The NYPD ‘Cancelled’ Police Court Appearances, Leaving People to Sit in Jail
Memos obtained by The Appeal and anecdotes from public defenders reveal how, for a week during protests over police brutality, the NYPD stalled cases by directing officers not to testify in court.
The New York City legal system is critically backlogged with a pileup of cases stemming from both the COVID-19 shutdown and the thousands of arrests and detentions related to recent protests against police brutality.
Yet for a week during the protests, the NYPD directed its officers not to appear in court to testify, further delaying criminal hearings for people held pretrial and awaiting possible release from jail, according to documents obtained by The Appeal and interviews with public defenders.
In a memo dated June 2—addressed to “all commands” and signed on the “authority of the police commissioner”—the NYPD declared that “all court appearances” were “cancelled” for the rest of that week.
“Effective immediately, due to ongoing national and local social unrest and the need to maintain public safety and order there will be no court appearances in any patrol borough,” the memo reads. The NYPD’s eight patrol boroughs encompass all precincts across the city.
Another memo, dated June 8, ordered the continuation of court appearance cancelations “until further notice,” asserting that the policy would be “reevaluated” on Wednesday. According to the NYPD and a spokesperson for the New York court system, the policy was rescinded Wednesday and officers are once again attending court.
The NYPD claims it suspended court appearances so that it could have as many officers as possible on patrol during the protests. “Every single element of the police department was directed to redeploy resources to enhance our Patrol presence,” an NYPD spokesperson told The Appeal in an email. Police have made around 2,500 arrests and detentions related to the protests.
Public defenders told The Appeal that the NYPD’s actions suppressed the due process rights of those held in jail on felony charges, many of whom have already had to wait weeks or months longer than normal for a chance at pretrial release because of court shutdowns related to COVID-19.
“We have people in jail and the charges aren’t substantiated,” said Yung-Mi Lee, supervising attorney at Brooklyn Defender Services. “How can this comply with due process standards?”
Under New York state law, within six days of arrest, prosecutors must either indict in front of a grand jury someone they’ve charged with a felony offense, or they must hold what is known as a preliminary hearing so that a judge, prosecutors, and the defense may argue about whether a felony was committed and whether the defendant should remain jailed as pretrial procedures commence. But in March, because of the COVID-19 crisis, Governor Andrew Cuomo suspended via executive order most court procedures and deadlines, including the six-day grand jury or preliminary hearing requirement for felonies—a move some thought could be unconstitutional.
On May 7, the governor issued another executive order, which reinstated preliminary hearings by video. By that time, however, unreviewed felony cases had been piling up, and, in New York City, public defenders say there were hundreds of people who had been sitting in jail for days or weeks waiting for a hearing.
Over the next four weeks, the city’s criminal courts began addressing the backlog. But then the NYPD issued its directives canceling court appearances.
“You have individuals who have been in a kind of indefinite pre-inquiry-of-any-kind detention” because of the COVID-19 court shutdowns, said Ann Mathews, managing director of the criminal defense practice at the Bronx Defenders. “And so [the NYPD skipping court] is not just a delay—it’s delay on top of delay on top of delay.”
Without police as witnesses, prosecutors can’t present most of their cases at preliminary hearings. And instead of forcing officers to attend court—or dropping the felony charges for cases where police witnesses wouldn’t attend—criminal courts in the city allowed prosecutors to further delay the hearings, according to public defenders and a spokesperson for the state court system.
Lucian Chalfen, director of public information for the state courts, told The Appeal over email that “it is unclear at this time how many hearings were postponed” as a result of the police canceling court appearances. But Chalfen noted that some city police officers did testify despite the directive. According to attorneys from the Legal Aid Society, the Bronx Defenders, and Brooklyn Defender Services, the NYPD policy delayed preliminary hearings in Manhattan, Brooklyn, Queens, and the Bronx.
“I don’t understand why the police officers can’t do their job,” said Christopher Pisciotta, attorney-in-charge of the Legal Aid Society’s Staten Island trial office. “They made an arrest on felony charges. They have 36,000 officers. I can’t understand why they can’t free up an officer to come and testify, as required by the law.”
Amid the protests, which have been ongoing since George Floyd’s death on May 25, city and state officials have made other moves that attorneys and advocates say restrict due process.
On June 4, for instance, a Manhattan judge, citing a “crisis within a crisis,” struck down a lawsuit brought by the Legal Aid Society, seeking the release of over 100 people whom the police held for over 24 hours without seeing a judge. Under New York law, a person must be arraigned within 24 hours of their arrest, absent a reasonable explanation for the delay. Legal Aid argued that the ruling violates “fundamental standards of justice” and opens the door for widespread prolonged detention in what protesters have described as dirty, overcrowded holding cells.
The NYPD’s decision to temporarily cancel court appearances is the cherry on top of an already disastrous time for defendant rights, public defenders say.
“Some of these individuals have been in custody throughout nearly the entirety of the [COVID-19] pandemic,” said Mathews of the Bronx Defenders. “To get to this point where you’re finally having a preliminary hearing, where there’s finally going to be some inquiry into whether there is reasonable cause to believe a felony was committed—and then it doesn’t happen because the NYPD has decided that their cops aren’t going to show up? It is yet another affront to all notions of meaningful due process.”