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NYC public defenders threaten to sue state to stop in-person criminal proceedings

July 14, 2020 David Brand
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A group of New York City public defender agencies have threatened to sue the state’s Office of Court Administration in a last-ditch effort to stop the resumption of in-person criminal proceedings during the COVID-19 crisis.

In a letter to Chief Administrative Judge Lawrence Marks on Sunday, the heads of the Legal Aid Society and four other public defender organizations said the “rushed return to in-person operations” violates federal law while jeopardizing the health and civil rights of defendants and attorneys. They urged the state to halt in-person appearances so they have more time to prepare for a safe return to court buildings.

“If OCA does not agree to pause the calendaring of in-person appearances by the end of the day tomorrow, July 13, 2020, we will have no choice but to pursue any action available to us by law to protect our clients and staff, including if necessary seeking relief in federal court,” the public defenders wrote in the letter.

State court officials shared a copy of the letter with the Eagle Monday morning.

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The public defender groups previously assailed the resumption of in-person proceedings in a July 8 letter to Marks. In both letters, they say the decision came as a surprise after they received contradictory information from OCA earlier this month.

They write that in-person criminal proceedings amid the COVID-19 pandemic would violate the Americans with Disabilities Act by forcing defendants and public defenders to come to court, even if they have disabilities or pre-existing medical conditions that make them particularly vulnerable to the illness.

“The timing of this order will prevent people with disabilities — our offices’ clients and their attorneys — from requesting and receiving the reasonable accommodations they need to safely attend and participate in court proceedings and do so without fear of incarceration if they assert those needs and rights,” they write.

Public defenders with disabilities “will be forced to potentially forgo the process currently developed by our offices and endanger their lives in order to represent their clients,” they continue. “The ADA does not permit OCA to force attorneys to choose between risking their health or being removed from representing their clients.”

The letter is signed by the head of Legal Aid’s Criminal Defense Practice, Tina Luongo; Bronx Defenders Executive Director Justine Olderman; Brooklyn Defender Services Executive Director Lisa Schreibersdorf; New York County Defender Services Executive Director Stan Germán; and Neighborhood Defender Services of Harlem Executive Director Matthew Knecht.

The five attorneys also say in-person proceedings threaten defendants’ constitutional rights to an attorney and due process while contradicting an earlier executive order from Gov. Andrew Cuomo. They have interpreted the order to mean that in-person appearances require consent from both the prosecution and defendant.

In the letter, they specifically cite the impact of COVID-19 on low-income communities of color, which account for a vastly disproportionate number of defendants arraigned in New York City criminal courts.

“We do not believe there is any legitimate government interest in suddenly forcing hundreds of predominantly Black and brown people to abandon social distancing protocols that have slowed the pandemic,” they wrote July 12. “This would require people to leave their homes — in communities with high infection rates — to attend non-essential and unnecessary court appearances, which increases risks to people appearing, their families, court personnel, and the community.”

Arraignments and case conferences have been conducted remotely since March, when the court system shut down in-person proceedings to stop the spread of COVID-19. The public defenders say there is no reason to change a temporary system that has worked to limit the spread of the illness.

The rate of COVID-19 has decreased significantly in New York City in recent months after spreading among court personnel, attorneys and defendants. Public health experts warn of a resurgence as COVID-19 surges elsewhere in the country, however. Earlier this month, a clerk in Queens Criminal Court went to work after traveling to Texas and found out that she tested positive for COVID-19 during her shift, the Eagle reported.

OCA spokesperson Lucian Chalfen said the court system has gradually resumed in-person operations and public defender organizations have already agreed to some appearances.

“As we begin our entirely legal plan for a slow return to normalized operations, with a focus on personal health and safety, we are calendaring approximately 10 in person cases a day in each court,” Chalfen said. “The defender organizations had already agreed to, and we have already held, in-person appearances for some of their clients.

“Now they want the court system to regress, offering no solutions, only demands,” he added.

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