Why Cases can Drag on in New York City Criminal Court.
One of the more common concerns of people who are encountering the New York City Criminal Court system for the first time involves either worry that the case is taking far too long, or worry that trial of the case is just around the corner, even if the arrest occurred last week. What this boils down to is a general lack of experience with the Criminal Courts and therefore having nothing to compare their situations to other than the rocketlike speed that cases progress in movies and television shows.
People, for example, will call me to consult about criminal case in New York City, after having been released from arraignments and advised to return to Court with a lawyer. And they will be in a panic because the "trial" is just a week or two away.
And this is a bit of a "good news / bad news" opportunity in the conversation. The good news is that the next court appearance isn't the trial date, so that pressure is off. But the bad news is that if the case is ever tried, the odds are the trial won't happen much sooner than a year later. This transforms anxiety about a looming trial date into anxiety about having to live with the nightmare of criminal charges (with all the baggage of multiple court dates) for the next year.
What is Taking So Long?
There are several reasons that it takes upwards of a year for most cases to get to the point of a trial in the New York City Criminal Courts, and many of those reasons are things that are meant to help the accused, believe or not.
(But before we go any further, allow me to interrupt this and remind the reader that as a purely statistical matter, the likelihood of any criminal case in New York City Criminal Court actually being tried is extraordinarily small. Most cases, as in more than 95% of all cases, will NOT go to trial. So when you learn that it takes upwards of a year for almost anything to get to trial, don't panic and assume that your case is going to take upwards of a year to conclude.)
Motion Practice - For Your Benefit
One of the causes for delay before trial is to allow your lawyer time to file legal motions regarding some pretty important issues of evidence at trial. While favorable outcomes resulting from these "pretrial motions" are in truth rare, those rare favorable outcomes can damage or even in some cases destroy the Government's case against you. Wouldn't it make sense to have your lawyer file these motions?
Motion practice takes time because 1) Your lawyer needs to prepare and file these specialized, custom motions, 2) the Government needs time to respond, and 3) the Court needs time to review the motion and the response, time to consider the issues, and time to prepare a decision. If the Court's decision involves granting a hearing or two, which it often will, then the business of scheduling a hearing around the prosecutor's schedule, the defense lawyer's schedule, the Court's schedule, and the witnesses' schedules needs to be attended to. And then it will often be that scheduled hearing dates need to be rescheduled because an attorney is suddenly unavailable or a witness is unavailable, or the Court is too busy engaged in other matters. In this way, cases on a path toward trial have a way of lingering in the system.
Once the hearings are conducted, often the lawyers will require time to order the transcript of the hearing in order to prepare written legal arguments about how they think the Judge ought to rule. This requires that the Court Reporter be given enough time to get those transcripts prepared and out to the parties and the Court.
Finally, once the Court makes a decision on the pretrial hearings, the case is scheduled for trial, and the whole scheduling process occurs all over again.
The Practice of "Hearing into Trial" - when Due Process Dies a Little
With this logistical hurdle in mind, some courts, like Manhattan Criminal Court, will schedule cases for "hearing into trial" on the theory that once all the parties are together, it seems a shame to let them scatter. Manhattan likes to take advantage of the parties' togetherness to go to the next and final step right away. From a defense lawyer's standpoint this is a due process horror show, because we like to think that there is some value in being able adequately to prepare our cases for trial.
Given the virtual absence of meaningful discovery in criminal cases in New York, it often works out that the first time we really learn much about the Government's case against our clients is at the pretrial hearings. We haven't had a chance to see or speak to the witnesses or read any of their reports in most cases prior to the pretrial hearings, because contrary to what people believe, we are entitled to none of it prior to pretrial hearings, and even then we are not entitled to all of it.
Therefore, commencing trial right on the heels of the pretrial hearings feels like we are being rushed along when due process might well suggest that we be given more time to digest what we have just learned about the Government's case. I mean in this country our rules in civil cases where the stakes are simply piles of money are filled with rules requiring that every imaginable discovery device be exhausted prior to trial so that by the time trial occurs, both sides know just about everything about the case. In New York, in criminal cases, however, we are delivered police reports when trial begins, and often times the first time we ever speak to a complaining witness is on cross-examination during trial. New York engages in a practice cynically referred to by defense lawyers as "discovery by trial". It is gallows humor really, laughing at the absurdity of it, in comparison with the broad, wide ranging liberal discovery rules in cases where merely money (as opposed to freedom) is at stake.
The push to force cases to appear to be ready for trial in Manhattan, however, creates the illusion of speed without much in terms of the way of creating actual speed. To hear the calendar call in a Manhattan Criminal Court misdemeanor courtroom, it seems as if every case is "on for trial", and yet almost nothing ever seems to get sent out for actual trial.
Settlement Along the Way is Almost Always Possible
Along the way on the general path toward trial, it is of course possible to conclude a case with a settlement. Especially with misdemeanor cases, settlement negotiations can be considered usually to be an ever present thing, if settlement is what you are looking for. Felony cases can be more complicated and there are situations in felony cases where you are really and truly at a do or die moment in terms of settlement opportunities. Except in the rarest of cases, however, there is always some kind of possible room for discussion of settlement of a misdemeanor case in New York City Criminal Court.
So How Long Will it Take? the answer is an unsurprising lawyer answer.
And so when people ask me how long will it take to conclude their case in New York City Criminal Court, I have to use the unsatisfying lawyer answer, "It depends." Part of the answer will depend on what the client is looking for in the case. If the client wants a trial above all else and is not interested in any settlement, then unless some legal problem with the case results in an early dismissal or unless we develop mathematical proof of innocence like an exonerating video, the answer will be about a year or so.
If, however, the client is willing to consider a settlement, then the answer will depend on my assessment of the type of settlement that the client thinks is acceptable compared with my assessment of how likely the Government is going to be willing to make such an offer. Sometimes, my answer could be "right away" and other times it could be that such a result will not likely be the first offer out of the box by the Government and that we will have to work on it over time to convince the prosecutor over time. Sometimes, I may be required to give the bad news that the offer the client would like on the case is so unlikely ever to be made by the prosecutor that we might as well begin preparing for trial now because the prosecutor will likely take the position that he or she would rather lose the case at trial than make such an offer.
For example, a client accused of three armed robbery cases in Queens who advises me that he would like to settle his cases with a disorderly conduct (non-criminal) resolution and time served would be in the category of needing to start prepping for trial. Absent circumstances almost too outlandish to imagine, most prosecutors would take the position that they would rather lose all three robberies at trial than to offer a settlement to a disorderly conduct.
Practical Considerations Sometimes Lead to Settlements that Clients Would in a Perfect World prefer to Avoid
Sometimes, for the sake of ending the case, people will affirmatively choose to end cases in not as favorable ways as they might have ended if they just stuck it out some more. For example, I have represented people, especially in the Domestic Violence context, where with an uncooperative complaining witness, the likelihood of the Government ultimately being able to bring the matter to a trial and get a conviction is pretty small. And yet, some people, even when I tell them that if you are willing to wait this out for a few months, we might well be able to get the case totally dismissed, they choose to settle the matter. They choose this because the Government will leverage the potential lengthy courtroom struggle by offering a non-criminal resolution and a limited order of protection to end it. This allows the defendant and the complaining witness to be together right away instead of being kept apart by the Court ordered Order of Protection for three months or more until the criminal case concludes with a possible outright dismissal.
As the attorney, I of course advise the client that a dismissal in this circumstance could be a real possibility, but we would just need to come back to court a few times over the next few months.
Easy for me to say. Coming to Court is my job. I don't have to take time off to go to Court. I am on the job when I am in Court. But coming to Court is a major hassle for most people, especially for people who work. In addition, where two people are being kept apart by a Court ordered order of protection, simply saying "one of you just find another place to stay for three months and have nothing do with each other" is often easier said than done. Thus the prosecutors can often leverage the amount of time that they can keep a case alive, along with keeping orders of protection in place to encourage settlements that they might never get otherwise.
By Don A. Murray, Esq.
Don Murray is a founding partner in the New York City criminal defense law firm Shalley and Murray. He has been helping people accused of crimes in New York City Criminal Courts for more than 27 years. Call 718-268-2171 to set up your free consultation about your criminal case.