Project Reset and Similar Programs - Lawyerless Transactions in the Criminal Justice System - An Appalling Due Process Disaster
Project Reset is a criminal court diversion program in New York City that seeks to help people who have no prior arrests who are arrested for various “low level” misdemeanor offenses. Eligible participants are diverted from the Court system and instead offered the opportunity to attend a two hour workshop with the hope that after the workshop they will be less likely to offend again. People who comply with the terms of the diversion program never have to go to Court and their cases are declined to be prosecuted, so that they do not have a criminal record at the conclusion of the matter. According to a fact sheet prepared by the Office of Court Innovation, the original arrest is “sealed”. This eliminates the possibility of a criminal record or a warrant being issued, according to the Office of Court Innovation. The arrested person need not ever speak to or have to hire a lawyer. This can be an entirely lawyerless transaction. Great!
Ummm. Wait a minute. Let’s walk that back.
This is a due process disaster, despite its good intentions, and despite the many people who benefit just as they claim. To understand this simply requires you understand it for what it really is - a lawyerless transaction for a person who is arrested for a crime and now forced to contend in the criminal justice system.
The moment a person is arrested is a serious and important event in a person’s life. At that moment, when the decision to arrest is made, the person arrested is now an adversary of the Government. His freedom is immediately, if temporarily removed. If he wants to go home, he can’t. He is physically restrained by armed, paramilitary operatives of the Government. If he flees he will be pursued and taken into custody against his will. He will be removed to a jailhouse, where he will be put into a cage. For the time being, he is utterly at the mercy of the Government and its vast, comparatively unlimited resources.
And yet, in the United States of America, at the moment of arrest for a crime (and even leading up to it), a host of great and powerful Constitutional protections kick in to do as much as any set of abstract concepts can do to “protect” the arrested person.
These great principles, mostly trace their origins to the principles of our Bill of Rights and how those rights have been interpreted over the course of more than 200 years. When I consider the blood, sweat, and tears that have gone into the creation, the implementation, and the development of these great principles, I am filled with awe. As a criminal defense lawyer, I consider it an amazing privilege that I have been granted the authority to make these great principles the tools of my trade.
These protections, designed to give even the lowliest among us the power to contend against the mighty Government and its army of paramilitary operatives, lawyers, experts, and more, spring into existence to form a cocoon around the arrested person. The presumption of innocence, the burden of proof on the government of beyond a reasonable doubt, due process, and more shield the arrested person against the power of the government.
But at first, of course, the person arrested may not be aware of these protections. They are but ethereal concepts, invisible and weightless, there to be used effectively only by those who can see them and understand how they work. The general state of understanding of criminal law, I can say after explaining it to people for 27 years as a criminal defense lawyer, is incomplete in the best of circumstances, and downright wrong much of the time.
So where does a person who is arrested come to understand his position in the world in this matter where the Government has vividly taken his freedom and accused him of a crime? The one and only person in the world who, going forward, he can be certain has his or her interests in mind is a criminal defense lawyer. And so one of the first and most important rights of a person being prosecuted for a crime, is the right to an attorney. Rich or poor, powerful or powerless, every single person arrested and prosecuted for a crime is entitled to have the advice of a lawyer. And doesn’t that make sense? If the complex law associated with criminal prosecutions is unknown to the accused, then what good are the protections in the first place, unless there is someone there to advise the person?
In recognition of this problem, our United States Supreme Court decided the great case of Gideon v. Wainwright. In Gideon, the Supreme Court set down the rule that led ultimately to the requirement that every single person charged with a crime who could not afford to hire a lawyer, must be provided a lawyer. The Supreme Court well understood the reality that the criminal justice system, where freedom itself was at stake, ought NOT be a lawyerless transaction. The criminal justice system was not some sort of voluntary process or a process where something as trivial as money were at stake. The criminal justice system was about freedom itself.
And yet, eligibility for Project Reset, begins at the moment of arrest, at the very moment when this great host of Constitutional protections springs into being. And instead of respecting the solemnity of that moment of arrest, and treating it as seriously as we have historically treated arrest for crimes, the person arrested is offered “diversion” through Project Reset, with no mention of one of those pesky lawyers.
Most of the cases involved in Project Reset are cases where people are given Desk Appearance Tickets (DAT) after arrest. A DAT is essentially a written appointment slip to see the Judge for first appearance in Criminal Court at some future date. The DAT saves people from being held in custody for about 24 hours, and results in custody for about 4 hours instead. NYPD officers routinely advise people they arrest that they are not being arrested, they are “just getting a DAT”. This is false, and one example of bad legal advice routinely provided by the NYPD during arrest processing. People who get DATs are most certainly arrested. The DAT form clearly has an “arrest number” printed on it. People are fingerprinted. People are photographed. They are given a slip to report to Criminal Court for first appearance. This is what happens to people who are arrested.
I have had several people who have been in contact with me after getting DATs send me copies of the letter they get offering this Project Reset diversionary program. The most recent version of such a letter that I have seen is from September, 2018, from The Osborne Association. Nowhere in this letter does it suggest even the possibility that it might be a good idea to talk to a lawyer, because you have been arrested, charged with a crime, and ordered for the moment to appear in Criminal Court. Nowhere in the letter does it suggest there might be any reason not to participate.
An interesting issue here is that this letter is sent by the Program that expressly suggests it is acting as an agent of the Prosecution and the Police (The Government). It is sent by this Government agent to the defendant in a criminal case without regard to whether or not the person has obtained counsel. Generally, where a person has counsel in a criminal matter, the Government is prohibited from communicating with that person, especially with regard to the alleged crime. Here, of course, the Government can lay claim to ignorance on the issue, since the letter is sent after arrest, but before the case is scheduled to be heard for the first appearance in Court.
Now in the instances where my clients, or potential clients, received these letters, I suppose one might say that well, there I was, the lawyer, able to provide advice and insight as to this letter. And one would be right.
But I am not for the moment concerned with these anecdotal events. Most people who receive DATs either don’t bother seeking counsel (because the NYPD routinely tells them not to for God knows what reason, or because they can’t afford counsel, or they are lazy, or underestimate the process). So I would estimate that a large percentage of the people who get DATs get these letters have had zero discussion with a lawyer.
Well, right off the bat, you have people arrested for crimes, with dates set for first appearance in Criminal Court, who are receiving communications from the Government inviting settlement in a criminal matter, on terms not negotiated by the person’s lawyer.
You are arrested for a crime. You are being sent to Criminal Court. And the Government wants to negotiate with you. The Government wants to decline to prosecute your case further. The Government has a diversionary program for you. The Government will explain everything to you. And you won’t ever have to go to Court.
Here it is - the lawyerless transaction in criminal court (the Government’s dream come true). Can some lawyer keep you from having to go to Criminal Court? The DA’s Office sure can. That criminal lawyer is a big waste of money. Let the friendly Government help you out here and make it all better.
The Ultimate Bait - You Don’t Need to Come to Court
Offering up the possibility of never having to go to Court is probably the most tempting aspect of the deal of all. If you told people they would get a criminal record but they wouldn’t have to go to Court, you would probably get more than a few takers. My experience is that clients hate having to go to Criminal Court, especially people who have no prior contact with the criminal justice system. They get stressed and frightened no matter how much you tell them that nothing in particular is going to happen and that everything is going to be fine. Therefore, telling people in these letters that they won’t have to go to Court is like telling a heroin addict that if they do a two hour workshop they can have a month’s worth of heroin. You aren’t going to get a lot of people turning that down, and people aren’t likely to respond to the offer of “you won’t have to go to Court, ever” with, “Let me find and hire an experienced criminal defense lawyer instead.”
So to the extent that the notion is that people are “free” to consult with lawyers about these letters offering to settle their criminal court matter, my prediction is that few of these calls will ever be made because all most people will think about is the part about not having to go to court.
Talking about a Pending Criminal Case
One of the most basic notions of criminal law in the United States of America is the Fifth Amendment right to remain silent. The Government may not compel a person to make statements that would tend to incriminate him in a criminal proceeding. Therefore, one of the most basic ideas of criminal defense is that once you become involved in a criminal case, you cut off the communication between the Government (your client’s adversary) and your client, except in tightly controlled situations.
In fact, the whole issue of the Government obtaining statements from people it has arrested is a massively litigated issue encompassing one of the most famous and famously misunderstood cases of all time: Miranda v. Arizona.
The Supreme Court recognized the coercive nature of the interrogation process, and so famously developed the Miranda rules, applicable when a person is in custody (often post arrest) and being interrogated. The Miranda rules, since they were developed, have been hotly litigated and developed in a massive body of cases, spinning off various state constitutional versions - all because of various due process and right to counsel issues that arise when people who are arrested are confronted by the coercive authority of paramilitary Government agents in situations where they are not free to leave. Over the course of the years since Miranda, law enforcement has developed strategies to engage people who are arrested into making what is often the terrible mistake (for them) of giving up their right to remain silent and talking about their cases. In many situations, the police don’t really have to do much beyond reminding people of various misconceptions about how the criminal justice system works. For example, “The judge will go easier on you if you tell us what happened now.” Perfectly ok, standard stuff. It is utter nonsense. (Translation: “Confess a crime to police and the judge will go easy on you. Do not confess a crime to the police and it will be bad for you.” This makes no actual sense, and of course is a lie, but people believe it and act upon every day.) In any event, an entire vast body of law exists that governs the circumstances when and how the Government may obtain statements from people who have been arrested. And the generally accepted principle among criminal defense lawyers is that little good comes from uncounseled statements to the police regarding a crime for which a person has been arrested.
And in fact, in the case of Project Reset, since people are coming down voluntarily to participate in a program, I don’t really even see why Miranda warnings would be required. Miranda warnings would likely not be required because although incriminating responses would be expected to be obtained from the defendants, they are not in custody. They are showing up voluntarily to participate in the diversionary program.
So how does this matter to Project Reset? Look at what the letter invites. You have to go down to some agency that is employed by the police and prosecutors and participate in a workshop for a diversionary program. Presumably, you will be asked about what happened and the circumstances of the arrest. If you tell the people at Project Reset that you are innocent of any crime, then I presume that will make you ineligible for the program, and you will be diverted back to Criminal Court, and you will have to actually go to Court.
Is this coercive? “Just tell us you did it and you can get your case declined to be prosecuted”.
What sort of privacy can you expect as to the statements that you make regarding the crime for which you were arrested? It certainly doesn’t say in the letter. Do they promise to keep it a secret from the NYPD or the Prosecutor? Even if they do promise to keep what you say a secret, do you know what that promise is worth? Exactly nothing. What recourse do you have if they reveal what you said to them to the police or the prosecutor’s office if for some reason they find your participation less than satisfactory and return you to Criminal Court? Let’s pretend you can sue them in civil court. Will that mean that your statements to them will be inadmissible in a criminal court? I wouldn’t bet on it.
What if in the course of your discussion about the crime you admit to other crimes? For example, suppose you were arrested for criminal possession of a controlled substance in the seventh degree, a class A misdemeanor. This is an offense for which Project Reset is used. If in the course of your discussions you mention that you had a couple of pills and you gave one to your codefendant and kept one for yourself, you just confessed to a B felony criminal sale of controlled substance to an agent of the police and prosecution. But no worries. They promised to keep it secret. (Feel safe?)
Or what if, in the course of your discussion about the crime you mention that you usually do drugs at home and not outside where you got caught. Maybe you told the nice people at the program that you are caring for two small children at home. So, are they going to pick up the phone and make an anonymous report to ACS that you are neglecting your children by doing drugs at home? And then your children are removed from your care.
Or what if you are not a citizen of the United States? The program publicly identifies itself in its own fact sheet as a “diversionary program” and do you know how Immigration perceives “diversionary programs”? In fact, a non-citizen runs several risks by participating in Project Reset worthy of consultation with an immigration lawyer. Regardless of conviction, Immigration could perceive the diversionary program as a conviction for its purposes, which could jeopardize your citizenship application, admissibility to the United States, or could jeopardize your ability to remain in the country legally. If Immigration decides you are a drug addict because you participated in a diversionary program on a possession of drugs charge, you may also face difficulties. Also, because of the way that this diversionary program is described, including that the “arrest is sealed” non-US citizens may be tempted to report to Immigration the false information that they have never been arrested. “Sealing” the arrest, however, doesn’t make it true that people haven’t been arrested. It simply means that finding evidence of the arrest is hard. It isn’t hard, however, for Immigration. People who are incorrectly under the impression that they are authorized to lie and tell Immigration that they have never been arrested may well be in for a rude awakening when they are denied citizenship, or are prosecuted for a crime for lying on an official Federal form.
Another issue that will likely be missed in this lawyerless transaction is the issue of significant issues regarding the admissibility of critical evidence in the case. People arrested for a crime are occasionally convinced that because they believe they are guilty of the offense that they have no alternative but to try to settle the case. This is not always the case. If the police obtained the critical evidence against a person illegally, and if that argument can be successfully made to the Court, this critical evidence can be excluded from the case. Sometimes, such exclusions can result in the Government’s case being crippled beyond the possibility for repair and the case must be dismissed.
The law regarding the legality of police conduct in the obtaining of evidence is extraordinarily complex and fact dependent. Therefore, it is something that non-lawyers are generally not going to be in a position to know or even know how to research appropriately. Part of the job of a lawyer is to be aware of issues like this and to bring them to the attention of the client. While many clients will forgo battles over evidence in Court in favor of a convenient settlement, not all do. Some feel strongly about the Fourth Amendment principles that come into focus in these cases and are motivated to pursue them. But they have to be educated about the issues and the likelihood of success before an intelligent decision can be made to pursue the issues or forgo them. The wonderful, kind, gentle, lawyerless transaction that is Project Reset, doesn’t provide this insight, to my knowledge.
People who grab the low hanging fruit in this offer are not going to be aware of any of these subtle issues because they aren’t going to bother bringing a pesky, expensive lawyer into the picture. And the program will likely work as expected for most people, and so it will seem great.
It will work as expected, and be great, except for the time when it doesn’t work as expected for someone, it isn’t therefore so great. Everyone will be nice, and the program won’t share information with the police or prosecutors, or ACS, or immigration…until everyone isn’t nice and information does get shared, or subpoenaed.
And that’s when my phone will ring. On the other end will be the person who read that letter, saw only the business about not having to go to Court, and didn’t bother calling me then. Only now something dreadful will have happened, and something he did on the promise of the great and wonderful and friendly happy Government will be looming over his head — and there may not be much I can do about it.
Want to Help People so Much? Why Not Decline to ARREST?
It seems as if the Government is doing this wonderful thing because they are nicely offering to decline to prosecute low level offense instead of “giving people criminal records”. Yet, if the Government is so interested in helping people, then why do they insist that the people be arrested in the first place?
An arrest itself kicks in an ever widening variety of collateral consequences that a “diversionary program” can actually make worse. Arrested for petit larceny? Do this “diversionary program” through Project Reset and you won’t have a criminal record. Great. But because you just did a diversionary program with the underlying charge being petit larceny, you are now presumptively barred from working in an FDIC regulated institution, like a bank. FINRA background checks will treat that diversionary program as a conviction for petit larceny. Good luck with your career after that.
If the Government really wanted to help people, it shouldn’t trigger the criminal justice system by arresting them. Have the police recommend they take the counseling session.
When Project Reset Goes Wrong, Who Will be Responsible?
And who will be responsible when people who didn’t get legal advice they really needed, participated in this Project Reset and there is some unpleasant consequence down the road? Will Project Reset take responsibility? Will NYPD take responsibility? Will the DA’s Office take responsibility?
I think not.
Then, when someone complains to them, these organizations will get their backs up and say, “Not our fault. Nothing prevented you from hiring a lawyer. We didn’t make you participate in Project Reset. We just made it available to you.”
Why not Make All Criminal Court a Lawyerless Transaction?
Why not just send all of our criminal defense clients down to talk with the police and prosecutors or their agents with a view toward negotiating a settlement of their cases? I mean, what is the difference? Let the DA’s Office talk to my robbery client and let him negotiate a good deal. What is the functional difference between negotiating a deal on a low level case and a high level case? Maybe in this experimental program we can learn just how useless criminal defense lawyers are so that we can eliminate them completely.
Project Reset is not Saving People from Prison or Criminal Records
The way Project Reset has been pitched, it is as if Project Reset is saving its participants from the big bad criminal justice system where terrible things would happen to them like getting criminal convictions or going to jail.
Given the cases that Project Reset has been targeting, this is a fundamentally preposterous and pernicious fantasy. A first arrest petit larceny defendant in New York City in Criminal Court is as likely to end up with a criminal conviction as he is to win the lottery while being eaten by a shark while being struck by lightening. Most of these cases, in fact, will end up being dismissed in criminal court through a process called Adjournment in Contemplation of Dismissal (ACD). The ACD procedure involves NO ADMISSION OF GUILT (unlike what I imagine goes on in the Project Reset workshop) and so offers little functional difference between the decline prosecution offered through Project Reset. The difference is that the ACD’d case lasts in legal limbo for six months before it is dismissed and sealed. Judges, however, in individual instances have the power to reduce the time to dismissal at their discretion. Thus, for the little functional difference in outcome, a person accused of a crime gets the benefit of a lawyer and real legal advice. What a nightmare.
What’s Really Going on Here? Follow the Money
The real difference here is that a diversionary program like Project Reset significantly reduces the caseload in Court. Fewer DATs means less money spent on processing them, less court time spent dealing with them. Good for the Court, and good for the Prosecutor. But is that good for the people accused of crimes? In some cases it might be, but how to know which ones?
Government Wants to have its Cake and Eat it Too
The entire philosophy behind Project Reset smacks of a Government that wants to have its cake and eat it too (while nobody realizes). On one hand, the Government wants to play the role of the good guy helping people on trivial low level offenses. On the other hand, the Government doesn’t really want to the treat the offenses as trivial low level offenses. People still get arrested, photographed, fingerprinted, and processed. There will be consequences to this process regardless that they claim “to seal” it, and there are circumstances where people might suffer severe consequences, all without the advice of counsel, and virtually zero encouragement to obtain counsel.
Does Legal Advice Really Matter? Why NOT a Lawyerless Transaction in the Criminal Justice System?
I would like to think that going to law school and having the experience of being a lawyer for the last 27 years or so have made my insight into the situations of people who are arrested in NYC valuable. Not every case is going to be a complex homicide case. Some cases are less serious than others, in the same way that not every person who goes to the doctor has ebola or a rare form of cancer. The doctor who sees a patient who has vague symptoms is not useless if she determines that the patient has the common cold. A patient pays the doctor for advice and the confidence in that advice that her experience provides.
I think that part of the reason that the system seems so ready to make first arrest DATs lawyerless transactions is that the notion of “needing legal advice” seems silly in a realm where so many cases are simple and seemingly easily resolved, like patients who present the symptoms of a common cold to a doctor. And truth is you probably don’t need to be a lawyer to take an ACD on a first arrest petit larceny, any more than you need to be a doctor to tell someone to drink plenty of fluids and take Tylenol.
But the tricky part is being able to know whether there is some greater problem involved that is invisible to someone who isn’t a professional with experience and education in the subject. Maybe the doctor will see 1000 people and tell them to go home and take Tylenol because they have the common cold, but the 1001st person will exhibit some symptom that will lead the doctor to believe it is something more serious, even possibly life threatening. Or maybe the doctor will know that this particular patient can’t or shouldn’t take Tylenol because of some other condition that the patient has.
Simply concluding that people who “seem to have the common cold” should not even consider seeing a doctor seems wrong. Are symptoms of the common cold always a “doctorless problem”? I don’t think very many people would say yes to that, or that the doctor who treats a patient complaining of common cold like symptoms is doing something useless.
And this is I think part of what fuels Project Reset, or if not directly fueling it, at least why nobody considers the implications. What’s the problem? What can go wrong? We just want to dismiss the case.
To my knowledge, none of the criminal defense organizations that exist in New York City have complained about this. In fact, The Legal Aid Society and other public defense organizations have even lent their support for Project Reset. This is utterly astounding to me. The web page that provides information about Project Reset, does not recommend that people seek legal advice. There is only a button that says “If you need legal advice.” (Here is link to this page: http://cjii.org/project-reset/)
Can you imagine? “If” you need legal advice. The Legal Aid Society is supporting the notion that a person who has been arrested for a crime and who has been contacted by the Government to settle that case might not need legal advice. “If” you need legal advice after being arrested and charged with a crime, and you can’t afford to hire a lawyer, they will talk to you...but only if you need legal advice. Nowhere is the notion that getting legal advice is important for every single person arrested and charged with a crime. Nowhere is the recommendation made that because a person has been arrested and charged with a crime, consultation with a lawyer is imperative. The clear suggestion here is that you probably won’t need to talk to a lawyer even though you have been arrested, charged with a crime, and contacted by the Government offering to settle your case. The clear attitude here is to make sure that the process is a lawyerless transaction. The fact that The Legal Aid Society has participated in that notion, and at best left the issue of needing legal advice ambiguous, is utterly beyond comprehension.
The Legal Aid Society has waged extensive legal battles against the NYC Criminal Justice system over some esoteric issues, yet it is up for debate whether a person arrested and charged with a crime needs any legal advice at all? There is nothing wrong with a lawyerless transaction in the criminal justice system, according to what is now the policy of The Legal Aid Society. I am truly disappointed in what I believe is a fundamentally great organization run by dedicated, highly skilled and trained lawyers. I am proud to have spent time working for The Legal Aid Society myself, but in this instance, however, I believe this great organization has missed the larger issue.
Supporting the lawyerless transaction of Project Reset is to my mind a brilliant illustration of the temptation to surrender to the power of the underlying nice notion and good intentions. The notion is that it is some sort of kind, gentle and happy example of the big bad criminal court offering to help people instead of doing something bad to them. Isn’t it great? Decline prosecutions? How can we complain about that? That’s fantastic.
But there is payload wrapped inside this idea. It is the payload of the lawyerless transaction in the Criminal Justice System. Pay no attention to the uncounseled statements to Government agents about an open arrest. Look over here at the nice dismissals we are giving away to the lucky ones who participate and who ultimately qualify. You don’t necessarily need a lawyer. You don’t necessarily need legal advice…says the Government to the person it has arrested.
In the end, how is this really different from the Detective, sitting across from person (without a lawyer) at the Precinct, telling the suspect, “Just tell me what really happened and I’ll let you go.” I can’t really see much of a difference here, except perhaps that it seems like it might really be true most of the time with the Project Reset.
But the principles that guide our criminal justice system have been built and developed based on the fundamental premise that the Government, sad to say, cannot be trusted like this. This is why we make it so hard on the Government to prosecute us. This is why there really shouldn’t be any such thing as the lawyerless transaction in the criminal justice system.
Finally, even if the truth is that in any given case Project Reset would be just fine and you don’t need (much) legal advice, you don’t know you don’t need (much) legal advice until you have spoken with a lawyer, so that outlier problems can be ruled out. You have to be a criminal defense lawyer to know that you don’t need much criminal defense advice, in the same way that you need to be a Doctor to know that the patient’s symptoms are evidence of a common cold and not something more serious and rare.
File a name change yourself. Sue your neighbor in small claims court for the cost to fix the window his kid broke playing baseball, if you must. Fight your own traffic ticket if you really want to. You won’t go to jail. You won’t get a criminal record. You won’t ruin your career. You won’t get deported.
But, the criminal justice system is not the place for lawyerless transactions.
By: Don Murray, Esq.
Don Murray is a partner in the firm and has been a New York City criminal defense lawyer for more than 27 years. He has been involved in countless non-lawyerless transactions in New York City Criminal Court and can help you too. Call or text 718-268-2171 now to schedule your consultation.