Web Exclusive: Stacking the Legal Deck

In Housing Court, some judges are known to bellow out to defendants in English, Spanish or Creole, “How much money do you have now?” And it’s said that “you better settle because if you go to trial, you’ve got to pay up all your rent arrears within five days or be removed by the marshal.” 

At the State Supreme Court, it’s “you better settle because a trial will cost you $10,000.” In Criminal Court, it’s “you better accept the plea because you’re facing a much longer sentence if you are convicted.” 

New York has just 1,218 judges who handle 4.5 million filings statewide annually. Top prosecutors’ salaries exceed judges’ salaries by almost 50 percent. 

On this legal terrain, all but the wealthiest defendants find the odds of being able to receive a fair trial stacked against them. 

The Trial Penalty

In Criminal Court, defendants who take their cases to a jury trial must be prepared to pay a severe price — one that is exacted by overburdened judges and overzealous district attorneys. While the trial system embraces the presumption of innocence and the right against self-incrimination, prosecutors are given unfettered discretion to pile on charges. Under such circumstances, to resist a plea bargain offer and risk going to trial often means facing many extra years or decades in prison if found guilty. Yet, this trial penalty is rarely recognized as an unjust burden on the presumptively innocent. Prosecutors’ organizations zealously advocate for maintaining their discretion to level charges, because, as they say, it helps them “compel defendants to cooperate.”

Also, New York is recognized as one of the worst states in turning over evidence to defense counsel, with it generally not being made available until a jury begins to be assembled. This practice is especially pernicious in the Manhattan DA’s office. How can an individual or a lawyer meaningfully assess the risk of going to trial without knowing what might be brought out by a detective or an informant? 

The Legal Aid Society perennially campaigns for mandatory discovery within 15 days of arraignment and Assembly member Joseph Lentol (D-North Brooklyn) introduced a bill again this year to require the timely sharing evidence, but there are no immediate prospects it will become law.

Judges like Ronald Zweibel — who presided over the police assault case of Occupy Wall Street protester Cecily McMillan — and who are known for their pro-prosecution views further create an environment in which prosecutors have less incentive to engage in good faith plea negotiations.

Rules of Evidence

Finally, any seasoned legal practitioner knows the rules of evidence and knows that there is great room for interpretation and application. The rule against hearsay has myriad exceptions, not all of them accepted by all judges. The standard operating rules used by trial attorneys can come into conflict with other established rules, such as happened in the Cecily McMillan trial, where the majority of the defense’s proof was ruled to be just more of the same, and so kept out as “cumulative” evidence. 

One argument McMillan’s attorney Marty Stolar will be making on appeal is the failure of Judge Zweibel to give “a missing witness” charge to the jury. Officer Grantley Bovell, who claimed to have been struck in the eye by the then 25-year-old New School graduate student, testified that his entry into the picture came after McMillan encountered an unnamed female officer that riotous night of March 17, 2012, and that he’d attempted to “calm” McMillan and walk her out of the park. This unnamed female officer was thus an eyewitness to the interaction, which led to the arrest, and the Judge should have required the prosecution to produce the officer to testify and be subject to cross-examination. Another error, hardly harmless, was Judge Zweibel’s refusal to even review Officer Grantley Bovell’s record of four other instances of on-the-job misconduct in addition to his role in the Bronx ticket fixing scandal.

Given all that McMillan suffered when she was arrested on the night of March 17, 2012 (the apparent groping of her right breast by Officer Bovell, the violent seizure she experienced while in police custody and the traumatic aftermath of being beaten, falsely charged and put on trial), the Appellate Division has the authority to reduce the felony conviction she received to a misdemeanor, or even dismiss the entire case, in the interest of justice. 

Ann Schneider is a practicing attorney and member of the New York City chapter of the National Lawyers Guild. The opinions expressed in this article are her own. For more on the Cecily McMillan case, see here.