(NB: This article was based on interviews with attorneys, court employees, police officers, defendants, and personal observations by this reporter in actual courtrooms.)
You probably watch “Law & Order.” Most people do. There you get to see the justice system chugging along like a sausage factory. The police think someone has committed a crime. A detective digs through the facts, interviews witnesses, and examines all of the evidence before going to a prosecutor to seek an indictment. The accused is brought before a judge in person to be charged in a wood-paneled courtroom, a defense attorney protests their innocence, the prosecutor must show what they have to indict, and if the judge thinks it’s more likely than not that a crime has been committed the defendant is charged, and a reasonable bail is usually set. The bail is paid, and the defendant is able to return to their life and assist in their defense. Their attorney has the resources to investigate the alleged crime, find exculpatory evidence, and go to trial. A trial eventually happens, all of the facts are put before a judge and jury, and if they are innocent, they will walk away full of puppies and rainbows – because the system worked. You turn off the tv basking in the glow of the American Justice System. All is right – or white – with the world, and you’ll sleep soundly knowing that the rule of law works for everyone.
That is a terrible lie. You’ve been suckered. That’s not what happens. It’s a fantasy. Let’s use the example of my hometown – Philadelphia.
So, the police hear that you’ve committed a crime. Maybe someone called in a tip. Maybe your neighbor was mad at you and wanted to get even. Maybe your girlfriend is mad at you. Maybe the police were simply bored and needed to look good to their commanding officer. They don’t investigate it. Based solely on a statement against you they go to the Charging Unit of the District Attorney’s Office and ask for a arrest warrant. They usually always get one. It’s a rubber stamp.
You’re arrested. You get put into a van and taken to a police station. You are scared. Nobody tells you what’s happening. Your things are taken from you. You’re photographed and fingerprints are taken. You may get an invasive body search. You’re led to a cell. If you’re lucky you get a few cheese sandwiches (one slice of processed cheese and two slices of bread) and water. You’ll have to ask (beg) for toilet paper. The cell will be filthy, the sink and toilet a horror show, and you’ll sleep on a hard metal bench with no pillow or blanket. There are cockroaches. There are rats. If it’s night time, the lights will remain on and it will be impossible to sleep. One person told me of police who enjoyed keeping a radio blasting gospel music all night at the cells because “Y’all need Jesus in your life.” Jesus is nowhere to be found. If you called The Hague you’d have a good case for a crimes against humanity charge.
Exhausted, you will suddenly be taken to a room with a monitor. You’ll be arraigned via closed-circuit television. No wood-paneled courtroom. No attorney by your side. In fact, you haven’t spoken to an attorney yet. You can’t utter a word during this arraignment. You begin to pray. You might cry. If you’re lucky you’ll get bail.
I hope you thought to bring change. If you did, you get one phone call to get someone to pay your bail. Do you remember their phone number? It may be late, and no one will answer. Too bad. It sucks to be you. If you get someone who can pay your bail, they have to travel to the bail payment window in a far away building to do so. Then you wait for the system to grind along before you’re released. The police won’t call anyone for you. Your partner is probably freaking out and has no idea where you are.
Huzzah! You got someone to pay your bail and you’re released! You get your things back. Never mind the money that’s missing from your wallet and the fancy watch that’s not on your property sheet, you’re free to go.
How will you get home? You’re in a strange neighborhood late at night. How will you explain it to your boss if your missed work? How will you afford an attorney? You probably can’t, so you’re assigned a public defender.
You get home. You are shaking. “How did this happen to me? I didn’t do it!” you’re asking yourself. You look at the paperwork and see that you’re expected to go to the Public Defender’s Office to discuss your case. You and your wife argue. Your children cry. The whole neighborhood knows by now that you’ve been arrested. They stare.
You lose another day from work to go speak to the public defender (do you still have a job?). You wait for your name to be called. You have about ten minutes to tell the harried public defender your tale of woe. They ask questions as if they assume you’re guilty. You can’t believe this is happening to you.
They suggest a deal right off the bat. They don’t have the time or resources to investigate every crime, and just want to clear their desk for more serious cases. They’ll urge in very strong terms to take a deal. In fact, 63% of cases in one year in Philadelphia ended in defendants taking plea deals. If every case went to trial, the system would collapse, and the system knows it. Forget your right to a trial and to confront witnesses against you. Take the deal, they urge.
But you didn’t do it! The public defender will not-so-patiently explain that innocence is not a defense. The deck is stacked against you. Take the deal.
You refuse, because you don’t want to be a convicted criminal. You’ll never find a good job or place to live with a criminal record.
Exasperated, the public defender prepares for a trial. During your first hearing weeks later (more lost work), the District Attorney calls their witness against you. They aren’t there. The case is continued for another month or so.
During the second hearing, the witness still doesn’t appear. It’s continued again. If you some much as look at anyone in the courtroom you are yelled at. You’ve been arrested – you must have done something.
Finally, at the third hearing, the witness shows up. But the ADA needs to collect more evidence. Another date is set. More missed work. More stress. More relationships under enormous pressure. Have you been evicted yet? At this point they’ve offered a deal more than once – they may even have lowered the charges to sweeten the pot. Your public defender begins to pressure you to take it. You still refuse – but you’re tempted because you just want it to end. All you have to do is sign this paper and it will all be over. You’ll probably argue that you didn’t do it.
It. Doesn’t. Matter. Your public defender gets angry but tells the ADA and the court you want a trial.
Fast forward a few months. The date is finally here, you’re going to trial! For the sake of brevity, let’s assume that you’re going with a bench trial – where a judge and not a jury decides your fate – because your public defender knows that this particular judge is fair. Many aren’t. Many have no criminal trial experience before running for judge (yes, ours are elected). You’re in luck because this judge was a criminal defense attorney and actually knows the law. Fingers crossed!
But wait. Your subpoena said you had to be there at 9:00 am. Where is everyone? If you were late you’d be in contempt of court, your bail could be revoked, and you’d in a lot of trouble. So you, your lawyer, the ADA, the police witnesses, the state’s witnesses, and a gaggle of court employees sit and wait. And wait. And wait.
Finally at 11:00 am the judge finally wanders in. They chat up the clerks. Two hours you’ve waited. An no one dares say a word of complaint to the judge. I asked dozens of attorneys to talk about this on the record. They were all afraid to – for fear of never being able to try a case and win again. But I did find one criminal defense attorney, Zac Shaffer, to explain the dire impact on these delays on defendants and the police:
“Consistent start times help defendants, witnesses and police officers. Defendants and witnesses may have a job to run back to. Many of these people are living paycheck to paycheck. An entire day off of work might mean a missed rent check or a utility turned off. Shaffer continued, “I have personally seen alibi witnesses with a 9:00AM subpoena leave court before testifying because they cannot miss a whole day of work and their case wasn’t even statused, let alone started, until 11:00AM when the judge takes the bench. Oftentimes last out officers are in court after finishing a shift that started at midnight just to find out they are not needed for court at 10:30AM or 11:00AM. An earlier start time lets them leave to rest up for the next shift. Their job requires split second decision making where being rested can mean the difference between life and death.”
After waiting for hours, you have your trial. If you’re lucky, your public defender has prepped for the case. They may have spent an entire hour on it. Did I mention that because of the rotation system that this is your third/fourth/fifth public defender, and that they probably forgot what you even look like? Before the trial they’ll pressure you again to take the damned deal. You argue. This is the person who’s supposed to zealously defend you and they’re mad at you for making their life harder.
The trial goes on. It’s obvious that the police have been coached. I’ve seen this with my own eyes, as ADA’s hand the case file to them before the trial to “refresh their recollection.” They even have a tiny special room for this purpose. Their testimony sounds like a script – because it is. Shocker: the police are trained to lie. They do it every day.
After everyone’s testified and been cross-examined, and evidence presented, the state rests. It’s in the hands of the judge. You start praying.
You’re stunned. You heard “Not Guilty on All Counts.” You’re free to go. You shake hands with your lawyer and wander out into the sunlight. You might cry in the hallway on the way there.
No apology. No help getting home. No one will even acknowledge you. Your reputation is destroyed and there’s no one you can sue. No place to get your good name back.
You go home. A month later your bail check finally arrives. For one last insult, the court keeps 1/3 of your bail monies for “processing.”
You file the papers to expunge your record. If you’re lucky, the DA’s Office won’t fight it. This process takes months. Meanwhile, your record is still there for every employer to see – and good luck getting a job.
Your life destroyed and you have nowhere to turn for help.
Ok. You’re probably white and wondering how this applies to you. You think anyone who’s been arrested probably did something, and deserves to go to jail. You’ve never committed a crime. Or so you say.
Have you ever added up your checking account wrong and bounced a check? Have you ever forgotten to pay a parking ticket? Have you ever argued with your wife? Have you left home without your wallet and don’t have identification when you blow through a red light? Has someone ever stolen your identity? Can you prove you were home at 9:24 pm three months ago when your neighbor claims you stole their snowblower after the argument you just had over their dog?
Then congratulations! You’re going to jail!
Start carrying quarters. You’re going to need them.
(Part Two of this series, publishes on Feb 27th at 4pm, will be about the office that’s trying to put you away: the prosecutor. You won’t believe it until you read it.)