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Entering month seven without a right to a speedy trial in New York.
It’s been six months since defendants in the New York court system had one of their most important rights taken away. Six months since people lost their right to a speedy trial under Governor Cuomo’s emergency powers. And, for most people caught in the system, six months of absolute frustration as their case goes nowhere.
As a newish lawyer, almost all of my cases are misdemeanors. For the most part, none of my clients are realistically looking at a sentence that includes jail time, and, thanks to the 2020 bail reform laws, almost none of them are being held pretrial. That is certainly better than having many people wasting away at Rikers during Covid. My clients are for the most part out living their lives despite having an open case.
However, I wouldn’t say it’s great that thousands of people have indefinitely open cases that are going nowhere. Criminal Procedure Law § 30.30, New York’s speedy trial statute, gives the prosecution only a limited amount of time to get their ducks in a row on a case. There are several steps between an arrest and a trial, and in misdemeanorland the DA’s office has only 60 or 90 days, depending on the seriousness, to get themselves together.
First, they have to make sure there is no hearsay in the charging document, which, practically, usually means getting any witnesses to sign sworn statements saying that what they told the police happened actually happened. In normal times, at least 50 percent or more of my misdemeanor cases get dismissed because the DA’s office cannot get their witness to sign this piece of paper within 90 days. It’s a combination of laziness and/or overwork on the part of the ADA and obstinance on the part of witnesses.
These are usually what’s called “complaining witnesses,” and generally they are the person that something happened to. They got hit, they had something stolen, they had their property damaged (allegedly!) by the person who got arrested. But if it was a misdemeanor, there wasn’t a serious injury, the stuff wasn’t that valuable etc. Most of my misdemeanor cases are some version of: two or more people were having a verbal dispute, it was heated, it escalated to light to moderate physicality, someone broke someone else’s phone, etc. It often didn’t happen the way the cop says it did, but something happened. Generally the people involved know each other, so when weeks later the DA’s office comes asking the complaining witness to sign a piece of paper to prosecute the defendant, they’re like “What? No. I’m over it, things have settled down, etc.” Or they’re afraid of the system, or the arrest triggered an order of protection that is making their life difficult, or they’ve changed their number, etc. Regardless, before COVID, this first step is where a ton of misdemeanors just timed out and got cleared from the system.
As of January 2020, discovery also came under the speedy trial umbrella. The DA’s office has to send defense attorneys all of the evidence they have—witness information, police reports, body cam, any other video they might have, etc.—and sign a statement saying they have turned over everything in order to be “ready for trial.” Technically, the law says 15 days, but it doesn’t have any mechanism for punishing them for not meeting the 15 day deadline, so it is in reality they have however many days until they’re forced to dismiss the case to turn over their discovery. They’re not good at this yet. (It still blows my mind that before 2020 this right to see evidence against a client didn’t really exist in this state???)
In the Before Times, I had exactly one (1) case in which the DA’s office declared it had turned everything over and was ready for trial (they were wrong, but that’s a different story). COVID really saved the Queens DA’s office’s ass. The courts shut down in mid-March, roughly 80 days into 2020, and I’d say something like 75 percent or more of the then-open misdemeanor cases they were prosecuting were about to hit the speedy trial time limit because they couldn’t figure out how to turn over required discovery.
Then came Governor Cuomo. The speedy trial law has been suspended since the Governor’s first order shutting down in-person court appearances back in mid-March. At first, it sort of made sense. Everything really was in emergency mode, and I can see the argument for it being unsafe for the DA’s office to try to get things signed by witnesses, etc. But it’s been six months, we’ve largely figured out a way to keep working despite COVID precautions, and still the governor won’t reinstate people’s rights.
The latest executive order maintains that speedy trial rights will be suspended “until such time as petit criminal juries are reconvened in that jurisdiction.” Nobody gets speedy trial rights until we can have trials again, basically. I can see how the word “trial” in “speedy trial rights” might make it seem like that makes sense. In reality, though, an infinitesimal amount of misdemeanor cases go to trial, and the speedy trial right is there to make sure that people aren’t languishing in limbo forever. It’s not about trial, but about the DA’s office having to put some of their cards on the table. They have to make efforts to show they actually can move forward with the case, or they have to dismiss it. The point is to get a case “ready for trial,” which it can be for ages before it actually gets to a trial.
As a defense attorney, I’m at a loss for what to do in most of my cases. The DA’s office won’t tell me if their witnesses are going forward, they won’t give me any of the information they have on most of my cases. They won’t do anything affirmative in cases where a person is not in jail, except offer a guilty plea. So everything is just languishing, while he courts get mad about the backlog and pressure the defense bar to make our clients take pleas. Pleas without any information on these cases. Pleas where we don’t know at all if the DA’s office has a case. Pleas because nearly everyone in the court system operates on the assumption that our clients are guilty as charged, and their fundamental rights only stand in the way of an efficiently operating system. This is the fundamental problem that the new laws in 2020 were supposed to help solve, and instead we’ve gone backwards because the Governor and the courts won’t stand up for our clients’ rights.
Whether we have juries or not, there is nothing keeping the DA’s office from getting arrest reports and body cams from the NYPD and sharing them with the defense, except the fact that the Governor says they don’t have to, so they won’t.