Judicial Reports: Plea Policy No Bargain

By Jesse Sunenblick

Posted 10-13-06

Queens has the highest-pressure plea bargaining policy in the city, and that has sparked a behind-the-bench debate about the balance between expediency and fairness. 

 

In 1996 the Queens County DA’s office was drowning in paperwork that flooded in from the borough’s 140 indictments a week.

Given New York’s grand jury and speedy trial statutes — requiring the release of detainees not indicted within six days of arraignment and defendants whose trial dates are not "announced" within six months of arraignment — the pressure was enormous.

“We had 20 assistant district attorneys assigned to put cases in a grand jury,” recalled senior executive assistant district attorney James Quinn, during a recent visit to the Queens Supreme Court. “And this is not as simple as people think: you have to bring in the police department and the complainants, get defense attorneys together, produce the defendant from the Queens House of Detention, across the street to Borough Hall. It created a hectic atmosphere. Everybody was running around and churning stuff out and you didn’t have the time to really look at cases and decide what’s real and what’s not.”

In an effort to “front load” the system and cut down on grand jury presentations, District Attorney Richard Brown looked to Nassau County, which had instituted a  “no post-indictment” plea policy. Defendants who waived their grand jury and speedy trial rights at their Criminal Court arraignment were offered a chance to cop a plea; otherwise, no plea would be taken for anything less than the top charge. (The Bronx maintains a softer version of this policy, with no rights waiver.)

In Queens these days, 95 percent of all defendants waive these rights, and 60 percent accept pre-indictment pleas, which means the grand jury has been largely eliminated, and dispositions have shot through the roof. (For a statistical comparison of Queens with the rest of the city, see LexMetrics.)

But in a DA’s office notorious for holding evidence close to the vest, is the policy fair to defendants, who often make this waiver decision without basic information like 911 tapes, police reports, and even the name of the victim?

Most judges asked about this arrangement demurred, citing the conflict of interest raised by the borough’s administrative judge, Leslie Leach. And yet even the measured replies of two judges — former Legal Aid attorney Joel Blumenfeld and former prosecutor Michael Aloise — suggest a behind-the-bench debate in Queens.

Judge Blumenfeld, a former chief of the Bronx Legal Aid Society, said that a defense attorney might well find the policy “coercive.”

“From the lawyer’s perspective it’s a nightmare,” Blumenfeld said. “Defense attorneys don’t get to see a police report, and they’re lucky if they can visit the scene. But then they’re supposed to counsel a client?”

A trial part judge, Blumenfeld only sees a “snapshot” of the plea policy in action. And yet he wonders if its efficiency comes with a certain cost. “If you’re arrested what do you hire a lawyer for? To give an accurate assessment of your case before trial. If you’re indigent—like the vast majority of defendants in Queens — you’re saying, ‘I don’t know this lawyer. Should I trust you?’ So the lawyer’s sitting in a vacuum — he’s not sure he’s getting accurate information from the client, nor from the DA’s office. All he has is the felony complaint. What meaningful advice can he give his client?”

Aloise, by contrast, described a fair and flexible dynamic. The former assistant DA hears gun cases in the trial part, but rebuts the notion that prosecutors never revisit charges.

“It’s a fallacy — I take pleas every day,” said Aloise. “The whole essence is in trying to dispose of cases before they enter the Supreme Court, to avoid clogging up the grand jury. The premise is valid, but the reality is that more times than not there are pleas being submitted after indictment. But you're more in the DA's ballpark. They'll only do it if its beneficial to them: if something happens to a witness, say, or a cop.”

Aloise went further — refuting any contention of procedural unfairness.

“The bottom line is that a defendant has no constitutional right to a plea,” the judge continued. “He’s solely and utterly at the discretion of the DA's office. If everybody's taking pleas down in Criminal Court, don’t think it’s because they’re afraid to come to the Supreme Court. They’re enticed because they’re getting some great deals. Attorneys have come before me and said, ‘Judge, you won't believe what they offered me below.’ ”

The first version of the no plea policy entered Nassau County in the mid 1970s, according to Pat McCormack, counsel to DA Kathleen Rice (who in last November’s election supplanted eight-term incumbent DA Denis Dillon). After New York amended its constitution to create the so-called Superior Court Information, or SCI, which allowed defendants who pleaded guilty to avoid a grand jury and indictment, Dillon instituted a program called “felony screening.”

McCormack described the process. “Dillon said, ‘Look, defendants who are charged with felonies, I’ll conference the case before convening a grand jury, and if we reach an agreement on a plea, we’ll file an SCI and take a plea. But if a defendant doesn’t want to take a plea, then I won’t engage in plea-bargaining, and highest charge that comes out of grand jury he has to plea to.’ ”

The result? “We went from 2000 indictments to less than 300,” said McCormack. “But the key to the system was that defendants had to agree to come to this conference and waive speedy trial rights while the case is being conferenced.”

In Queens, indictments shrunk from 8308 to 1685 between 1995 and 2005. The conviction rate of felony arrests rose from 67 percent to 73 percent.

In terms of efficiency, the no plea policy has allowed the Queens DA’s office to abandon separate staffs for pre- and post-indictment. A single assistant district attorney can now handle a case from beginning to end, because there’s no pressure to indict quickly. If no agreement is reached, the grand jury is convened, and any indictment starts the speedy trial clock ticking again. According to James Quinn, the executive assistant DA in Queens, the defendant is no worse off than he was before he waived his rights.

On Quinn’s wall hangs a sign that quotes the late conservative Barry Goldwater: “Moderation in the Pursuit of Justice is no Virtue.” It is a sentiment that defenders and members of the defense bar find vicious, calling the policy “robotic” and complaining the effect is that attorneys are “flying blind.”

“You’re not ‘flying blind,’ that’s a red herring,” countered Quinn. “An attorney should go to his client and say, ‘Did you do it or not?’ We’re not holding a gun to his head. If he doesn’t take the plea, he doesn’t get convicted. We still have to go through the process.”

Don Murray, a Forest Hills attorney for 16 years, called that a “naïve” analysis. “Some people take the plea even if they are innocent because they’re convinced they will get convicted. Neither my job nor Quinn’s job is always about whether or not somebody did it, and he knows that. My job is: Does the government have enough proof to prove whether you did it beyond a reasonable doubt? There’s nothing wrong with that. It’s not some sleazy dodge. It’s a constitutional requirement.

“But I don’t know if they have a lousy case, or if their witness is living in China. What if my client says, ‘I did it — I was in possession of a illegal firearm, but the policeman kicked down my door in the middle of the night to get it.’ I have a dead-on issue whether they violated my constitutional rights, but at the arraignment I don’t know whether the police were justified or not, because I don’t have the police report.”

Under New York’s discovery rules, at their arraignment defendants are entitled to little more than the criminal complaint, a rap sheet, and an oral statement of the identification procedure and incriminating statement (but not the actual confession). Even defendants facing trial must file subpoenas for evidence like 911 tapes, police reports, or video footage if they want it beforehand: In New York, defendants have to wait until after a witness has testified to get any documents he has filled out — and, according to the Queens Bar Association, less than 10 percent of suppression motions are granted.

Although the policy of the Queens DA’s office is to hand over any exculpatory evidence to the defense, in reality attorneys fight “tooth and nail” to get evidence, according to Timothy Rountree, attorney in charge for Queens legal Aid Society’s criminal defense division. He contends that’s true even after a subpoena has been signed.

“Normally with 911 calls there’s a ‘sprint report,’ a police-generated document with the name of the responding officer, the time of the call, but when we get it it’s been redacted,” Rountree said. “Sometimes, we get a complaint where the victim’s name is not even there: Depending on the whim of a prosecutor, we don’t even know who’s making the allegation in a routine robbery so we can’t investigate. We have to file a motion asking the court to order the DA to give us the name of the victim!”

In March, the New York County Lawyer’s Association released a survey on discovery in New York City’s Criminal Courts, which found that “most private practitioners and Legal Aid lawyers supported earlier or more complete disclosure of materials in Queens.”

The DA’s office responded that “the current discovery statutes provide an appropriate balance between the interests of the defendant and those of the People. Discovery that is provided outside the statutory framework is a privilege not a right — and that is how it should be.”
 
“You have to appreciate that ‘ambush’ is the watchword of the DA in Queens,” said Steve Singer, co-chair of the criminal courts committee for Queens County Bar Association. “They’re uniformly condemned by the defense bars across the city as being the worst of the city. I just came from Brooklyn, and they gave me a voluntary disclosure form at the arraignment of a case. In other places, as a matter of courtesy if not efficiency, they’ll give you Rosario material—police reports, lab reports—but in Queens they won’t give that until a witness has testified or until the hearing has actually begun and you have no time to look at it.”

(In People v. Rosario, the New York Court of Appeals recognized in 1961 that witnesses’ pre-trial statements constitute an integral part of the fact-finding process.)

To illustrate what he perceived to be the unintentional fallout of the plea policy in Queens, Rountree related the example of a client of another Legal Aid attorney, a Jamaican national with a pending U.S. citizenship application before the Immigration and Naturalization Service (INS) who was arrested after his stepdaughter accused him of “inappropriate behavior.”

“We were forced to waive speedy trial,” Rountree said, “because now he’s in INS hold, and any sentence over 364 days, or an aggravated felony charge, could be the basis for deportation. But before the next adjourn date, his lawyer talks to his mother and witnesses and finds out he has an alibi and that girl has a motive to make this up. So the lawyer goes to DA and says, ‘I have this information.’ The DA tells my attorney, ‘on next adjourn date we’ll let him go.’ But in the interim he’s in INS detention.”

“But for the waiver, you could have told the DA: ‘you don’t have case, this girl has issues,’ and force the DA to investigate within six days and make a determination. This case was dismissed. And he’s still in INS. This is a guy who has never been in trouble before.”

Posted by Jason on October 13, 2006 05:47 PM to Judicial Reports