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News

NYC PUBLIC DEFENDERS OPPOSE FEDERAL COURT DECISION TO ALLOW THE DANGEROUS RESUMPTION OF IN-PERSON, NON-EMERGENCY COURT PROCEEDINGS

July 28, 2020

 

Redmond Haskins, The Legal Aid Society (RHaskins@legal-aid.org)

Daniel Ball, Brooklyn Defender Services (dball@bds.org)

Esther Kao The Bronx Defenders (estherk@bronxdefenders.org)

Lupe Todd-Medina, New York County Defender Services (LToddmedina@nycds.org)

Sam McCann, The Neighborhood Defender Service of Harlem (SMccann@ndsny.org) 

Hettie Powell, Queens Defenders, (hpowell@queensdefenders.org

 

NYC Public Defenders Oppose Federal Court Decision to Allow the Dangerous Resumption of In-Person, Non-Emergency Court Proceedings

 

(NEW YORK, NY) – A federal judge today denied a request from New York City public defenders to halt the recent resumption of in-person, non-emergency court proceedings in New York City until a thorough and comprehensive re-opening plan can be put in place. 

The Bronx Defenders, Brooklyn Defender Services, The Legal Aid Society, Neighborhood Defender Service of Harlem, New York County Defender Services, and Queens Defenders issued the following statement in response to the Southern District of New York’s decision to allow the resumption of in-person, non-emergency court proceedings in New York City: 

“On the 30th anniversary of the Americans with Disabilities Act, we are enormously disappointed that the federal court relied on a technicality to allow the Office of Court Administration (OCA) to resume in-person, non-emergency court proceedings in a manner that violates federal disability law, ignores medical input, and recklessly endangers the health and safety of our clients, our staff, court staff, and New Yorkers. The decision by  the Southern District of New York to allow this unlawful plan to continue violates our clients’ rights and exposes the public to unnecessary risk. We will explore the options available to prevent further harm. 

OCA’s plan to reopen courts for non-emergency, in-person proceedings forces our clients to choose between their health and safety and their freedom, and violates the Americans with Disabilities Act in doing so. Moreover, the cases OCA seeks to schedule are not urgent: the people who are forced to come to court are people already at liberty. They were, like the rest of us, trying to work, care for our families, and stay safe. Their cases have not been indicted. There is no grand jury action. There is no reason to force anyone to pile onto public transit and into courtrooms for cases that are going to be adjourned, when the same result can be achieved over a virtual hearing. 

In fact: the first day that the court demanded in-person appearance, every case on the calendar was adjourned until August or September. Put plainly: OCA’s plan puts our clients – mostly low-income New Yorkers of color – at enormous risk for no compelling reason. We are disappointed that the Southern District of New York allowed OCA to continue down this reckless road. 

We worked with OCA for months to devise a plan that respects the rights of New Yorkers and protects public health, and jointly consulted medical experts to do so. OCA disregarded this input, instead choosing to reopen courts without regard for our clients’ rights and safety. The federal court dismissed the case on a technicality without ruling on the ADA claim, and we believe OCA continues to flagrantly violate the rights of people with disabilities every day its plan goes on. As we consider our next steps, we urge OCA to reconsider this approach, and instead wait for the opinion of medical experts before exposing New Yorkers to unnecessary risk during a pandemic.”

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News

NYC PUBLIC DEFENDERS FILE FEDERAL LAWSUIT TO HALT OCA’S RUSHED AND DANGEROUS DECISION TO RECONVENE IN-PERSON, NON-EMERGENCY COURT MATTERS

July 14, 2020

Redmond Haskins, The Legal Aid Society (RHaskins@legal-aid.org)
Daniel Ball, Brooklyn Defender Services (dball@bds.org)
Esther Kao, The Bronx Defenders (estherk@bronxdefenders.org)
Lupe Todd-Medina, New York County Defender Services (LToddmedina@nycds.org)
Sam McCann, The Neighborhood Defender Service of Harlem (SMccann@ndsny.org)
Hettie Powell, Queens Defenders, (hpowell@queensdefenders.org)

NYC Public Defenders File Federal Lawsuit to Halt OCA’s Rushed and Dangerous Decision to Reconvene In-Person, Non-Emergency Court Matters
 
OCA’s Proposal Violates the Americans With Disabilities Act, Fourteenth Amendment of the U.S. Constitution, and Rehabilitation Act of 1973

(NEW YORK, NY) – The Legal Aid Society, Brooklyn Defender Services, The Bronx Defenders, New York County Defender Services, Neighborhood Defender Service of Harlem and Queens Defenders filed a lawsuit today in the United States District Court for the Southern District of New York against the New York State Office of Court Administration (OCA) to prevent the rushed, dangerous, and unilateral decision to reconvene in-person, non-emergency court matters scheduled for Wednesday of this week.

The lawsuit argues that OCA’s proposal violates the Americans with Disabilities Act (ADA) by depriving thousands of people who have medical vulnerabilities or other disabilities the opportunity to seek and help develop necessary accommodations from the Court. This forces people to choose between their health and their liberty, because if they do not attend court they can have a warrant issued and potentially be incarcerated.

The in-person appearance order implicates fundamental constitutional rights, including, at the least, due process of law, protections against arbitrary action of government, and excessive exercise of government power.

To give but one example, this order has put public defenders in a position of having to advise clients that they might be imminently required to appear in court without knowing for certain which people will actually be affected, the posture of cases that might be selected, or whether the court’s COVID-19 planning will sufficiently protect people in court or will permit requests for reasonable accommodations.

Lastly, OCA’s proposal violates the Rehabilitation Act of 1973 which prohibits any entity that receives Federal financial assistance – including New York’s court system – from excluding a person with disabilities from participating in any of their programs or activities.

OCA’s policy does not consider a persons’ disability and does not provide reasonable modifications, including but not limited to virtual court appearances and enough advance notice of their court appearance, that people with disabilities need to participate safely and equally in these court administered programs.

The NYC Defenders stated: “For weeks, under the persistently trying conditions created by the coronavirus pandemic, we have attempted to work with OCA on the complicated task of balancing protection against COVID-19 infections, proceeding with cases, assuring due process, and ensuring access to the courts. OCA’s sudden issuance of an order requiring in-person appearances in criminal courts—without a clear plan to ensure the safety of people attending those proceedings—not only contravenes commitments made by OCA, but also fails to strike an appropriate balance among these compelling and sometimes competing interests. OCA’s proposal is illegal and we look forward to rectifying this situation for our clients and staff in Federal court.”

Background

On Thursday, July 9, 2020, OCA issued an order, which for the first time advised that in-person appearances would commence in New York City criminal courts on Wednesday, July 15, 2020 – less than a week later. This was contrary to OCA’s indications that in-person appearances were not imminent and that OCA would coordinate with health and safety experts retained by the NYC Defenders, as well as the epidemiologist retained by OCA, to assess the safety of court conditions.

This assessment and coordination has begun (with the knowledge, consent, and participation of OCA) but is not yet complete. The in-person appearance order violates this understanding, as well as the commitment of OCA to obtain and consider recommendations of their own epidemiologist who was to confer with experts hired by the defenders.

OCA provided no explanation for the abrupt refocus from maximizing virtual appearances to requiring in-person appearances, even where virtual proceedings remain feasible. Under the new order, people would be required to leave their homes—in communities with high infection rates—to attend non-essential and unnecessary court appearances, thereby increasing risks to people appearing, their families, court personnel, and the community. Throughout the city, people have suffered devastating consequences from COVID-19, consequences that are most severe for low-income people of color. People charged with crimes must appear when summoned to court or face revocation of bail, issuance of a warrant and potential incarceration.

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