This story was published in partnership with New York Focus, an independent news and investigative site covering New York City and State politics. Subscribe to their newsletter here.
At the end of June, a New York appeals court issued a landmark ruling aimed at preventing people from being unnecessarily homeless or separated from their families during their criminal cases. But a month later, the decision is overturned by the court system, defense lawyers say.
The fight centers on the protection orders that judges routinely impose on defendants, ordering them to stay away from people to whom they pose a potential threat.
In a June 24 ruling in a case known as Crawford, a state appeals court ruled that when a proposed protection order threatens to deprive defendants of “substantial” interests – such as l ‘access to their homes or their children – a court is expected to hold a hearing shortly. after issuance of the order to determine if it is really necessary.
The decision was widely seen as a game changer. âA judge’s order left her homeless. A new decision will help others like her, âread the headline of a New York Times article recounting the saga of plaintiff Shamika Crawford, who was barred from entering her Bronx home following ‘a complaint from her boyfriend.
Defense lawyers say the ruling brings a long-needed change to a status quo in which judges routinely issue protection orders at the request of prosecutors, without fully considering the negative consequences for defendants.
“These orders have been approved by the courts with no possibility for the defendants to challenge them,” Meghna said. Philip, lawyer with Neighborhood Defender Services. “Our clients are displaced from their homes, unable to see their children or spouses, or to care for their elderly parents.”
Defense lawyers had hoped for an end to such ordeals – and some have successfully called on judges to reconsider the harsh restrictions. But in the weeks after the ruling, they say, many judges barely budged, effectively denying people like Crawford their new right to a review.
Judges can draw inspiration from a memorandum produced by the agency that manages New York’s courts, the Office of Court Administration.
Addressed to court administrators by a lawyer in the court system, the memo emphasizes – using bold type – that the decision “should not be read to require live witnesses and / or non-hearsay testimony. This gives judges the ability to hold a hearing that simply uses evidence that prosecutors have already presented in their case.
The memo goes further by discouraging judges from allowing witness testimony – saying that “anything near a full testimony hearing” would be more than the courts can handle, with “a significant negative operational impact.”
“The note is that kind of ahistorical effort to … ask the trial judges to take the most restrictive reading of the decision, whether that reading is actually supported by the case or not,” Jonathan Oberman, professor at the Cardozo Law School specializing in criminal law. law, told New York Focus.
Lucian Chalfen, spokesperson for the Office of Courts Administration, responded that it is “normal practice to issue contextual memos on cases that may have significant operational implications for the courts.”
Some lawyers have had success using the Crawford decision on behalf of their clients. âI got all these emails from attorneys who said, ‘Oh, I used it, that’s awesome! “Legal aid lawyer Corey Stoughton told The New York Times.
And in other cases, the ruling had led some prosecutors and judges to “think twice” before seeking and granting prosecution orders, Philip told New York Focus.
But defense attorneys practicing in several boroughs told New York Focus judges were enforcing the decision very limited, if at all.
âWhat we have seen so far is disturbing. There is a legitimate concern that the Crawford decision will not be followed, at least initially, in Kings County, âsaid Matt Robison, lawyer at Brooklyn Defender Services. Defense attorneys practicing in Queens, Manhattan and the Bronx have expressed similar concerns.
Homeless by judge’s order
Crawford was left homeless for almost three months when a judge issued a protection order against her after her boyfriend accused her of assault. The order denied her access to her own apartment and prevented her from seeing her two children. It was lifted when the criminal complaint against her was dismissed – as most cases involving protection orders ultimately are – 88 days later.
Crawford and his legal team sued the judge who issued the protection order, arguing the court should have held a hearing to determine whether the move was necessary, rather than simply relying on prosecutors’ requests.
“There are certainly situations where full protection orders are warranted and necessary, but that cannot be the default, as there are too many devastating consequences to it,” said Eli Northrup, Crawford’s attorney and attorney. at Bronx Defenders.
In a unanimous decision, a panel of four judges ruled that not only should a judge have held a âspeedyâ hearing on whether to uphold the protection order, but that all of the trial courts in the state of New York is expected to do so in similar issues. situations.
“If it is not scuttled by the courts, it is a major effort on the part of the First Department [appellate court] to rebalance the rights of indigent people that had been really trivialized by the massive issuance of protection orders, âOberman said.
A vague decision
The appeals court declined to detail what hearings reviewing protection orders should look like – opening up the possibility for the Courts Administration Office to give judges its own guidelines on how to conduct such hearings.
The memo is dated June 27, just three days after the Crawford decision was released.
The memo – which Oberman called “one of the most explicitly cynical responses the court administration could give” to the ruling – serves to limit the scope of the ruling in Crawford’s case.
By emphasizing that witness testimony is not necessary, the Crawford Case Note’s view gives judges the latitude to accept a prosecutor giving a second-hand account of the alleged actions, or a police report. uncorroborated from an incident, as sufficient to show that a protection order is warranted. .
Brooklyn Law School professor Kate Mogulescu has questioned whether using unsubstantiated police reports to argue for a protective order is in keeping with the spirit of the ruling.
“This only repeats the facts which are usually recited in the [criminal] complaint. It doesn’t seem to fulfill the role that the Crawford court envisions, âshe said.
Per the memo, judges ruled that presenting criminal complaints or police reports was sufficient to meet Crawford’s demands in several hearings since the decision was rendered, defense lawyers have said. In a Bronx Criminal Court hearing attended by a New York Focus reporter, a judge explicitly denied that witness testimony was required to meet Crawford’s claims.
The memo also argues that the Crawford-mandated hearing The decision can be made at arraignment, the initial phase of criminal proceedings in which a judge has a first opportunity to issue a protection order.
But the speed at which indictments are being conducted through New York courts – usually within minutes – would make conducting full hearings at this stage of a criminal proceeding impractical, if not downright impossible, said Northrup.
âThis is the problem Crawford is trying to solve. We understand that arrests are a very turbulent time. You need to have a quick evidence hearing right after to make sure [an order of protection] is justified, âNorthrup said.
Kim Barr, a lawyer at Queens Defenders, said that in the days following the Crawford decision, she faced a judge who attempted to complete the required hearing on arraignment.
His elderly client, who uses a wheelchair and is medically disabled, had been charged with assault and harassment by his girlfriend, with whom he shared a rented apartment in his name.
The judge was considering making a full protection order, which would have resulted in Barr’s client being denied access to his home.
When Barr called for a hearing to be scheduled, the judge argued that the arraignment itself was the hearing mandated by the Crawford decision.
âHis immediate response was: ‘This is the hearing, the defendant is not entitled to an additional or separate hearing, I have reviewed the defendant’s report card and the allegation in front of me, and I render the full order. ‘”Barr mentioned.
A full protection order has been issued against Barr’s client, who has been banished from his home and is currently awaiting trial while living in a homeless veterans shelter. He hasn’t had a chance to challenge the entire protection order since the arraignment, Barr said.
Robison also described a recent impeachment judge categorically dismissing a request for a hearing when a protection order threatened the ability of two of his clients to see their children.
Although the judge provided a way for clients to see their children without violating the terms of the order, a Crawford hearing was not scheduled.
“The fact that the judge was unwilling to grant the hearing was of great concern,” said Robison. “Given the information presented in court and the stake – a parent’s ability to see their children – Crawford was certainly involved.”