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Accelerating New York’s Descent

Judge John H. Wilson (ret.) has provided this article exclusively to

the New York Analysis of Policy and Government.

As was discussed in my last article, New York State has enacted a sweeping change in how the Criminal Courts handle one of their most basic functions – whether or not bail is set when a defendant is under arrest for a crime.  Under the new rules, the Courts are required to consider the release of most defendants, with the least restrictive conditions applied to their release terms.

This had led to some truly ludicrous proposals for ensuring that the accused return to court, including New York City Mayor DeBlasio’s plan to give free Mets tickets, gift cards and free movie passes to criminal defendants in an effort to convince them to return to court.  

But there is another criminal justice reform scheduled to take effect in the new year – one that has caused prosecutors in New York State to sweat even more than the changes to the bail statute.

In any criminal prosecution, the defendant is entitled to “discovery” – that is, information regarding the evidence the prosecutor intends to use against the defendant. This would include police reports, witness statements, photographs, laboratory reports – essentially anything that could be used against a defendant at trial.

 A prosecutor is also obligated to turn over to the defense any materials that may tend to exculpate a defendant, such as a statement from a witness who cannot identify the defendant as the perpetrator of the crime, or a police report that indicates someone else may have been suspected of committing the crime.

In the past, the issue has been the timing of these disclosures to the defense.  Under New York Criminal Procedure Law Section 240.20, disclosure of the prosecutor’s evidence was made “upon a demand to produce by a defendant.”  The prosecutor could then seek a protective order from the Court for materials they believed should not be turned over to the defense, or that required redaction of information that may endanger a witness (such as removing the name of the informant from an application for a search warrant).  If the prosecutor failed to turn information over to the defense, the defendant could seek a court order under CPL Sec. 240.40, and ultimately, seek that the non disclosed information be excluded from use at trial.  

 These rules led to an elaborate game of hide and seek between prosecutors and police officers on one side, and defendants and their attorneys on the other.  After the initial request for disclosure was made by the defense, often the prosecutor asked the Court for additional time to produce the requested materials, or produced what information they had minutes before an evidentiary hearing was scheduled to begin.

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More than once, a prosecutor has withheld materials that were favorable to the defense until AFTER the trial, claiming that these materials had been “recently discovered” or “lost in the file.”  In 2005, for instance, Noura Jackson was convicted of murder in Tennessee.  Yet, evidence that could have discredited a key witness against Jackson was withheld from the defendant by the prosecutor, leading to the reversal of her conviction in 2014, after Ms Jackson had spent more than 10 years behind bars.  

   In my own experience, I have seen instances of prosecutors playing fast and loose with the discovery rules.  When I sat as a trial judge in Bronx Criminal Court, I sanctioned a prosecutor for withholding evidence. 

  Under New York State’s discovery reform, prosecutors will no longer have the ability to disclose materials relevant to a criminal case at their own leisure.  Instead, NY State Senate Bill S1716, which is due to take effect January 1, 2020, requires that “the prosecution shall perform its initial discovery obligations…as soon as practicable but not later than fifteen calendar days after the defendant’s arraignment…”   A defendant no longer needs to file a request for discovery – instead, the burden is on the prosecutor to provide their evidence within 15 days of the beginning of the case.

 Naturally, New York state prosecutors have pushed back against the new law.  “without additional staffers and upgraded technology, the reforms would face a series of internal hurdles, district attorneys warned the Senate Codes Committee during a seven-hour public hearing in Manhattan. The increased pressure could inadvertently cost prosecutors cases, and, if material is not properly reviewed and redacted, witnesses and other parties could be put in danger, they said.” 

But Governor Cuomo and the Legislature are standing fast, and will not even agree to the additional funding prosecutors have requested to implement the changes.  

  My own experience informs my opinion in this matter.  When working as the Chief Prosecutor for a Native American reservation’s tribal court in North Dakota, I provided police reports, photographs and whatever evidence I had available to the defense prior to the arraignment of the defendant.  Preparing these documents took up much of my morning, particularly on Monday, when there were no court sessions on the weekend.  By providing these materials in advance, however, a defendant had the ability to fairly assess the case against him or her, and decide whether or not to plead guilty in an informed manner.  In the majority of cases, the defendant took a sentence at the arraignment, knowing there was more than sufficient evidence to convict them.

I am sure there are readers who will feel that a defendant doesn’t need this information – he or she knows whether or not they’re guilty.  As attractive as this reasoning sounds, this theory stands our justice system on its head.  A defendant is always presumed to be innocent, until actually found guilty or enters a guilty plea.  Under this principal, the defendant has the right to know what evidence the prosecutor has available, so that the defendant may make an intelligent, knowing, and informed decision on whether or not they wish to waive their rights, and receive a sentence.  

 For once, the NY State legislature has the right idea – and prosecutors have no one but themselves to blame for these changes.

Illustration: Pixabay

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New York Plans to Unleash Chaos in New Year

This article was provided exclusively to the New York Analysis of Policy and Government by Judge John H. Wilson (Ret.)

The descent of California into chaos due to its government’s insistence on following hard-left ideology has been well documented, particularly in the ruination of its great cities. The same may be said for the once-great city of Detroit.  As the New Year approaches, New York state is following suit.

In April of this year, the New York State legislature passed a bill which is intended “to end the use of monetary bail, reduce unnecessary pretrial incarceration and improve equity and fairness in the criminal justice system.” Known as the “Bail Elimination Act of 2019,” this new law, which takes effect on January 1, 2020, will do exactly that – in the majority of offenses, a Court no longer has the discretion to set cash bail on a criminal defendant.  

Under CPL Sec. 510.10, prior to the changes made by the new law, a Court ” must, by a securing order, either release (a criminal defendant) on his own recognizance, fix bail or commit him to the custody of the sheriff.”   Now, a Court shall…release the principal (criminal defendant) pending trial on the principal’s personal recognizance, unless the court finds on the record that release on recognizance will not reasonably assure the individual’s court attendance. In such instances, the court will release the individual under non-monetary conditions, selecting the least restrictive alternative that will reasonably assure the principal’s court attendance.”

Further, a Court is now required to “support its choice of alternative on the record. A principal shall not be required to pay for any part of the cost of release under non-monetary conditions.” 

There are other aspects of this new legislation that will not be discussed here, including reducing the time a prosecutor has to bring a case to trial, and requiring prosecutors to provide evidence to the defense earlier in the life of a case than was previously required.  These other changes are not as radical as the change at issue here – Courts no longer have the discretion to set bail in the majority of criminal cases in New York State.  

Just what crimes are subject to these new rules?  For example, felonies like Second Degree Burglary and Second Degree Robbery would Some individual thinks that it is grammatically incorrect and one must give credit to those who have managed to package what appears, on the surface, to be “penis order viagra india enlargement,” when instead, what men are really getting, is “penis enlargement.” Yes, I do realize those are the exact same therapeutic effect as the brand name medication as well as well-known Canadian local drugstore. An oral medicine will start its action within viagra canadian 30 to 45 minutes. This Kamagra is slightly costly if you choose oral jelly or viagra properien other items than oral pills. This is of course just speculation buy viagra online at this point. fall under the new release rules, however, it is shorter to discuss which crimes could still result in cash bail.  For misdemeanors, only sex offenses (such as touching over the clothes, etc) and criminal contempt arising out of an underlying domestic case (for instance, a violation of an Order of Protection issued on behalf of one domestic partner against another) are subject to bail.  For felonies, only violent crimes are subject to cash bail, such as Murder or Rape.  But serious drug felonies, such as possession of a controlled substance with the intent to sell, or sale of a controlled substance, will be subject to the new rules. 

In fact, when Manhattan Criminal Court Judge Anne Swern set a $100,000 bond on alleged drug dealer Arfhy Santos for driving down the sidewalk while fleeing DEA Agents, Santos’ defense lawyer argued for his  release on the basis that his current charges ‘are not subject to bail under the new reform act.”  

How drastic is this change?  According to the Center for Court Innovation, “our analysis indicates that of the almost 205,000 criminal cases that were arraigned in New York City in 2018, the new legislation leaves money bail as an option in just 10 percent.”  The Center notes that on April 1, 2019, 7,822 people were being held in New York City jails.   Of these, “almost 5,000 were held pretrial and potentially impacted by the changes in the bail law.  Our analysis finds that 43 percent of these 5,000 individuals…would have been released under the State’s bail reform.” 

Though the law hasn’t taken effect yet, many of New York’s judges have already begun to follow the new bail rules.  In November, Stathos Hugunnie was arrested by the NYPD for possession of three guns and a supply of both heroin and crack cocaine.  Yet, despite a prior conviction for shooting a police officer for which Hugunnie was incarcerated for a least a decade, the Queens Criminal Court only set a $5,000 bail on Hugunnie, a bail he was able to easily post. 

Further, to avoid a deluge of applications for release come January 1st, New York already has plans to release approximately 900 inmates from jail before the new bail rules take effect.    According to the New York Post, those being released include “Jose “Catano” Jorge, charged with first-degree criminal sale of a controlled substance after a customer OD’d on fentanyl-laced heroin…(and) Jacob Morales, who has two prior assault convictions and allegedly pulled a razor on a No. 4 straphanger.” 

The District Attorneys of both Staten Island and Queens, as well as numerous police officials across the state have asked the Legislature to reconsider the bail reform changes, or at the very least, give a “grace period” of at least 6 months before the statute takes effect.  To date, Governor Andrew Cuomo refuses to reconsider the immediate implementation of the new law.    Meanwhile, for his part, in anticipation of no longer needing the facility, New York City Mayor Bill DeBlasio is busy planning to close New York City’s largest jail, Rikers Island.  

The result of this change is readily apparent to everyone but the social engineers in Albany.  According to New York PBA President Pat Lynch, while commenting on the low bail set on Stathos Hugunnie, “New Yorkers, this is your future, and the worst is still to come. The appalling and disturbing decisions that have now twice put a vicious cop-shooter back on our streets are not outliers — they are what our elected leaders have chosen.”      

Photo: Pixabay

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THE BAIL PROJECT – FREEING THE POOR AND THE DANGEROUS ALIKE

This article was written by the distinguished former judge John H. Wilson

There is no doubt that the majority of people held on bail while their criminal charges are pending are unable to pay the money necessary to gain their freedom.  As of 2016, 1.6 million people were incarcerated in American federal and state prisons.  Of these, 646,000 were being held in approximately 3,000 local jails.  70% of these were being held in pretrial detention, and of these, their 2015 median reported annual income was approximately $15,109 prior to incarceration.

Kalief Browder was 17 years old when he was arrested for felony assault in New York City.  His bail was set at $3,000, an amount his family could not pay.  After 3 years of incarceration awaiting trial, the case brought against him fell apart, and he was released.  Several years later, at the age of 22, he committed suicide.  His family blamed his death on the years of abuse and solitary confinement he suffered during his incarceration. 

Based upon this tragic case, the City of New York instituted a program to allow nonviolent, low-level offenders to be released without posting bond.  However, bail reform proponents were not satisfied with this process.   To address the perceived injustice of pretrial detention of poor people, the Bail Project was born.  

Begun in 2007 as the Bronx Freedom Fund, this service has grown into a nationwide organization that posts cash bonds on behalf of indigent persons.  Their mission?  “To combat mass incarceration and racial disparities at the front end of the system.” 

How exactly has this altruistic plan worked out so far?  That depends upon who you ask.

In general, the effort of judges in New York to release criminal defendants without the posting of cash bail had led to a series of repeat offenders being given the opportunity to offend again.  For instance, Robert Scott was arrested earlier this month in Manhattan for assault on a woman who was a stranger to him.  Two days after his release, Scott was again arrested for the attempted rape of a woman on the Upper West Side.

The Bronx Freedom Fund was involved in a similar case in 2018.  Lynneke Burke was released on a $1,000 bond paid by the Freedom Fund after assaulting a stranger.  The following week, Burke was arrested for the rape of a high school teacher.  

Recently, the Bail Project posted the $5,000 bond of a St Louis man in a domestic violence case.  The same night he was released, Samuel Lee Scott is alleged to have gone to the home of his wife and killed her.  “A probable cause statement from the St. Louis Circuit Attorney’s Office said (Scott) threatened that he ‘might as well finish what (he) started since (she) was going to contact the police.’”

These horror stories point to the obvious repercussions of posting bond for people based on a perception that these offenders are minorities, caught up on an unfair system, that punishes them for their racial background and poverty.  In fairness, it should be pointed out that since instituting bail reform, “New York City’s jail population has dropped from nearly 22,000 in 1991 to about 7,800 this year, making it the least incarcerated major city in the United States.”  Further, “New York’s lower reliance on bail hasn’t led to defendants not showing up in court. The city’s return-to-court rate is 86 percent versus about 75 percent nationally.”

But these statistics only tell part of the story.

As the Night Court judge for Brooklyn from 2005 to 2010, I made release and bail determinations for approximately 60 to 100 arrestees per night.  Depending upon who you ask, I was either (a) fair (b) biased (c) the best judge (d) the worst judge – ever ( e) usually Mostly ED medication starts working in 30 minutes and lasts for about 48 hours, compared to viagra pills canada which lasts up to about 4-5 hours. It is surely a silent epidemic which needs to buy viagra prescription be controlled. The attractive circular broken will be a common health problem affecting men of all ages, however is additional common with increasing cialis on line age. Leave a viagra buy australia note in your partner’s pocket and tell her not to be late tonight as there would be someone eagerly waiting for her. right (f) never right.  Regardless, I always used several standards when I assessed whether or not someone should be released without bond.

First and foremost, I looked at their record.  I looked for prior crimes of the same nature, and I looked for their history of returning to court.  If I saw someone who had a recent history of arrests for the same offense, particularly in a short period of time (such as turnstile jumping, robbery or domestic violence) they were far more likely to have a bond.  If someone had a bench warrant outstanding, they were usually going to be held.

In particular, what I was looking for, and what the Bail Project and other bond reformers ignore, is recidivism.  Under the criterion used by those who argue that bond is used to punish the poor, it does not matter that the same person has been repeatedly arrested for the same offense.  It only matters that they return to court.

Thus, I was excoriated by the defense every time I set bond on a defendant who returned to court with a new arrest, even after I had warned that same defendant that if he or she was rearrested, I would set bond.

In those cases, I specifically stated, for the record, that by being rearrested, the defendant had violated the bond conditions I had imposed upon him or her at the time that I set a new bond leading to his or her incarceration.  If you were to ask why I did not cite public safety as my basis, there is a simple reason – New York does not recognize public safety as a basis for setting bond on a criminal defendant, no matter the crime or strength of the evidence.

New York Criminal Procedure Law Section 510.30(2) lists the factors and criterion a court may use in a discretionary order of release or the setting of bail.   These include the person’s character, reputation, habits and mental condition; his employment or financial resources; his family ties and length of residence in the community; his criminal record; and his previous record of responding to court appearances.  But no where does the statute authorize a New York Court to hold a defendant in the interests of public safety.

Maybe a large number of the defendants given bonds in criminal matters can be trusted to return to court.  But can they be trusted to lead law-abiding lives, and not come back with a new and sometimes more serious arrest?  Until the issues of recidivism and public safety are addressed, groups like the Bail Project will continue to free dangerous individuals, allowing them to prey on the public, while justifying their actions with the limited standards they use to achieve a false sense of “social justice.”

Illustration: Pixabay