Who needs convictions when the process is the punishment?
flickr / Rich Watts, “Dodgems / bumper cars”
Last week, Jalopnik wrote about charges being “dropped” against the person accused of taking a rare, fancy sports car and playing high-speed bumper cars with a few parked minivans in Hell’s Kitchen last April.
Jalopnik suggests that this is basically the Manhattan DA doing a favor for a guy who can afford an $800,000 car, but I think the reality is probably much more mundane. It may in fact be a good reflection of the ways in which the system is broken, but just not in the way the writer thinks.*
Jalopnik notes that after the accident(s), the owner of the car was charged with reckless driving and driving under the influence of drugs. They then posit, “You’d think that with anyone in a case like this would at least get a couple of years in prison right? Well, apparently money gets you off because all charges against Chen were dropped on Monday.”
The second idea is possible, but I think if money was doing work here it would have worked a lot faster (he was arrested last April). And the first thing is just—what? Sometimes I have to remind myself that it’s still pretty normal in America to see some property damage and think, yeah, that’s so wrong it’s gotta be worth several years of a human sitting in a cage.
The video of the car hitting a minivan at high speed is legitimately terrifying (video here, but c/w it’s pretty graphic), and the minivan goes careening into the bike lane, and someone definitely could have been killed. There’s a separate conversation to have about how the criminal law treats driving offenses with kid gloves (even when people do die!), but that’s tangential to what did happen, which is the guy got charged with an extremely hard to prove misdemeanor.
The charges were reckless driving and driving under the influence of drugs, according to Jalopnik and Road & Track. Assuming this guy hasn’t racked up multiple DUI convictions, which I think is pretty safe because the NYPD would have loved to leak that information to a reporter in this case, that’s probably two misdemeanors. The definition of a misdemeanor is you can’t do more than a year in jail for it. Theoretically, if this guy got convicted and was sentenced on both counts to the maximum jail time running consecutively, he would be looking at two years. But as punitive as our system is, it would be highly irregular for that to happen.
In Queens, where I work, people largely do not do jail time for misdemeanor DUIs or reckless driving. In other counties it is more common—I know sometimes there’s jail involved in a first DUI out on Long Island, for example, but it still would be rare to do the maximum. No jail time does NOT mean no punishment, though. To begin with, this guy has had an open case hanging out on his criminal record for nearly a year, and that’s not nothing. I’ll get to that more later.
If I got this case as it is described I’d tell the guy he was probably looking at doing a mandated drug program, losing his license for a little while, and paying a fine. I’d also tell him from day one that there was a good chance that his case would be outright dismissed because the prosecution would be unable to prove their case, even with videos of him doing it all over YouTube.
There are two major reasons this case was headed for dismissal from the start: first, they charged him with driving under the influence of drugs, not alcohol, and second, the government is still absolutely unable to handle the new discovery laws that went into effect in 2020.
There are several elements to a DUI crime, and the prosecution has to prove every one of them. Driving, for example. Water is wet, etc, but it’s harder than you think to legally prove someone was driving. Either an officer has to see you behind the wheel with the keys in the ignition, another person has to see you driving and be willing to testify, or the driver has to admit to driving. It’s often easier to prove a DUI where a cop walks up to a person who is parked and sleeping in the driver’s seat with the keys in the ignition (P.S. don’t do this! This is “driving”!) than, say, a case where the person was so drunk they drove into a tree or a parked car then got out of their car before anyone noticed or the police arrived.
Another element of a DUI is obviously being intoxicated. A breathalyzer test is a cheap, fast, and legally well-accepted way of proving that someone is under the influence of alcohol. But for drugs, you need a blood test. For blood, the cops have to take you to the hospital. The drug still has to be in your system by the time they take that blood. They have to be testing for the right kind of drug. There’s a whole chain of custody issue with who took that blood and where it went and who tested it and how everyone can be sure that those results are from that person who was arrested for the bumper cars in Hell’s Kitchen. Unless there is a confession (hi: don’t) and/or there were drugs in the car or on the person, actually proving that someone was so intoxicated by drugs so as to impair their driving is much harder than proving they were drunk.
Being unable to prove the person was intoxicated makes some sense, given what Jalopnik and Road & Track are reporting that the prosecution actually said in court. “The People are moving to dismiss this matter because the case cannot be proven beyond a reasonable doubt.” That is a beautiful turn of legalese that tells us nothing. I don’t really blame Jalopnik for thinking something underhanded was going on.
Even when the prosecution can’t prove their case, though, it’s rare to dismiss a case outright. Instead, they offer some sort of non-criminal disposition that has relatively few consequences, but allows the prosecution to avoid the embarrassment of an outright dismissal. This is why I think the new discovery law could have something to do with this dismissal.**
“Discovery” is when lawyers from one side reveal all the information they have that is relevant to their case to the other side. It’s not just what can be used as evidence, but any documents, recordings, videos, witness lists, etc. that relate to the case. In criminal law, because the state has the full burden of proving their case beyond a reasonable doubt, discovery mostly flows from the prosecution to the defense. Before 2020, New York State had one of the worst discovery laws in the country. The prosecution didn’t have to hand over much more than the evidence they were intending to use at trial, and they could wait until basically the eve of trial to hand it over. It meant that people were always in the dark about how strong the case against them was, so they were strung along for months or even years without having enough information to decide whether to fight or take a plea.
That changed last year, and now we have one of the most aggressive discovery laws in the country. In theory, the requirements are expansive and the prosecution is supposed to hand over everything they have—which is defined to include everything in the possession of the NYPD—within a few weeks of the start of the case. While there are “sanctions” built into the law if the prosecution misses its timeline, they don’t really have teeth. What does have teeth is New York’s “speedy trial” law. For most misdemeanors, like the ones described above, the prosecution has to be “ready for trial,” which as of January 2020 includes handing over all its discovery, within 90 days of the start of the case. If they aren’t “ready” in 90 days, they’re forced to dismiss the case.
What has happened since the start of 2020 in most misdemeanor cases (in Queens at least) is they just… haven’t. It is my understanding that in a lot of other states, after making an arrest the police automatically turn over their paperwork to the prosecution, and once the case begins the prosecutions hands it over to the defense. It’s been over a year now and that still isn’t happening where I work, especially on misdemeanors. I have had more than 100 cases in the last 15 months since the discovery law went into effect, and I’ve gotten a so-called “certificate of discovery compliance” on maybe a dozen of them. On most of those the discovery I got wasn’t even complete, but at least they got points for trying. There are some cases that are legitimately complicated, but why that means that they can’t hand over basic police reports and other run-of-the-mill PDFs in every case is beyond me.
The bumper cars case wouldn’t have been dismissed in three months, though. It began in April 2020, during a long period when the Governor had suspended the speedy trial laws. Any misdemeanor case that started between the start of lockdown and October didn’t have that 90-day clock start ticking until the Governor lifted that suspension on October 4. Those 90 days were up in January, though, and since then my practice has been almost entirely about the bureaucratic process of getting almost every misdemeanor I arraigned during the spring and summer dismissed, including several DUIs.
I can’t actually say that is what happened in this fancy sports car DUI, but it would be typical of the boondoggle going on in NYC criminal courts right now. It happens that many of my clients are really benefitting from the fact that some combination of the NYPD and the prosecution just cannot get their shit together to give us what should be a pretty standard file of documents in most cases. My third-hand knowledge of what is going on in Queens is that, basically, the NYPD is the hold up and they won’t transfer documents fast enough. If that’s true, it’s just laughably inept. (Maybe if they stopped paying overtime for beating protesters then paying out millions in legal settlements they would have budget for better data management tools.)
It’s also the worst kind of bureaucratic violence. The NYPD is happy to use force to arrest tens of thousands of people per year, but they won’t actually get themselves together enough to transfer the files that would allow for these people to be prosecuted. Basically, the misdemeanor court system is functioning on this sort of catch, torture, and release mechanism. People get arrested. They spend a day and sometimes a night in jail. They get suspended from their jobs, they are vulnerable to ICE arrest, they have orders of protection that keep them from seeing their families, their benefits or housing may be impacted. They are in this holding period for three months (or six or nine for people arrested in spring and summer 2020). Then, their case gets dismissed for a weird procedural reason. Poof, gone. It’s not related to anything they did or didn’t do, they have no control over it. For individuals it’s better to have a case dismissed than any alternative, but it’s also just such obvious systemic cruelty.
If 90% of misdemeanors are going to get dismissed because the government doesn’t have the bureaucratic capacity to transfer data in a timely fashion, what is the point of putting so many people through the system? It’s maximum cruelty with minimum efficiency.
At some point I guess I should stop being so surprised. We’re 15 months into this new discovery law and it’s still happening. At this point, maybe it’s a feature not a bug.
* I’m not naming the author here because I mean to analyze popular perception of the way courts work more generally, rather than say this author’s take on the situation is bad, specifically. Their byline is obviously in the link. I think the general thrust that both rich people and people who commit crimes in cars get off easy is right. They did a good blog!
** I don’t actually know what the real reason is in this case and I’m not pretending to, I’m just speculating so as to be able to talk about these issues more generally.