Internal Documents Reveal How Bronx Prosecutors Are Taught to Slow Down Cases

The tactics outlined encourage courtroom ‘dishonesty’ and ‘gamesmanship,’ legal experts argue.

Internal Documents Reveal How Bronx Prosecutors Are Taught to Slow Down Cases

The tactics outlined encourage courtroom ‘dishonesty’ and ‘gamesmanship,’ legal experts argue.

In 2013, Ms. U*, a Bronx woman in her 40s, got into a scuffle with another resident in her building. The police, summoned by Ms. U, came about six hours later but made no arrests, and Ms. U thought that was the end of it. She had no prior criminal record and, according to a case dismissal motion filed by her attorney, her neighbor did not go to the hospital. Yet two weeks after the incident, police arrested Ms. U. Her charges, for allegedly grabbing her neighbor’s neck and hitting her on the left arm, resulted in a simple Class A misdemeanor that could have been resolved quickly. Instead, her case dragged on for three years until her defense attorney successfully moved to have the case dismissed.

The lengthy ordeal made life difficult for Ms. U. Not only did she have to make numerous court appointments and deal with the stress of a potential sentence, but she also had to abide by a court-mandated order of protection for her neighbor, who, according to court documents, would sometimes seek her out, thus putting Ms. U in danger of rearrest.

How does such a simple case go on for so long? Ms. U’s attorney says it was because Bronx prosecutors initially claimed they were ready for trial, but then at various intervals said they weren’t, which resulted in considerable delays between her hearings because of the Bronx’s clogged court calendar.

But internal training documents from the Bronx district attorney’s office, obtained by The Appeal, indicate that protracted cases like Ms. U’s are not simply the result of an overburdened court system. According to the documents, prosecutors are being taught courtroom techniques with the explicit goal of stretching out cases, thereby undermining defendants’ rights to a speedy trial.

The right to a speedy trial is enshrined in the Constitution’s Sixth Amendment, but how it’s enforced at the state level is largely left to courts and state law. Many states require that a court date occur within a certain time frame, or the case gets dismissed. But New York is different. In New York, this speedy-trial “clock” is pegged to how long prosecutors can take to get “ready” to proceed: 60 days for Class B misdemeanors like graffiti and petty larceny and 90 days for Class A misdemeanors like Ms. U’s.

In practice, however, prosecutors can choose to easily manipulate this system, delaying trials for a year or longer. The documents obtained by The Appeal show that Bronx prosecutors are taught a strategy of declaring “readiness” in misdemeanor arraignments, like Ms. U’s, with the explicit goal of stopping the speedy-trial clock. This readiness is often declared by the Bronx DA’s office before a lead prosecutor has even been assigned to the case, interviewed every witness, or gathered necessary documents. Then, often months later, prosecutors can repeatedly say they are not ready, requesting small delays (one week here, one week there), which lead to months-long adjournments because of the court’s packed schedule.

The training documents indicate that such tactics are institutionalized in the Bronx, and although it’s impossible to know how many defendants that affects, cases in the Bronx drag on longer than those anywhere else in the city. In 2016, it took on average 38 percent longer to reach trial verdicts in the Bronx than it did citywide. That translates into hundreds of extra days on average that the borough’s defendants have to endure the repercussions of ongoing criminal cases.

Law professors and public defenders who have reviewed the documents say these delay tactics keep people in jail and in court unnecessarily, incentivize innocent people to take plea deals, and encourage implicit dishonesty in the courtroom. Former Bronx prosecutors point out that these tactics are legal, and argue they are an unavoidable consequence of enormous caseloads and a system that invites such conduct.

“New York’s idea of a prosecutorial readiness law rather than a speedy trial law has no parallel,” Jocelyn Simonson, a professor at Brooklyn Law School, told The Appeal. “Pinning the statutory speedy-trial clock to the prosecutor rather than the court lets the court system itself off the hook for delay. And, perversely, it gives a prosecutor who wants to delay a case a tool with which to do so in many cases. It’s the worst of both worlds.”

‘The bane of our existence’

New York’s unusual speedy trial statute is a result of lobbying from the state’s district attorneys, explained Thomas O’Brien, a staff attorney at New York’s Legal Aid Society, the city’s largest public defenders organization. In the early 1970s, when state judges were considering rules that would dismiss certain cases after six months if they had not been brought to trial, the District Attorneys Association of New York launched a campaign to block the reforms. The association’s then-president, Bronx District Attorney Burton B. Roberts, claimed such measures would enable “legalized jailbreak.” Instead, they proposed that prosecutors have to be “ready” for trial before a defined deadline. In 1972, Governor Nelson A. Rockefeller, now notorious for the Rockefeller drug laws (which would pass the next year), helped pass a speedy trial statute in line with prosecutors’ demands.

But even New York’s relatively weak speedy-trial law is seen in the Bronx district attorney’s office as an obstacle to be overcome. It’s “the bane of our existence,” states one slide in the 2017 training presentation obtained by The Appeal. Bronx prosecutors’ “goal,” it says, is to “stop the clock,” referring to the time prosecutors have to get ready before charges get dismissed.

The presentation tells prosecutors that “at arraignments,” which take place on average less than 24 hours after an arrest, “we state ready and enter into a post-readiness posture.” At that point, the case has little to no chance of moving forward, explains Simonson of Brooklyn Law School, so there’s virtually no risk for prosecutors in stating that they are ready. Simonson says that when a prosecutor states “ready” at arraignment, “at best, it is a good faith statement that … the ADA is confident that she will have access to the witnesses and evidence she needs to prove the case weeks or months in the future. At worst, it is a disingenuous bluff put forward with the knowledge that she will never have to answer for it, since so few cases go to trial.” Regardless, this statement stops the clock that is supposed to tick away prosecutors’ allotted time for getting ready for trial. The slide goes on to urge prosecutors to “get that complaint converted,” meaning seek eyewitnesses’ sworn confirmations of the complaint’s veracity. Former Bronx prosecutors The Appeal spoke with said they interpret the law to mean that once a so-called complaint conversion was complete, they could declare readiness to proceed.

But defense attorneys disagree. While no state appeals court decisions have clearly prohibited the practice, they point to several trial court rulings that have found that complaint conversion alone is not sufficient, and prosecutors are supposed to have necessary witnesses and documents imminently available before declaring trial readiness. In People v. Beckett, for example, the court held that prosecutors should not have claimed to be ready for trial in a case where they had an eyewitness since they had not yet received results on a lab report for alleged marijuana possession.

The documents show that the Bronx district attorney’s office is “training prosecutors to engage in deception and gamesmanship,” Bennett Gershman, a law professor at Pace University and former Manhattan prosecutor, told The Appeal. “There could be a huge gap between making that conversion and actually being ready,” said Gershman, noting that the prosecutor at arraignment has likely not interviewed and fully vetted witnesses and obtained necessary documents. “I know they want to stop the speedy clock … but that doesn’t mean the end justifies the means.”

In fact, the presentation itself likens prosecutors’ “readiness” claims at court arraignments to a poker game. If a judge “threatens to send case out to trial” after the prosecutor has claimed they are ready, one slide says, the prosecutor should not “be distracted” and is told to “keep your poker game face on.”

“They know they’re not ready so they’ve got to maintain their poker game face. This is bluffing,” said Gershman, who says prosecutors in this situation often try to get the defense to say they aren’t ready (and thus stop the clock themselves) or scramble to get a plea or basic materials for a potential trial.

The presentation also reminds prosecutors that if they are not ready for trial at future hearings, there are yet more ways to slow down the court process. “If you are not ready, remember you will only be charged for the time you ask for,” the presentation reads. Therefore, the slide notes, prosecutors should ask for the “least, yet legitimate” amount of delay time, so that the limited number of speedy trial days available for prosecutors to try a case are not wasted.

Babe Howell, a professor at CUNY School of Law, said the documents indicate Bronx prosecutors are intentionally asking for unrealistic, short adjournments to ensure the speedy trial clock ticks down slowly. “They know that due to court congestion, if I say ‘I’m going to be ready in two days,’ the court is going to adjourn for six weeks.”

‘What do you mean you’re ready?’

The Bronx district attorney’s office, which has been plagued by scandals and accusations of prosecutorial misconduct under the leadership of Darcel Clark, declined The Appeal’s requests for an interview on this matter and said “no comment” in response to written questions.

The training documents confirm that tactics to stop the speedy-trial clock have become routine in the Bronx, argues O’Brien of Legal Aid, who reviewed the documents.

“I was surprised to see this on paper, but not that much because it’s consistent with what they do, and since these are new lawyers, you would expect they don’t do this on their own, they do this because they’re instructed to do so,” said O’Brien. “I’m not saying they can never say ‘ready’ at arraignments, but that would be an unusual case because most of the time these cases involve more than one witness and multiple documents.”

Jason Foy, a defense attorney and former Bronx assistant district attorney, agreed that these practices were questionable, but said prosecutors are just doing their jobs. “They’re just … stopping [the clock] early because they know problems could develop later.” But, he continues, when a prosecutor states “ready” at arraignment, it should be taken with a grain of salt, “because the case is less than 24 hours old, what do you mean you’re ready?”

Some former Bronx prosecutors acknowledge that feigning readiness and asking for the shortest adjournment possible is enabled by court congestion. One former prosecutor, who requested anonymity citing concerns over professional reprisal, said there’s little accountability because a judge is unlikely to scrutinize prosecutors’ claims of readiness or look into their subsequent requests for delays.

And if cases drag on, defendants have no real recourse under state law to protect their right to a speedy trial. That’s because a prosecutor being ready to go to trial and actually going to trial are not the same thing. Because the clock is pinned to prosecutors’ readiness rather than an actual court date, the Sixth Amendment right to a speedy trial is not being protected.

Legal practitioners on both sides of the courtroom say that structural and legal factors beyond this weak statute exacerbate the Bronx’s case delay crisis.

New York’s controversial discovery law, for instance, allows prosecutors to withhold evidence until the day of trial and interacts with the trial-readiness statute to further delay proceedings. The presentation points out that prosecutors “CAN be ready without having supplied discovery!!” That means prosecutors can stop the clock before they hand over discovery materials—forcing the defense to decide between pushing the case to trial without the materials, or stopping the clock themselves.

Just below that comment, the presentation warns prosecutors that the practice may be risky. But nonetheless, the statements of readiness are encouraged.

The high volume of cases in the Bronx also pushes prosecutors to engage in these tactics, says Foy. “The reality is, given the volume of cases, and you have 90 days to try each case, you can’t try all your cases in 90 days,” Foy said. “The criminal justice system would collapse.” It’s not fair to injured parties, he added, to have cases dismissed too quickly. “The guy who got punched in the face, he doesn’t want the case dismissed because [the prosecutor] didn’t say the right thing in court.”

Bronx County is currently in federal court with the Bronx Defenders, a public defender nonprofit, which alleges that delays and congestion at the county criminal court violate defendants’ right to a speedy trial. Public defenders associations, like the Legal Aid Society, are also pushing to amend New York’s statute to force prosecutors to hand over discovery materials before they can claim readiness in court and count congestion delays toward limits on how long a person  can be held in jail pretrial. One such bill—named after Kalief Browder, a Bronx man who died by suicide after spending three years in jail pretrial—was passed in the State Assembly last year, but was never voted on in the Senate. (Darcel Clark, the current Bronx district attorney, was the judge on Browder’s case from December 2011 to September 2012.)

That legislation would have given judges the ability to stop or start the clock and not automatically exclude delays due to court congestion. The bill was fought by the state District Attorneys Association. Its then-president, Rockland County DA Thomas Zugibe, said at the time that the organization was “fundamentally opposed to any bill that would allow a guilty defendant to escape prosecution merely because the state has failed to provide sufficient resources to the criminal courts.”

The former Bronx prosecutor thinks the current law, as it stands, is one of the major forces keeping defendants in limbo. “Honestly if anything is gonna change in the Bronx, that’s the main thing you’re gonna have to change,” the former prosecutor said, referring to New York’s speedy-trial law and the courts’ inability and refusal to stop delays enabled by the statute. “You just can’t be ready on all those cases.”

*Full name withheld at lawyers’ request.

Correction: This story has been corrected to note that Thomas O’Brien, a staff attorney with the Legal Aid Society, did not say the problem of claiming readiness too soon seemed more prevalent in the Bronx. 

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