Pubdate: Tue, 2 Feb 1999
Source: New York Times (NY)
Copyright: 1999 The New York Times Company
Contact:  http://www.nytimes.com/
Forum: http://forums.nytimes.com/comment/
Author: David Rohde

ARRESTS SOAR IN GIULIANI CRACKDOWN

New York City's Criminal Courts are overwhelmed by a flood of cases as the
Police Department, responding to the Giuliani administration's
quality-of-life campaign, makes hundreds of thousands of arrests a year for
everything from subway fare beating to reckless bicycle riding to marijuana
possession.

Major crime is at a record low in the city, but judges, lawyers and court
administrators say the crush of lesser offenses is delaying trials, leading
to an increase in dismissed cases and requiring witnesses and defendants to
return to court repeatedly to resolve minor cases.

The reason for the logjam is simple. The number of judges has stayed roughly
the same, while misdemeanor cases have soared by 85 percent since the early
1990's. Court officials said that in 1998, 77 judges handled a record
275,379 cases -- about 3,500 cases each -- in the city's Criminal Courts,
which deal with misdemeanors involving sentences of less than a year in
jail, like minor assaults, drug possession and shop-lifting. For defendants
who want to fight charges, the average waiting time for a misdemeanor trial
is 284 days, up from 208 days in 1991.

With rare unanimity, prosecutors, defense lawyers, court administrators and
officials in the Giuliani administration agree that this latest burden on a
system that has long been stretched to capacity is hampering the judicial
process. Prosecutors complain that savvy defendants play the trial delays to
their advantage, hoping that the deadline for trial will pass or that
discouraged victims will eventually give up.

"They manipulate the system until they get the charges dismissed," said the
Manhattan District Attorney, Robert M. Morgenthau.

Since 1993, the percentage of charges dismissed because the legal deadline
for a speedy trial has passed has increased by 20 percent. Defendants
complain that trying to fight even minor charges takes so long that going to
court is a punishment in its own right. "People have jobs, people have
things they need to do and you make them come back to court five, six or
seven times," said Michelle Maxian, the Legal Aid Society's director of
litigation. "People lose respect for and faith in the system." The problem
is occurring in other parts of the country, said Neal Kauder, a researcher
for the National Center for State Courts. Despite decreases in major crimes,
a combination of tougher laws, federally funded anti-drug efforts and bigger
local law enforcement agencies have meant many more drug arrests. At the
same time, he said, courts have not grown to handle the volume. "The
emphasis is on law enforcement, not on the judiciary," he said. In New York,
there is a seemingly simple solution: hiring more judges. Court
administrators say New York City needs 23 more Criminal Court judges, but
getting them is politically difficult. Republicans and Democrats in Albany
guard judgeships as valuable political appointments, and they have been
unable to reach a compromise on increasing the number of judges around the
state. Another solution would be moving justices from the city's Supreme
Courts, which hear more serious felony cases, to Criminal Court. Felony
cases have leveled off with the drop in crime, but shifting justices would
essentially mean demoting the system's more experienced and, in some cases,
most politically connected judges.

As a result, the city's courts remain set up to handle the flood of
drug-related felonies of the 1980's and early 1990's, and have not adjusted
to the drop in major crimes and the new police emphasis on lower-level
offenses. The strain on New York City's system could be seen one morning in
December in the Jury 7 courtroom of the sprawling Manhattan Criminal Courts
building. At 9:30, Judge Robert A. Sackett tried to urge dozens of
defendants and prosecutors into beginning trials or agreeing to plea
bargains that would resolve the 64 cases on the docket that day. Five cases
dated to 1996. Twelve dated to 1997.

One of the first cases called centered on three men charged with assaulting
a cabdriver after a September 1996 car accident. Judge Sackett tried to find
a way to schedule the two-week trial before Christmas, but no judges were
available. Giving up, he tried to find a date in January, but a lack of
judges again derailed him.

He ordered the three men to come back again on Jan. 15, hoping a judge would
be available then. (Their trial is now scheduled for March 2.) An August
1997 assault case was called. Frank D'Angelo, 35, was arrested and charged
with punching a construction worker who was using a jackhammer outside his
Upper West Side home at 10 on a Saturday morning. The prosecutor, Julie
Nobel, accused Mr. D'Angelo's lawyer of trying to delay the trial until
charges were dismissed under speedy trial rules. "The people have almost
always been ready," Ms. Nobel said. "The defense counsel has never been
ready." Mr. D'Angelo's lawyer, Anthony Lombardino, angrily denied that.

Judge Sackett proposed a trial the following week, but Mr. Lombardino said
he had another trial.

The next available date was Jan. 25, but Judge Sackett was not sure if a
judge and courtroom would be available. He ordered the two sides to return
to court last Friday for a trial to begin this month. The clerk called
Barton Campbell, 35, a subway token booth clerk and punk rock musician who
was arrested on July 10, 1997, for dancing on the steps of City Hall with an
unloaded rifle while filming a music video. Both sides were ready for trial
on charges of menacing and illegal weapons possession, but no judge was
available. Mr. Campbell was ordered to return to court on Dec. 14. (He did,
but prosecutors were not ready for trial and he was told come back on Jan.
19. He did, but no judges were available. His trial is now scheduled for
Feb. 16.) Suspended from his job without pay until the charges are resolved,
Mr. Campbell said he was desperate to go to trial. "I feel like in the end
I'm going to win," he said. "Meanwhile, my life is falling apart." The
morning ended in a shouting match. David Affler, the defense lawyer for a
30-year-old woman who had waited nearly four hours to plead guilty to drug
possession charges, began screaming when court officials broke for lunch
without calling her case as promised.

"Last time I was here until 6:30 at night," said the woman, Holli Meisel.
"This time I got here at 9 this morning. All I want to do is make a plea."
The day concluded with none of the 88 cases Judge Sackett called being sent
out to trial. Court officials said the judge shortage was especially acute
that week; four judges, not two, are usually available. The officials also
pointed out that the number of trials increased last year for the first time
in five years.

"We did better last year," said Judge Judy H. Kluger, who oversees Criminal
Court in the city. "But we're still not where we should be," she said,
because too few trials are being held. Despite a near doubling in the volume
of cases, the number of trials held in Criminal Court dropped to 758 in 1998
from 967 in 1993.

Court administrators say the reason is that most of the Criminal Court
judges and resources are devoted to processing the record number of arrests.
By law, all people arrested in the city, whether for murder or shoplifting,
must appear before a judge in Criminal Court and be arraigned within 24
hours. At arraignment, a judge can dismiss the case, order jail pending
trial, set bail or offer a defendant facing minor charges a plea bargain.
Court administrators said the arraignment system had become far more
efficient in recent years, with the 24-hour deadline being met despite a 40
percent increase in arrests. But the number of trials cannot rise
significantly without more judges, prosecutors and defense lawyers agreed.
"You can't keep putting all the resources at the beginning of the system
without realizing that the arrests require additional resources to put them
through to the end," said Ms. Maxian of Legal Aid. "Everyone is stocking the
shelves, but no one is checking out the customer."

Steven M. Fishner, Mayor Giuliani's Criminal Justice Coordinator, said
criminals were escaping punishment because of the judge shortage. The number
of cases dropped because trial deadlines expired grew to roughly 12,000 in
1998, from roughly 6,700 in 1993, court records showed. "The impact of the
Police Department's work in driving down crime can potentially be lost," he
said.

Judges say defense and prosecution delays add to the problem. They say that
when judges are available to preside, court-appointed defense lawyers, who
often handle more than 100 cases at a time, frequently are unavailable.
Prosecutors have the same problem, they say.

Mr. Morgenthau said his office, like the court system, has had to shift
staff and resources to process arrests quickly. He has expanded the staff
and the hours of the complaint room that handles new arrests, he said. His
office has assigned another six prosecutors to Criminal Court each year
since 1995.

"They do need more judges and we need more assistants," he said. "Something
has to give."

If the solution to the problem lies in Albany, state lawmakers have been
unable to find it, court administrators, academics and court monitoring
groups said, even though fundamental reform of the state court system has
been discussed for nearly 40 years. A series of compromises on the issue has
resulted in a convoluted system in which judges are used inefficiently, they
said. "We have a hodgepodge of courts and judges that are separated by
artificial boundaries," said Judge Jonathan Lippman, the state's chief
administrative judge. "There isn't the flexibility to move judges where they
are needed." Court administrators said that for the last two years they have
asked the state legislature to either create 60 to 70 new judgeships across
the state or make it easier to move judges among courts where needed. "A big
problem is partisan politics," said Barbara E. Reed, acting executive
director of the Fund for Modern Courts, a nonpartisan court monitoring
group. "Various constituencies have an interest in keeping the system the
way it is."

New Criminal Court judgeships in the city, for example, would require
Democrats in the Legislature to approve the jobs, which would be filled, at
least temporarily, by Mayor Rudolph W. Giuliani, a Republican. In other
parts of the state, Republicans oppose adding judgeships in areas controlled
by Democrats.

There appears to be some movement in Albany to address state court problems.
Judge Lippman said a reorganization plan sent to the Legislature last year
by Chief Judge Judith S. Kaye would be resubmitted.

In his State of the State Message last month, Gov. George E. Pataki called
for meaningful court reform. Pat Lynch, a spokeswoman for the Assembly
Speaker, Sheldon Silver, said she had no comment on the issue. But Senator
James J. Lack, chairman of the State Senate Judiciary Committee, a
Republican, cautioned that while everyone agreed that the court system
needed help, brokering a deal was another matter. "There is a need for
judges throughout the state," he said. "But those things never happen in a
political vacuum."

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