Turk sent me over a warm and fuzzy note from New York State’s chief judge, Janet DiFiore, reminding lawyers that as bad as things are due to COVID, the courts still love us. Aww. Buried in Judge DiFiore’s message was a very curious tale about the first jury trial in Queens since the pandemic struck.
And if anyone had any doubt as to the critical importance of restoring functioning grand juries or petit juries, I would highlight the circumstances of the criminal jury trial concluded last week in Queens County. The defendant in that case was arrested in July 2018, more than two years ago. He has been held in custody since then, charged with two counts of burglary in the second degree, and criminal trespass as a misdemeanor. The case was scheduled to go to trial in March, but the arrival of the pandemic and the statewide stay-at-home order halted jury selection and led to a mistrial.
You caught that little detail buried in there, that the defendant has been held in custody for more than two years? No doubt Judge DiFiore included it to show the urgency with which the courts need to find a way to try cases, although it apparently eluded her that between the release and the suspension of New York’s speedy trial law, CPL § 30.30, trials are hardly the only solution to the conundrum the law has to offer.
Fast forward 8 months later and the trial finally went forward as part of our citywide jury trial pilot earlier this month. And despite the criticism and skepticism of many practitioners, the two-week trial was completed safely and successfully. The jury acquitted the defendant of all felony charges but convicted him of the misdemeanor charge. As a result, the defendant was freed by the judge — after having spent more than two years in jail for committing a crime that carries a maximum sentence of one year.
Granted, the outcome of acquittal on the felonies with conviction for a misdemeanor can’t necessarily be foretold, or else there would be no reason to hold trials, but then those eight months didn’t “fast forward” for the defendant, who does not get his next misdemeanor free for having already served twice the maximum sentence for the only offense for which he was convicted.
Nor does the outcome of acquittal on the felonies demonstrate that the pilot program was successful. It could just as well be great lawyering by the defense, terrible lawyering by the prosecution, a bad case or mere kismet. That the defendant wasn’t convicted of everything doesn’t mean the changes adopted to accommodate COVID-19, do not impair the functioning of a jury trial.
Unfortunately, the case I just described is not unique. There are other defendants who are being held in jail while they await the opportunity to have their guilt or innocence determined by a jury of their peers. The right to a trial by jury is one of the most fundamental rights enshrined in our constitution, and it is one that we — and I mean every single player in our criminal justice system — have a solemn responsibility to uphold, notwithstanding the challenges of the pandemic.
Much as one would expect the state’s chief judge to be aware of the fact that juries don’t determine innocence, and that these “other defendants” detained are presumed innocent, what’s a court system to do (other than, you know, either afford them their constitutional rights or cut them loose)?
Judge DiFiore goes on to thank the players, from defense lawyer to prosecutor, judge to courtroom staff.
And finally, we thank Administrative Judge Joseph Zayas, Judge Ira Margulis and the court’s professional staff for their efforts in implementing a broad range of safety measures and protocols, including plexiglass partitions in the courtroom and social distancing of jurors; and for making innovative use at trial of smart phone and video technology to ensure safe attorney-client communications and enable jurors to observe the facial expressions of witnesses called to testify.
The witnesses weren’t in the courtroom? They were on video to “enable jurors to observe the facial expressions,” while sitting in the comfort of . . . somewhere else, and not the imposing courtroom, not with the eyes of the defendant burning through their testimony, not with the socially distanced and plexi-protected jurors seeing the beads of sweat collect on their furrowed brow?
Is this good enough? Is this the proper trade-off between personal safety and a presumptively innocent defendant sitting in COVID-ridden Rikers for a “fast” eight extra months, or two years total?
Stories like this are why we have every reason to feel positive and optimistic about the future. There are so many people who never stop doing their level best to see that justice is done . . ..
Does this story make you feel all warm and fuzzy about the future of the court system, or at least its present in light of having to accommodate the realities of the pandemic? Is this good, good enough or an abdication of adherence to law and constitutional rights? While the outcome this time blunts some of the criticism, and speaks well of the defense lawyer, Michael Anastasiou, it could just as easily have resulted in conviction on all counts. What then?
*Tuesday Talk rules apply.