates thousands of poor people every day, have always found a home in Albany, where cynicism and backroom-dealing reigns supreme.

As Deadline Approaches for Homeless Ex-Offenders in Florida, County Threatens to Jail Them

A homeless encampment in Pinellas County, FL
Tom Stovall / Flickr CC BY-SA 2.0

As Deadline Approaches for Homeless Ex-Offenders in Florida, County Threatens to Jail Them

A few miles from Miami International Airport, outside of Hialeah, sits a tent camp of about 280 homeless people. There’s no electricity or running water and no bathrooms. News reports describe the stench of human waste and garbage, tents that flood when it rains, and flies, mosquitoes, and rats infesting the area. “Animals live better than this,” one resident told a reporter.

He and the others there are on the state sex offender registry. Miami-Dade County laws make it almost impossible for them to find places to live and bar homeless shelters from taking them in. For many registrants, the encampment has been a last resort, but in January, county leaders passed a new rule that makes them subject to arrest if they don’t find housing by May 7.

The person most responsible for the camp’s existence may be state lobbyist Ron Book. In 1996, he and his wife hired Waldina Flores as a nanny for their three children in their home outside Fort Lauderdale. Over the course of six years, Flores sexually and physically abused their oldest child, Lauren. Lauren Book eventually told a psychiatrist, and Flores was arrested and ultimately sentenced to 25 years in prison.

Lauren Book went on to found a nonprofit that promotes sexual abuse prevention, of which Ron Book is the chair; Lauren is now a Florida state senator. But Ron Book also lobbied for new laws. In 2005, he helped convince Miami Beach to pass an ordinance that bans people on sex offender registries from living within 2,500 feet of a school, a rule later adopted countywide. State legislators earlier had passed a law barring registrants from living within 1,000 feet of day care centers, parks, playgrounds, and schools.

In combination, those policies left only tiny patches where Miami-Dade registrants could live. By 2007, news reports were describing people with sex-crime records living under the Julia Tuttle Causeway, some literally dropped off there by their probation officers. In 2010, a spate of negative news stories forced the county to shut down that encampment.

Book has been at the center of this debate for years, as both an advocate for the restrictions and as chair of the Miami-Dade County Homeless Trust, the lead body for implementing county plans for solving homelessness. After the Julia Tuttle camp closure, he used the proceeds of local food and beverage taxes to find short-term housing in a trailer park and hotels for some of the homeless people. But when that money ran out and the the trailer park was found to be too close to a school, the registrants were out on the streets again. In March 2014, the Miami New Times reported that 57 men were living at the Hialeah encampment, and its numbers have since more than quadrupled.

A 2013 study in the journal Criminal Justice Policy Review found that only 4 percent of Miami-Dade county residences were outside a ban zone, and only 1 percent of legal residences rented for $1,250 a month or less. Registrants in the county are more than 50 times as likely as those in the general population to be homeless, the researchers found. Many of the people living in the encampment have family members who would take them in, but their homes are off-limits, says Jeanne Baker, legal panel chair of the ACLU’s greater Miami chapter.

Take Jeff*, convicted in 2004 of viewing child pornography. (He doesn’t want his real name used for fear of jeopardizing his housing and job situations, and putting himself at risk of vigilante attacks.) “I remember looking at stuff on the internet for reasons that I can’t justify,” he told The Appeal. “I didn’t realize that you can go to jail for looking at something on the internet. I should have known better.”

He spent three years in federal prison and got out in 2007. He wanted to return to the house he and his wife owned in Miami-Dade, he said. But his release plan was denied because the 2005 law — passed after his conviction — put it in a no-go zone. Jeff’s parents would have been happy to house him too, but their home was also off-limits.

Jeff said he looked for months. The few places that were outside a residency zone turned him down once they found out he was on the registry. Finally, an old college friend who lived in a remote area rented him a room. That worked for five years until the friend had enough of roommate living. After another futile search, Jeff left for a nearby county in 2012.

“I know so many [registrants] who are homeless,” he said. “I had plenty of money and strong family support. If not for that, I’d likely be out there with them.”

Ironically, registrants like Jeff who are looking for housing depend on Book for help, given his role as the Trust’s chair. When unflattering stories on the Hialeah encampment emerged last summer, Book and other officials promised to shut it down by offering residents other housing. But those who can’t or won’t move will be subject to arrest.

It’s already illegal to camp overnight on county property. Violators can be arrested, though police have to offer them the chance to go to a shelter. Since area shelters don’t take registrants, however, they had been allowed to stay in the encampment. But in January, in an effort to abolish the encampment, the county commissioners eliminated the requirement to offer registrants shelter, so those in the encampment have until the May 7 deadline to relocate or face arrest. In the interim, the county has promised to bring in portable toilets, handwashing stations, and garbage cans to partially remediate conditions. (The county commissioner who drafted the rule didn’t respond to multiple requests for comment on the new policy, nor did the county mayor’s office. A spokesperson for the county police director declined an interview request.)

Book says the people in the encampment need to take more initiative to find housing. Trust staff have visited the encampment to tell them about available housing assistance, he said. “We’ve told folks repeatedly, ‘You gotta jump on it — our staff is available to respond to you,’” he told The Appeal. “There are places they can live.”

But the “Housing Search Tool for Homeless Sex Offenders” on the Trust’s website contradicts that claim. The tool lets registrants plug in an address to check whether it’s in a banned zone. Of 20 randomly selected apartments under $1,100 selected from and entered into the search tool, none fell outside a restricted zone. ($1,100 is the cutoff for what’s considered affordable for a Miami-Dade resident with the county annual median income of about $44,000.)

Presented with those results, Book blamed the local housing market and said the state legislature needs to appropriate money to house registrants away from the population, which he said he’s advocated for.

But he rejects the most obvious fix — getting rid of the 2,500-foot residency restriction. An October 2014 National Criminal Justice Association review of available research on these types of policies notes that “there is no empirical support for the effectiveness of residence restrictions.” Their unintended consequences — “loss of housing, loss of support systems, and financial hardship … may aggravate rather than mitigate offender risk,” the researchers concluded.

Book isn’t convinced. “You’re not going to get me to ever say that residency restrictions are not appropriate,” he told The Appeal. “Just because there’s no study, no data [to show that they work], you’ve got to use some level of common sense…. And common sense tells me that I shouldn’t think it’s OK to have predators and offenders living in close proximity to schools, parks, playgrounds, daycare centers, and the like.”

But Gail Colletta, president of the Florida Action Committee, which advocates for reforming state and local sex-offense laws, says Book’s support of residency restrictions is misguided. “The situation with his daughter is very sad, but he pushes a lot of legislation that’s counterproductive to public safety,” she said. “People need to be with family, they need to have jobs, and they need to have a roof over their head.”

A glimmer of hope for activists like Colletta arrived on March 26 when a judge in neighboring Broward County dismissed a case against two registrants who had violated a similar residency ordinance in the city of Fort Lauderdale. The ACLU helped the pair fight the charges based on the U.S. and state constitutions’ ex post facto clauses: Fort Lauderdale’s ordinance was enacted in 2007 after the two plaintiffs were convicted. The ACLU has filed a similar lawsuit in federal court against Miami-Dade County that’s set to go to trial in June, says Baker. Still, the win in Fort Lauderdale is narrow — it applies only to those convicted before the city ordinance was passed.

Around the country, places that wall off large swaths of housing from those with sex-crime records continue to get the same results: people living on the street. Homeless registrants in Orlando, in a county where residency restrictions average 2,500 feet, sometimes list the local Walmart as their permanent address, according to a news report last November. In October 2014, Milwaukee passed a similar ordinance and the number of homeless registrants promptly soared from 15 to 230 in less than two years, according to a Milwaukee Journal Sentinel analysis. In Indiana’s Boone County, a thousand-foot residency restriction led the sheriff to require six homeless registrants there to find permanent residences or pitch their tents on county jail property.

At least one Miami-Dade official seems desperate for an alternative solution as the May 7 deadline approaches. On the day the county issued it, Baker said county Deputy Mayor Maurice Kemp approached her. “Can the ACLU help with housing?” he reportedly asked. “No, I’m afraid we can’t,” she said. “We don’t do housing.”

*Not his real name.

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Exclusive: Leaked Police Interview Reveals Key Evidence That a Bronx Judge Has Barred in Upcoming Murder Trial

Brian Solano spent over two years on Rikers Island before a potentially exonerating NYPD video interview was disclosed to his defense attorney. But that video is now being excluded from his June trial.

Brian Solano
Simon Davis-Cohen

Exclusive: Leaked Police Interview Reveals Key Evidence That a Bronx Judge Has Barred in Upcoming Murder Trial

Brian Solano spent over two years on Rikers Island before a potentially exonerating NYPD video interview was disclosed to his defense attorney. But that video is now being excluded from his June trial.

Held for nearly three years on Rikers Island, 24-year-old Bronx man Brian Solano was set to go to trial on Monday on charges of second-degree murder in the December 2014 shooting death of Willie Lora. Lora was slain in the Bronx’s Mount Eden section and the trial of his alleged killer, Solano, was moved from Monday to June 25 because of a prosecutor’s medical issue. The case against Solano involves multiple allegations of prosecutor and police misconduct, including a videotaped NYPD interview of an alternate suspect that wasn’t disclosed to the defense until two years after it was recorded.

Prosecutors with the Bronx district attorney’s office did not disclose video of a key 2015 NYPD interview until April 2017. But the video, in which another man, Justis Colon, told cops that he possessed the murder weapon, was leaked to Solano’s private investigator Manuel Gomez and provided exclusively to The Appeal.

In the 2015 videotaped interview, two NYPD detectives interrogated Colon about a recent gun charge. He admitted to owning a black 9 mm gun for approximately eight to nine months prior to his arrest. Lora was murdered during this period, and ballistics tests conducted by the NYPD determined that Colon’s weapon, found about two miles from the crime scene in the Bronx, was indeed the one that was fired in the fatal shooting.

But prosecutors with the Bronx district attorney’s office did not formally offer to provide a copy of Colon’s videotaped interview to Solano’s defense counsel until a hearing on April 24, 2017 that was originally scheduled to be the start of his trial. Due process requires that disclosure of potentially exculpatory evidence material to guilt or innocence be made in sufficient time to permit the defendant to make effective use of that information at trial.

It is unclear whether the years-long delay occurred because police did not disclose the interview to the district attorney’s office or because prosecutors with the office did not disclose the footage to defense counsel. Thomas David Kapp, a former Bronx assistant district attorney who was initially assigned to the case, told The Appeal that he has no recollection of the police interview, which was recorded on Jan. 10, 2015, just prior to when the ballistics report regarding Colon’s weapon was disclosed to the defense.

“I don’t think it’s anything intentional,” said Kapp. “I can’t explain … I don’t remember hearing about a statement being taken. It’s possible the police never brought it to us. It’s all about relaying information and sometimes information chains break down, though I’m not saying that happened in this case.”

John Schoeffel, a staff attorney with New York’s Legal Aid Society, says that the DA office’s intentions are immaterial to its constitutional obligations; the delay, he says, presents a potential Brady violation because prosecutors are required by law to proactively seek out any materials in the state’s possession that could be favorable to the defense.

“The U.S. Supreme Court has held that prosecutors have an affirmative duty to learn about all Brady information within the knowledge of law enforcement agents in the case, and then to disclose it to the defense,” Schoeffel said in an email to The Appeal. “It’s not an excuse for a prosecutor to say ‘Only the police knew about this, I didn’t.’”

At the April 24, 2017 hearing, Assistant District Attorney Terry Gensler insisted that she told Solano’s defense attorney, Dawn Florio, about the interview “over the past couple of weeks.”

But at that same hearing, however, ADA Gensler requested that the defense be precluded from introducing evidence about Colon possessing the murder weapon at the time of the offense.

“The fact that this person indicated that he had had this gun during the time might mean many things,” Gensler told the court. “It could be a lie, it could be that he lent it to somebody else that lent it to the defendant, but it does not indicate that he was in fact there.” In her motion to exclude the issue of Colon’s gun, Gensler further argued that “gang members frequently share their weapons” and warned of a trial that would be “about the guilt or lack thereof of Justis Colon rather than Brian Solano.”

Solano’s attorney Florio countered that “someone else was arrested with the murder weapon” and that Colon “not only was arrested with the murder weapon but made a statement stating that it was his gun and that he had possessed that gun six to eight months prior to the arrest of himself with the gun and that was during that time period that this homicide had occurred.”

After the hearing, Solano’s private investigator Gomez interviewed Colon hundreds of miles from the Bronx at the Franklin Correctional Facility in Malone, New York. In a sworn affidavit provided to Gomez, Colon stated that a prosecutor with the Bronx district attorney’s office “tried to intimidate me and force me to switch my story that was on video to help the D.A [sic] win the case against Brian Sollano [sic] … I told her I’m not switching my story. She threatened me to link me to the case if I don’t help her out. I’m innocent I have nothing to do with that case. If I’m needed I will testify in court.”

At an Oct. 2, 2017 hearing, Gensler asked for and received a “cut slip” for Solano, authorizing his release but upholding his indictment. At the hearing, Gensler did not explain her rationale for requesting that Solano be freed, but did point to an unspecified subpoena meant to be served “on certain parties connected to the case.” Gomez says he believes that Gensler was referencing a subpoena “taped to his door” before Solano was actually discharged from prison. Solano’s attorney Florio, meanwhile, says that her client was freed because of prosecutors’ “witness problems.”

On October 24, the judge ruled that neither two police witnesses related to Colon’s gun case nor the NYPD’s 2015 interview of him could come in at trial. The judge said that in order to have allowed the videotape and the Colon-related witnesses into the trial, the defense would have had to demonstrate that Colon himself was the killer.

Soon afterward, Gomez says he handed over affidavits of two witnesses he interviewed who claimed detectives and prosecutors threatened them — and the case against Solano appeared to collapse. On November 6, Solano, who was just transferred to Downstate Correctional Facility in Fishkill, New York, was unexpectedly released. But the second-degree murder charges were not dropped and he still faces decades in prison.

“The CO came and he knocked on my cell, and he said pack up,” Solano told The Appeal“I thought they was playing a joke on me.” Solano walked out in his prison shirt and boots with just a Metro-North train ticket and $40 in hand.

Neither the Bronx district attorney’s office nor the NYPD have provided an official explanation for Solano’s release.

But just before Solano was freed, Gomez provided prosecutors with an affidavit from grand jury witness Noely Cistillo who claimed that an NYPD detective threatened that if she did not place herself at the crime scene, she would face 25 years to life in prison and only ever see her mother through a hole in the wall. “He was putting pressure on me to say that I was there, that I was involved, that I know who did it, when honestly I don’t know nothing about it,” Cistillo said in a Dec. 28, 2016 videotaped affidavit. “They kept telling me if I don’t tell the truth that I’m not going to see my mother…. And I just got scared, I was terrified. I didn’t know what to do, what to say, what to think.” Cistillo said she was held at the NYPD’s 44th Precinct in the Bronx for four to five hours while she was questioned; a few days later, she appeared before the grand jury where, she told Gomez in her affidavit, “they was putting words in my mouth.”

Brian Solano (seated) and Manuel Gomez review evidence in Solano’s case
Simon Davis-Cohen

Another witness named Alondra Alba Villar told Gomez that she was pressured by an NYPD detective and an ADA with the Bronx district attorney’s office to falsely implicate Solano in the Lora homicide. “I kept telling the Detective I don’t know I was high and I couldn’t see the face,” Villar said in an April 20, 2017 affidavit. “[The detective] just kept harassing me, to try to accuse somebody that I did not see.” Villar added that an ADA told her that if she did not cooperate with the state, “they was going make it a ‘hard way’ — that they was going to put me through court.”

Both Villar and Cistillo said that arresting officer Carlos Faulkner of the Bronx’s 44th Precinct was involved in the attempts to coerce them to make false statements in the case. Detective Faulkner is already the subject of an internal affairs investigation for his role in a botched 2012 manslaughter case in which the defendant, Enger Javier, was held at Rikers Island for a year despite evidence pointing to a different man as the killer. Faulker allegedly said that he didn’t investigate other suspects in the case because “we got the right Spic,” referring to Javier. The NYPD did not respond to The Appeal’s requests for comment regarding Faulkner.

“I just destroyed their entire case,” Gomez said of the affidavits he gave to Bronx prosecutors prior to Solano’s October 2017 release. “They realized they had no case.”

Solano’s saga is the latest in a series of cases in which prosecutors from the Bronx district attorney’s office and Bronx cops have been accused of misconduct. As The Appeal recently reported, two witnesses in the murder case against Robert Collazo, including the state’s only identifying witness, claimed an ADA pressured them to change their stories. And in the Javier case, his attorney claimed testimony from a key witness was coerced.

Both the Collazo and Solano cases also illustrate the failure of the Bronx district attorney’s office to fulfill DA Darcel Clark’s promises to limit case transfers between ADAs and expedite prosecutions to limit the time that defendants are held pre-trial.

Solano, for example, has appeared in the Bronx County Hall of Justice 32 times since entering his not guilty plea in December 2014 and his case has been handled by three separate ADAs. “Every court date, it was always an adjournment,” Solano told The Appeal“The DA would say they’re not ready [for trial]. I’ve been saying I was ready to go to trial since day one.”

When asked for comment, a spokesperson for the Bronx district attorney’s office said, “The original ADA left the office, as did the ADA to whom the case was reassigned, that is why a third ADA is handling the case.”

“It was bad,” Solano says of his time at Rikers. “I went through a lot. I got cut on my face, behind my ears. The correction officers [would say] ‘you’re a murderer,’ they were coming at me. Everything. ‘You going to do life, you never coming home.’”

More than three years after Lora’s murder, the judge in the case demanded that there be no further delays in the case. “I’m not going to embrace any excuses by either side on April 2nd,” Bronx Supreme Court Judge Steven Barrett said during a February 21 hearing. “The case is going to go to trial even if I have to do it myself without any attorneys.”

But when the trial was delayed again on April 2, Solano continued to insist on his innocence in the Lora murder and lamented, “The victim’s family still thinks I did it. So because of the DA, I’m in danger.”

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