Awhile ago I wrote an article for “The Attorney” Magazine about the inequities of the arraignment process in Nassau County. The article resulted in the re-construction and re-alignment of the courtroom where arraignments are held with the moving of the District Attorney’s desk from the front of the courtroom at the right hand of the judge to the front of the bench side by side with where defense counsel stands. While I am proud of that change the article generated, none of the other changes suggested in the article have been implemented even though they were actually easier to apply than the rebuilding of the courtroom.
I thought therefore it was time to republish it, this time digitally on this page. Hopefully it will generate a discussion again and bring the county into compliance with the rest of the State.
“Anyone who regularly practices criminal defense in Nassau County is also keeper of a little secret: the criminal justice system, particularly at the arraignment phase, is geared against the defendant and defense counsel. There I’ve said it – its out in the open now and its time it gets discussed intelligently and as lawyers.
I for one have grown tired of just listening to lawyers lament about their plight and the idiosyncrasies – I believe the unconstitutional idiosyncrasies – of Nassau County practice. Trying to get to the root causes of the problem is a difficult but necessary task if the defense bar wants to effectuate change and instill fairness into the system. While there are many practice differences between Nassau and the surrounding counties at later stages of a criminal case – like criminal parts that close at noon never to re-open or not producing an incarcerated defendant at each and every court appearance – this letter will focus on the issues at arraignment that are unique to Nassau County. The purpose of the article is to offer some proposals for change and encourage a conversation and consensus to act from the defense bar and the Legal Aid Society.
I. Improper Detention Facilities That Do Not Allow for a Proper Interview of the Defendant
When a person is detained awaiting arraignment, they are held in the District Court pens below Arraignment Courtroom A. There, they are herded into one or two large cells, separated only by gender. When you go to speak with them before they are brought into court, you face the dilemma that Nassau County is the only area county that does not provide a private area to allow counsel to speak with the client. So you are forced to engage in a Midnight Express-like conversation with your client pressed up against the bars. You and your client must then find the correct volume of voice to use –loud enough to be heard over the rest of the horde either speaking with counsel or among themselves or else urinating in the open toilet in the front corner of the cell, yet low enough to maintain confidentiality and privacy. Many times a codefendant is in the same detention cell and the client is utterly reluctant to openly discuss the case or else provides you instead with false bravado.
The arraignment is a critical stage in the proceeding yet Nassau County treats it as an annoyance to be suffered through and deprives counsel of an opportunity to have a meaningful conversation with the client. The court should budget for the construction of a series of closed-in booths such as are used in New York, Kings and Queens Counties. At the very least, it can employ some desks and chairs in a private area as is done in Bronx County. The fix for this problem is not an easy one, but it is vital to ensure that a person is properly represented before they appear before a judge who can set bail at a level that will keep them detained for the rest of the case.
II. Improper Detention Facilities that Allow Unscrupulous Attorneys to Troll for New Clients in the Detention Pens
In the pens, detainees wait to be interviewed by either the Legal Aid Society or their private attorney. Daily, however, they are also interviewed by attorneys looking for new clients by entering the detention facility unsolicited. They walk up to the pens and hawk their services to the masses for as low as $200 per case. How do I know? First of all, we all know from routine practice that this occurs. The regular practitioners and judges even know the lawyers who do the trolling. How can we not? The one main culprit signs up 4 or 5 cases in each part and all he has for a file is a slip of paper with the clients name on it. But come into District Court on a Saturday or Sunday and you’ll see the same attorneys who are always there and have no specific client that they are there for. Why are they in court? One of them even graciously offered to cover my arraignment for me one Saturday as he told me “he was going to be there all day.” When I asked him how he knew he was going to be there all day when most arraignments happen rather quickly for private counsel on Saturdays he had no answer. But I also know of this practice because it has been repeatedly described to me by my clients. Most recently, an attorney advised that he charged $250.00 for an arraignment but was willing to do the arraignment for free if the client had no available funds and just promised to pay the attorney later. He offered this “Pay me Later” approach to all those detained in the cells and a few took him up on it. It was this brash client-chasing that prompted me to write this letter when my client retained me after arraignment and told me this story. Last year, when a similar story was relayed to me by another client, I wrote a letter to the administrative judge of the District Court and copied the Sheriff’s Department about the practice of “fishing for clients.” I met with the judge who was very appreciative of the information and promised to have a word with the attorneys involved. Legal counsel for the Sheriff’s Department contacted me and said that unless I was willing to divulge the names of the lawyers I suspected of this conduct, they would not consider implementing some of my suggestions (discussed below) to remedy the problem. I advised the Sheriff’s attorney that she could get the names from her officers who are in the pens and know exactly what I am talking about. They allow it either directly or implicitly. I didn’t give her the names because I was aware then as I am aware now that a complaint of this nature could mean having one’s license to practice suspended or revoked. I felt that the offending individuals should have some opportunity to correct their behavior after the conversation with the administrative judge. Well, it either never occurred or it didn’t work, because the practice continues to this day.
This practice not only violates the disciplinary rules, it demeans and debases our profession. It puts undue pressure on those detained to make a quick and cost-free or cheap decision on counsel without an assessment of their qualifications. It takes money out of the pockets of lawyers who play by the rules. This problem is much easier to fix than the previous issue. The court need only implement a procedure followed in every other metropolitan area arraignment court. Private attorneys may only gain access to the detention area after having filed a notice of appearance with the clerk of the court. In New York, for example, the clerk gives you a document called a “Notice to the Warden” that allows you to enter the detention area in the basement of 100 Centre Street. In the other boroughs, the bridge officer and/or the officer at the gate asks you for your client’s name to check to see that a notice has been filed. You can’t just gallivant in and start selling yourself. There – problem solved as easy as that.
I believe that the New York County method is best, though we all know how clerks will feel about the added “work.” But the other methods would work as well, as long as deputy sheriffs enforce it properly and don’t look the other way. Of course, if there were a proper interview area, then the deputies would have to first pull out the client you are interested in speaking with, so fixing the first problem will go a long way to fixing the second problem.
III. Failure to Timely Provide the Defense With a Copy of the Complaint
Even if you are somehow able to get to speak privately with your client, your conversation in Nassau would be very limited because you do not get a copy of the complaint prior to arraignment. Once again, Nassau County stands alone as being the only area court that does not routinely provide defense counsel with a copy of the complaint prior to arraignment. It is usually first handed to you when the case is called on the record. Before that, the only information you have about the actual charges to be filed at arraignment is the penal code section listed next to your client’s name on the calendar.
This practice forces you to quickly scan the complaint as you place your appearance and enter your client’s not guilty plea on the record. Sometimes, you find yourself facing charges and allegations drastically different than what your client related to you through the bars during your non-private communication with him down in the pens. Each of these issues accumulate to give the defendant a distinct disadvantage at arraignment.
The remedy here is simple. When you file a notice of appearance you get a copy of the complaint. Just like every other county provides. If the complaint is not yet ready, then when the file is brought into the courtroom and the calendar is posted on the wall, provide defense counsel with a complaint at that time. The attorney can then make a case-by-case decision as to whether the client should be brought up at that time or whether it is best to re-interview the client with the complaint in hand. The slight delay is better than being caught off-guard and finding yourself appearing like Ralph Kramden from the Honeymooners. There is simply no reason why the complaint should not be made available to defense counsel in sufficient time so as to allow for a meaningful interview and cogent argument. As an added note, Nassau County is also the only County that puts the defendant’s home address on the front of the complaint. That allows lawyers to buy the calendar, get the home addresses from the files they want and send solicitation letters home to the defendants. Never mind that their spouses may open the letters or that others may find out about a criminal case that they wanted to keep private – I mean the lawyers want their $200 right?
IV. Requiring the Defense to Argue First on the Issue of Bail
The other advantage given to the District Attorney’s office is the order of the bail application. Nassau County again stands alone as the only county that requires the defense to speak first on the issue of bail. In my opinion, this is in contravention to the Constitution and the bail statute. The burden of proof on the issue of bail rests with the prosecution. It is their obligation therefore to address the issue first. I have had judges glare back at me as if I cursed out loud in the courtroom when I have stated that I want to hear the People’s position on bail before making a bail application. When I am then ordered to proceed first, I was told “That’s how we do it here counselor.” I know, but why? If the People intend to seek bail, they should make their argument first, especially since they have had a longer opportunity to familiarize themselves with the complaint.
There is simply no reason for the current method.
V. So What Can Be Done?
First let’s recognize that it is wrong and detrimental to our system of justice for us to look at these issues and say “Well, that’s how it is.” It’s weak to just shake our heads at each other in the hallway and sigh, “Its Nassau County, what do you expect?”
We should expect more from our courthouse and from ourselves.
Many of the changes I suggested can only take place if the court administration and the Sheriff’s Department agree that they must be implemented. It is also imperative that the Legal Aid Society, which does the bulk of the arraignments, gets behind making changes as well. On that note, I would like to relate a story told to me by a seasoned practitioner while we were waiting for our clients to be arraigned. In the 1980s, the detention area in the Brooklyn arraignment part was a horror show. Attorneys were relegated to interviewing defendants in crowded, caged booths that reeked of human existence. Rats would scurry on the caged top of the booth while roaches scampered across the floor at the bottom. The Legal Aid Society took action by refusing to waive the reading of the rights and charges at any arraignment, thereby clogging the system to a near halt. The court administration agreed to sit down to remedy the situation and the result was new arraignment courtrooms. Action as drastic as that may not be necessary, but all parties should come to the table to address these issues or Legal Aid should look for test cases or a class action to challenge these issues in the appellate courts. Many changes in the criminal justice system have come from that methodology.
The applicable Bar Association committees need to get together with Legal Aid to meet with court administration. A dialogue is necessary to identify problems and agree on the remedies. Easy changes should be implemented immediately while a plan to fix the other issues should be put in place with a definite timetable.
People charged with offenses have a right to fairness and justice at every stage of the proceeding. We have all become complacent and conciliatory in accepting the status quo. Let’s bring Nassau County in line with the rest of the courts in the region to provide a fair and equitable arraignment process.
 Understand that I am not talking about getting retained by another detained individual when you are speaking to your already-retained client. That happens often and is not a violation because you did not solicit their business.