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In the US, justice – even a trial – is elusive

In the US, justice – even a trial – is elusive

Courts throughout the world are grinding towards inequity as minor drug charges clog the corridors. This article, reporting on the situation in the Bronx in New York, shows how even an American protected by a Bill or Rights may be unable to have his day in court when he chooses to.

In the US, justice – even a trial – is elusive

The US justice system is held up as a vaunted touchstone of an American’s rights under the US Constitution in such a progressive country, the epitome of western civilisation, fairness and the rule of law.

But the reality, on the ground, for a black person or an Hispanic immigrant, or a white Caucasian entitled to those rights can be quite different.

In one case, 11 court dates over a minor marijuana charge were scheduled in the Bronx, that rambunctious district of New York where everything seems to go down, including the legal system. In 10 out of the 11 unsuccessful attempts to achieve a hearing, police and the prosecutors were not ready to appear. The result: after 523 days of legal limbo, of on-again, off-again worrying about the outcome, the case was dropped by the authorities.

Whether innocence prevailed or not, perseverance did. There is a saying that “Justice delayed is justice denied.”  No-one is sure who first spoke the pity aphorism. But Magna Carta of 1215 contains the same thought in the form of clause 40, which reads, “To no one will we sell, to no one will we refuse or delay, right or justice.”

Australia is far from immune from lengthy court delays, at both magistrates’ and Supreme levels. But, as the following article illustrates, in parts of the USA, justice appears now to be rationed by equation: C=EM2…where C is Court appearance, E is the ease of police processing, and M2 is the Magistrates’ Courts workload. If the case is more complex than a hand-it-up brief, uncontested, and the magistrates have lists as long as your arm, you’re likely to receive a different justice product than if you plead guilty to save your and everyone else’s time.

William Glberson writes in the New York Times that Francisco Zapata keeps a copy of the Constitution on his cellphone. When the police stopped, frisked and charged him with misdemeanor marijuana possession, he wanted what that cellphone document promised. “I was under the assumption,” he said, “that if I kept going back to court, eventually I would get my day in court.”

But this was the Bronx, Glaberson comments. Court delays of as long as five years in felony cases have pushed the Bronx criminal courts into the bottom ranks of courts nationally, reaching what even the judges call crisis levels.

That backlog has a less-noted companion. The courts are so dysfunctional that those accused of minor offenses — misdemeanors like trespassing or driving with a suspended license — have all but lost the fundamental guarantee of the American legal system: the right to a trial.

The case of Mr Zapata would usually be overlooked in the flood of 50,000 Bronx misdemeanor filings a year. But he was part of a special legal-defense effort led by the Bronx Defenders, which provides legal representation to poor Bronx residents charged with crimes. That effort tested the borough’s courts by trying to bring 54 misdemeanor marijuana possession cases to trial for clients who had been arrested as part of New York City’s controversial stop-and-frisk program and wanted to fight the charges.

Instead, these defendants got a through-the-looking glass criminal justice system where charges that were punishable by a maximum sentence of three months in jail could take many times that just winding toward an always elusive trial. And when the increasingly elastic, speedy-trial rules of the Bronx were finally stretched too far by delay after delay, prosecutors would sometimes drop the cases as if they were never quite worth their time anyway.

Eventually, the effort by the Bronx Defenders, in partnership with the Wall Street law firm Cleary Gottlieb Steen & Hamilton, was scrapped. The grim conclusion was that the borough’s courts were incapable of giving defendants the hearings that people expect. Of the 54 cases, not one ended in a trial.

“The normal rules about being ready and having your day in court just don’t apply,” said Lev L. Dassin, a former acting US attorney in Manhattan who was the Cleary Gottlieb partner in charge of the firm’s work on the project. “It’s appalling.”

The rights of the accused were not the only ideals compromised. The inability to get a judge to provide a complete hearing or a full decision in a single case meant the Bronx courts ignored pressing constitutional questions about the city’s controversial stop-and-frisk program.

There were no hearings that allowed Bronx judges to wrestle with the fraught issues of public safety versus civil liberties, and no rulings that provided the police with firm guidelines about what the Constitution allowed when someone was searched in the street.

The Criminal Court’s absence from the debate is particularly glaring in the Bronx, where nearly 1 in 10 residents were stopped and frisked by the police in 2010 and 2011, according to new data compiled by Columbia University.

For years, trials have been vanishing in the lower criminal courts around the country, transforming them into plea-bargaining mills. That trend can upend basic legal concepts, creating such profound disincentives to fighting a case that the accused are effectively treated as if they are presumed guilty rather than innocent. In New York, critics have long said the city’s Criminal Courts have so abdicated their function that it is a stretch to call them courts at all.

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