Chapter 4 - Judges
Defenders share their perspectives on judges in New York City.
What is your perception of the criminal law judges (Criminal and Supreme Court) in your borough?
The most common answer Defenders give is that the judges in their borough are varied. One Defender states: “It really runs the gamut depending on the judge. Some of them are fair. Some of them have hang-ups and pet peeves. Some of them are just nasty to everybody except the client. Some are nasty to clients. So it's a pretty broad question.” Another Defender shares similar sentiments: “That's a broad question. What is my opinion of them? I mean, some are fair and open-minded and some aren't; but I think that's pretty much probably everywhere.” Another Defender concurs: “It's a huge range. There are judges who do a great job…. Then you have judges who get seduced by the power of it.” Yet another Defender answers as follows: “[Criminal Court judges are] a mixed bag. I’ll just leave it at that. The Supreme Court judges are a little different. Some are unbelievably bad….”
Many Defenders observe that judges are greatly, if not primarily, concerned with the political nature of their jobs. As one Defender succinctly notes: “Most judges care more about politics than they do about the people; they’re more concerned with politics and political consequences for decisions that they might have to make.” Another Defender concurs: “I feel like it's very political and a lot of them … are afraid to follow the law; and then if they do, they get labeled as “defense friendly” when really, they're just being fair. I feel like a lot of the judges … are just afraid to do what is right or fair….” One Defender offers this observation:
In New York, judges are chosen by the [Democratic] Party, and the party would go well out of its way to maintain an incredibly tight hold and grip on judges. While we were there, there were days that party officials would come around and review their numbers with judges and let them know if their sentencing looked consistent with what they wanted. (Author reacts) Like, it’s crazy, right? And it was an open secret: they would come around, saying to judges, “Here's what your numbers look like.”
So the party was maintaining a lot of control over judges, particularly before they had the elected [New York Supreme Court] seat…. This is a disgusting political reality that is not about left versus right. So the judges felt very beholden to the party. Once in a while, we would get an Independent up there, and of course he wouldn't get reelected. Ultimately, we ended up in this space where the party was more concerned about maintaining its power than anything else, and also was very complicit with police behavior and police misconduct….
Politically, Defenders agree that it is safer for judges to act favorably towards prosecutors and against defendants. Ruling in favor of defendants too often or consistently could be detrimental for a judge’s career. One Defender elaborates:
Judges are afraid, right? Judges want to be reappointed, and the vast majority of judges aren't elected. The folks that have the most sway are prosecutors. I mean, how many times have defense attorneys built up these campaigns to unseat really bad judges? I mean, I've participated and led the charge sometimes [in getting bad judges removed]. When the reappointment committee from the city comes around, I'm collecting stories; I'm collecting transcripts; I'm doing everything in my power to say, “Look how unfair and racist this judge is.” But if the prosecutors love this judge, they're going nowhere. Where the prosecution campaigns heavily against a judge who they think to be partial to the defense, you'll see those judges either not be reappointed, or their disposition towards the defense slowly changes. I can't imagine it's not because somebody spoke to them about it.
Adds another Defender:
I think there are judges that care; really, I do. But then one thing is that the judges that care sometimes get burned; and when they get burned, they turn. They turn into a horrible judge because they don’t want to be in the newspaper, or they don’t want to get yelled at by their superior judges, or they don’t want to get reversed, or they want to make sure that they are reappointed or reelected, or whatever their fears are to that end. So they have to be “tough on crime” or whatever the fuck it is that they do. They turn into these power-trippy, power-hungry, crazy people who are literally, to some degree, just trying to save their jobs. And that's a part of the problem in the system.
Another Defender states: “As a whole, I feel like judges are too scared to do what's right. Sometimes you have a suppression hearing and the cop is clearly lying; and they don't want to do what they're supposed to do for whatever reason. I'm not a judge. I don't want that crown. But shit, you chose to do that, so you should have the courage to make the appropriate rulings.” Another Defender agrees, noting that “even though we might be right on the law or the facts, judges frequently contort themselves to rule against us.”
No borough has a more intense political orientation than Manhattan. One Defender explains: “I've had off-the-record conversations with judges who have wanted to do [the right thing and] could see my clients struggling. [They can see] the reasons why my clients struggle and have wanted to do more, but have been powerless to do so because they're bound not only by the law, but also by the power of the district attorney's office, especially when it comes to elections and reappointments and things of that nature.” Another Defender elaborates:
In Manhattan, I think that the judges operate with an acute consciousness of the ramifications of their actions. What I mean by that is there's a sense of the political nature of their positions. I've even overheard a judge decline to release someone on bail because of an expressed fear of winding up in the newspapers if anything bad should happen as a result of releasing that person on bail. With Manhattan being what it is, [as] the sort of centerpiece of the city, with the DA's office acting like they're in Law and Order because they're Manhattan DAs and sort of the fanfare of Manhattan criminal practice, I think the judges for the most part [are] very invested in the political ramifications of all of their actions and the public focus on their actions.
Adds another Defender:
That's an interesting question, because I think there's been such a change in the bench over the last 15 years. Like a whole chunk of the older judges that I was raised by all retired…. I think the judges in Manhattan are under tighter pressure because Manhattan is sacred Whitelandia. (Author laughs) And the political forces against them are very different than what the judges in Brooklyn, the Bronx and Queens face…. In Brooklyn, you could be an idiot and pay your way onto the bench. I've watched guys that couldn't make it in Manhattan get banished to Brooklyn; all of a sudden, they’re in Supreme Court there. And it’s like, word dude? How'd you do that? (Author laughs) They wouldn't be in Supreme Court in Manhattan in a million years….
I also think that there's a much different relationship between the mayor's office and the courthouse in Manhattan than the other courthouses. It's a very different relationship politically…. I do feel that the political trends affect the judges in Manhattan in a much different way than they do in other boroughs. Part of that is just because Manhattan is just the most important county to the City of New York. It's where Wall Street is. Those things have an effect on the judges and the marching orders that the judges get; and they do get marching orders. It happens. They do get told, “Do this. Don't do that.” It might not seem that way; but over time when you watch what people do, then you can kind of feel it.
A third Defender concurs:
The good judges in [Manhattan], they get rid of as soon as possible. They get them up to the Bronx or they get them out to Brooklyn, because they feel like in those two places, they don't have anything to lose. The juries aren't going to be for them. The juries are much better in the Bronx and in Brooklyn, so they may as well put those judges who are going to be really good judges there, judges who force the prosecution to do what they're supposed to do and have a more equitable look at the criminal justice system. [It’s true of] judges of color especially; judges of color last a very short time in Manhattan ….
Judicial contortion in favor of prosecutors, however, cannot be fully explained by politics; as one Defender explains: “A lot of judges … default to the prosecution. I don’t think they default to the prosecution out of fear, or out of ignorance; I think that that’s truly their belief system.” Adds another Defender: “A majority of the judges are former prosecutors. They just seem to be an arm of the DA's office.” One Defender states: “Most of them are prosecutors. They're prosecutors with a robe on. They impose severe sentences; they are disrespectful to the defense bar. Much of it is like, not only how do you defend your client, but how do you manage a racist, mean judge? You just don't go in and have this impartial person on the bench. It's like, ‘Who did you get sent to?’ ‘Oh, this judge.’ And then it becomes now, how do I manage this person? How do I deal with this person and how do I get them to give me Y.O., or how do I get them to override the DA's opinion?” Adds another Defender: “I think they have no backbone, most of them. I think that in many situations, they're just a rubber stamp for the prosecutor. There are some who will actually listen to arguments; but for the most part, they're just a rubber stamp for the prosecutor.”
Queens judges in particular have a palpable bias towards prosecutors. One Defender states: “In Queens, there's this idea that if a judge is in love with you, you need to go back and figure out if you're doing your job correctly.” Another Defender shares this story to illustrate a point:
I remember in Queens, it was the 170.70 date.1 My client was young, he was 20. The [prosecution] didn't have the supporting deposition.2 [Now ordinarily, if the prosecution does not have the supporting deposition at whatever time the case gets called, the defendant gets released and the case gets adjourned.] In the morning [when the case was called, instead of adjourning the case and releasing the client], the judge said, “Come back at 2:15.” We came back at 2:15, and they still didn't have the supporting deposition. [The judge] said, “Come back at 4 p.m.” We came back at 4 p.m., [and they] still didn't have the supporting deposition. [The judge was going to make us wait] until five o'clock, the close of business. Then at 4:45, they faxed over the supporting deposition. (Author reacts) That’s an example of the Queens judiciary. So I'm on the phone with his mom [during the day]: “They still don't have it.” “They still don't have it.” “He might get out.” And then literally at 4:45 or something like that, [they faxed it over] ….
Staten Island is pretty horrific as well regarding the pro-prosecution bias amongst the judiciary. One Defender points out how there is “a pervasive, white-male culture among the judges in Staten Island. I don't know what their political affiliations are; but they're all sort of conservative. They're all pro-law enforcement; like they're married to law enforcement. They all live in that same world. So there was a certain culture, very clear from the judges, that was transmitted through that whole building.” Another Defender details:
The judges hate our clients. Staten Island is a hard borough if you're Black. You know Staten Island is like the deep down south of New York City, right? Literally, the highway that runs across I-278, they call it the Mason Dixon line. All the people of color live on the North Shore, and the white people live on the South Shore. There's like high levels of hate crime happening on the island. [Whites and nonwhites] don't really mix. The trains run to the south so the white people can get train rides; they don’t run to the north. It votes red while all the rest of the city votes blue.
That’s Staten Island, and the judges represented that. They came from New Jersey and Brooklyn and Staten Island, and they have a Staten Island mentality. As far as they are concerned, Black people are the problem, so they weren't very nice to our clients…. There was this one judge that got kicked out of Staten Island because he was so horrible. He treated women horribly; it was pretty much sexual harassment. He would hit on female attorneys; and if they didn’t like it, he would treat them badly. There was one experience I had with him where he was wholly disrespectful to me on the record. He said all kinds of rude and weird stuff. Then later on, he had the court reporter change and edit the record to take out stuff he said, so that he wouldn’t look that bad. He got kicked out of Staten Island; they sent him to the Bronx….
All of the judges were previously prosecutors, so they were friends with the prosecutors. They would always spend time with the prosecutors. There was one judge that officiated [a prosecutor’s] wedding. They had the wedding in the courthouse, a prosecutor’s wedding in the courthouse. They always were at each other’s parties. It's incestuous in Staten Island.
By comparison, judges in Brooklyn and the Bronx seem less problematic. However, judges in both boroughs have their issues. One Defender observes: “Brooklyn was a little bit more laid back; but still, again, they’re judges, so they have that same function. So, it’s different in terms of what the local flavor of that is, and of how they serve the oppression in Brooklyn.” One Defender notices the following with Bronx judges:
Most of them are “nice,” but will not hesitate to screw your client. That’s my general perception. I have had some [judges] that have asked me about my kids. One of them called me by my first name. They are very social and whatever, …. but they will screw your clients. They won't give them the benefit of the doubt. It’s like they see me differently [from my client], but obviously our relationship is that I'm an attorney, the defense attorney. And most of my clients I try to treat just like I would treat somebody I met on the street. I get the perception that judges don't see us the same.
[They think] we are different, but really we aren't. So, they'll be cordial to me. I'll get a “good morning.” I’ll have some that even ask about [my children]. I bring my [children] to court. One [judge] wanted [my child] to sit on the bench [with her] …. [But] they don't even have the respect to say good morning to a client.
Across the board, many Defenders find judges to be power-hungry, arrogant, and egocentric. One Defender observes: “The number of power tripping judges in New York is staggering…. Judges in New York are power tripping, especially since New York is supposed to be this liberal place. I think if people actually came to New York and sat in Criminal Court, they would really think at times that they are in the south and like a caricature of the south with how people are treated.” Adds another Defender: “They take things so personal. If I disagree with a judge and want to make my record as to why I disagree, they will try talking over me, they will cut me off, and not give me the professional courtesy so I can make my record.”3 Some Defenders refuse to give judges the deference they feel like they deserve. One explains: “They think that they should have some sort of special treatment because they're a judge. I don't believe in that. I don't call them ‘Your Honor.’ I've never called the judge, ‘Your Honor.’ I always call them ‘Judge,’ because that's what they are. They're judges.” Another Defender notes: “Some of them try to get under my skin, but I refuse. I'll go back to the office and complain about them; but in front of their face, I'm not fazed by them.”
Some Defenders have more positive outlooks on judges. One Defender points out that judges are “definitely better than they were when I first started; there's a lot of judges that if you went to trial and lost, there'll be a trial penalty. Even if you had a good defense, there is still a trial penalty. It's slightly changing. They're getting more judges of color, more judges that seem to see our clients as humans more so than what was before…. It’s a little bit easier for them to see our clients as human, which is helping. But we still have a long way to go.”
A few other responses:
Defender Former public defenders don’t necessarily make the best judges. I’m just thinking of one in particular who is notoriously bad. One of them used to be my supervisor….
Defender There was one judge in Staten Island who used to kick people out of his courtroom for wearing shorts during the summer. He used to kick them out of his courtroom and make them go to the church down the road to get pants. Now you've dealt with New York summers. It's swampy. It's not a pleasant experience. Yet he would make them leave, which would then result in that case being delayed, which would then result in that person not being able to go to work in the afternoon. It just extended that whole experience.
And that judge was the same age as my grandfather. And I could easily see my grandfather making the same argument the judge did, saying, “This is disrespectful. This is a place where business gets done and you need to dress appropriate.” My only pushback, both to the judge and to my grandfather, would be that we drag them here. This isn't a job interview where they're electing to come in. We put this person into cuffs, we brought them here. Then we told them what day to come back, damn their other responsibilities. And we're really going to tell them that those shorts aren't permissible. They didn't accept an invitation into our world. They were forced here.
And the judge just thinks he's making everyone be professional, you know, thanking young Black men for wearing suits because they're taking this seriously. No, judge; they took it seriously by showing up to court, not necessarily with what they were wearing.
Defender A lot of [how judges behave is] steeped in racism and maybe even classicism, but mostly racism. They’re unmoved by what they do to families, to Black families. It’s almost as if these judges don’t think—when we make arguments about orders of protection and the way that they’ll kick people out of houses, or how the collateral consequence of separating families and not letting people see their children or whatever will be terrible—it’s almost as if they don’t think that Black people have families, and that they love, and that they have communities. It’s like [judges] can’t see that. I don’t really know how to describe it, but [Black people are] treated as if they’re subhuman creatures, who don’t feel as deeply as [judges] do. Some Supreme Court judges are incredibly intelligent and cunning, and [they] use that to screw over criminal defendants. And then of course you’ve got a few good apples that are trying to do the right thing. But just a few.
Defender If the judge hates the lawyer, the client’s fucked. Excuse my language. But if the judge hates you, you are toast…. I would venture to say that I've learned that early. I learned that early on because I’ll never forget [having this particular] case where one of the judges set bail. I didn’t agree, so I did a bail review. This was a time when you were farmed out to Supreme Court judges in general [to do bail reviews]. I went to [a colleague of mine] who told me, “Okay, you’re going to go in front of this judge. You have to smile. You can’t be [sassy or anything like that].” But I knew everything. I didn’t listen, because I was a newer lawyer. I was new [and eager]. I got to that man; and I was just sassy, I talked over him, I was in the law and all this crap. And he just looked at me like, who do you think you are? Obviously, he did not give me what I wanted. It was at that point that I realized that I needed to learn how to play the game [of being very deferential to judges] ….
Defender I don't think that [Criminal Court judges] think before they put people in jail. I don't think that they reflect on the amount of power that they have, and how every time you throw somebody in jail you completely disrupt their lives. [There is one Criminal Court judge who] does reflect and will adjust her rulings and adjust what she's doing based on reasons that matter; if your client has a sympathetic health issue [or some other] situation going on, and there's a way to work around that, she’s on the side of allowing people to get the help they need or recognizing that certain crimes are not crimes for which people need to be in jail for. But I can't give that to a lot of these other judges. I think a lot of the judges are scared. I think that they choose their jobs over doing what's right. Even though our laws have changed on bail and all this different stuff, they still refuse to do what the law asks them to do simply because they want to keep their job. And I think that's sad.
I think that a lot of the Supreme Court judges are probably the worst of the worst, because they're the ones that sold their souls to get to wherever they wanted to go. They did what they're “supposed” to do. They put their heads down, they didn't give people chances, they didn't do anything that was the right thing yet controversial; and that's the only way that I think that you make it that far. So, for those judges, they also have a skewed vision of what their jobs are supposed to be. A lot of [judges] have no respect for folks with criminal cases, and maybe less respect for public defenders. They don't seek to make things easier for everyone; they kind of seek to make things more difficult.
Before I went to law school or before I even started practicing criminal defense, I assumed that a judge was the one that was supposed to come in and be reasonable and to look at both sides and to view jail and incarceration as a last resort. And I think that [in real life] they put people in jail so flippantly that it's shocking.
Defender I think [judges are] terrible; and the reason I think that they're terrible is because 99% of the time, if I'm going in front of a judge, that judge doesn't look like me, and that judge has never lived any experience I've lived. That judge is going home to their cushy husband or their cushy wife to live life in their little white bubble. (Author laughs)
Defender If you are entrenched in criminal defense, you understand that bias and litigating race in a courtroom is a thing now. In New York, before a juror is impaneled, they have to watch an implicit bias video, right? If you get on a panel and you're in the jury box, and there's a voir dire, the lawyers are allowed to voir dire on implicit bias. And of course, when I say implicit bias, it's not just implicit bias, but bias all the way around: implicit, explicit, based on race, gender, it's across the board. But you're allowed to voir dire on that. Preliminary instructions to a jury include the same language and admonitions regarding bias, and then final instructions to a sitting jury also include language admonishing or making sure that you do not bring bias into the picture.
Yet despite all of that, I just saw a judge stop a lawyer from talking about implicit bias in their closing argument. When you say to the jury, “Look, the closing arguments of the lawyers is not evidence. It's their view of what the evidence shows,” you've already told them you can accept or not accept what they're saying, right? But it's not evidence. So we take all of those precautions to make sure jurors are not bringing that bias into the room where they deliberate, and then you stop a lawyer from tying together the actions of a white police force towards a person of color. What is your legal basis for that? There is none, right? Back in the 90s, if you tried to bring that in, you probably get held in contempt. But this is 2024, and you're doing this? And guess what? This was a judge of color. (Author reacts) Yes. A Latina judge. I was stunned. I thought, you have to be kidding me. You gotta be kidding.
FN 1: A misdemeanor case begins either with a first-party complaint—a complaint drafted and signed by the person making the accusations—or a third-party complaint, which is drafted by a third party that was informed by someone else. On third-party misdemeanor complaints where the judge sets bail on a client, the prosecution has five days to “convert” the complaint, or to make the complaint a first-party complaint. If the prosecution fails to do so, the defendant is released without bail. This is pursuant to Criminal Procedure Law section 170.70, hence why the fifth day is called the 170.70 date.
FN 2: A supporting deposition is a document the prosecution can use to “convert” a complaint from a third-party complaint to a first party complaint.
FN 3: Every active courtroom in both Criminal and Supreme Court have a “court reporter,” or a person who sits and transcribes the legal proceedings occurring in that courtroom. The transcription produced comprises the “record”; it is the record of the court proceedings in each courtroom. An attorney that “makes a record” is making a point that he or she wants the court reporter to include in the transcript. This is very important, because the court record is what appellate courts rely on when considering appeals.
How knowledgeable are judges on the law?
For a layperson, this question might seem bizarre; most people presume judges to be very knowledgeable on the law. Defenders, however, come to see differently. One Defender explains: “There's a belief that when you become a lawyer that the judge knows more than you; and I quickly found out that that is not the case at all.” Another Defender adds: “Some judges, you're wondering how they got to be judges; you want to see their fricking certificate from the [Appellate Division] to ensure that they actually have a law degree…. Judges make me recognize something that Michelle Obama said to be true: you think they're supposed to be smart people and you are afraid to go in front of them or think you're inadequate. Then you step into the arena and you're like, are you kidding me?” One Defender recalls this experience:
I remember when I first started, I had a simple misdemeanor assault case where the prosecution alleged that the complainant suffered substantial harm because she got slapped in the face. So I went and I pulled up the law and brought it to the court. I cited the case on the record: “Here’s the case: Matter of Philip A.4 Petty slaps don't rise to the level of substantial harm in the assault statute.” The judge says, “OK, hmm…well People,5 what do you say about that?” And I'm like, what do you mean, ‘what do they say about that?’ I have the law right here! But you could tell that the judge didn’t know it.
Defenders generally agree that judicial knowledge of the law is varied. One Defender states: “Hit and miss…. I have had cases come back on appeal because they're like, ‘Yeah, the judge shouldn’t have done that. The judge was wrong.’” Another Defender responds: “I don't think I can generalize on that one.” Another Defender observes: “I think it's a mixed bag, especially in my borough. You have those who shoot from the hip, and then you have those who are very much lovers of the black letter law. And then there's everyone in between; that runs the gamut.” One Defender answers the question this way: “I don't know. I mean, I can write a motion and it's not decided in a way that I think is legally sound. I can make legal arguments and it's not decided in a way that's legally sound…. I don’t know if [it’s that] they don’t know the law, or if they just do what the fuck they want to do, because they can.”
A number of Defenders differentiate between judges in Criminal Court—where primarily misdemeanor cases are handled—and judges in Supreme Court—where indicted felony cases are adjudicated. One Defender notes: “I would say that most of the Supreme Court judges are knowledgeable on the law. With Criminal Court judges, it’s very hit or miss. I would err on the side of most of them not [being] that knowledgeable.” Another Defender sounds off on Criminal Court judges: “Judges in Criminal Court are not knowledgeable at all. Like they're really not sharp. I always look up a judge's background once I'm going to be in front of them for the first time, or if something has happened. A lot of these judges don't have a background in criminal law. So it's kind of like, you're put in this very important position, and you have the audacity to not know the law, but to also tell me that I'm wrong on what I'm telling you?” One Defender observes: “There are some judges in the criminal judicial system that have zero background in criminal law; they come from civil fields or other practice areas that are completely different than criminal. So I think it's hit or miss.”
Sometimes, public defenders have to educate judges on the law. One Defender observes: “I think that it's not unfair to say lawyers spend a lot of their time educating the judges. Now, to say that the judges don't know the law, or they never knew it, [is unfair]; I can't say that. But I'm saying in these instances, because we are people who are dealing with it every day, we are more [well-versed] on the law than judges.” Another Defender concurs: “My supervisor always says, ‘You know you have to educate these damn judges. They don't know the law; and if they did know it, they don't keep up with it.’ So with all these new bail reforms and all these new discovery laws, we are educating the judges all the time….” One Defender in a particular borough is quite bothered by how little Criminal Court judges know; it is “something that I've made a point to talk to the administrative judge’s court attorney about: ‘Your judges are wrong on this; they’re wrong on that. You need to have a meeting with them. They need to be trained. They just don’t know certain things that they should know.’”
Some Defenders point out that some judges are knowledgeable on the law, but they either still defer to the prosecution or deliberately distort and misapply the law. One Defender states: “Runs a continuum. Some, not at all; some are great on the law; but when I say great on the law, I'm not necessarily saying that they apply it in the way they should. They know it, and they do the gymnastics to apply it in a way [to harm our clients]. I think they know what they're doing when they do that.” Another Defender agrees: “I think a majority of judges, after practicing and after being a judge [for a while, will know] the law. I just don't think they follow it. Most judges know the law. All you have to do is read it. People make the law seem like [something greater than] it is…. You have to be halfway smart and know how to read. I think most judges are halfway smart and know how to read. I just don't think they care to apply the law fairly. I think they know it, but they just don't follow it.” Adds another Defender: “I think many judges, whether they have the inherent knowledge or they take the time to look it up, will still try to lean towards the prosecutor…. If there is jurisprudence where a good portion of it would lead towards a defense-friendly ruling, and you come and you find the one or two cases that is pro-prosecutor and make that the basis of your decision, I'm looking at you because you’re looking funny in the light.”
Other responses:
Defender Especially baby judges, not at all. With a lot of things it's not law, it's practice. So they think because it's the practice in the borough, it's law; and it's not. Because if you cross the border into [a different borough or jurisdiction], the same issue might be handled differently. And it's just because that's the practice of the locality, not the law. So I think a lot of times they're just like, “Yeah, I can't do that,” and I'm thinking, of course you can do that. You just don't know that you can do it. So I don't know what they’re teaching them in judge school; but they go to all these judicial conferences so many times. So I wonder with them, did you learn anything in judge school?
Defender I did an internship in law school with a judge, and one of the things that I learned pretty early on is that judges make decisions, then figure out ways to justify it. I think that is abundantly clear, because there are cases where I’m like, I don't understand in what world you can come down on that side; and it just boils down to this: judges are going to do what judges want to do, and there's no way around that.
I don't think that they are smart. I think some are worse than others. [This one particular judge thinks he’s really smart, but he] is not smart at all. He basically relies on his court attorney for literally everything, and his court attorney doesn't even know what he's doing. You ask [the judge] to explain his ruling, and he'll be like, “Yeah, hang on. Let me grab my court attorney.”
[My colleague] actually had a motion in front of [a judge] where he denied a Mapp hearing6 because, according to him, the client had no property interest. In the decision, he's like, “Had the accused said that he was an overnight guest, then he would have standing; but that's not what they said in that case.” [My colleague] literally had to write a fucking motion that said, “So, that thing that you said that I did not include in my motion? See paragraph X, where I include that in my motion.” It's not an intelligence game. It's not any of that. He's just a rich white man who has had the privilege and kissed all the right asses to get into his position. So he basically gets a license to say and do whatever the hell he wants; and then he's just going to hide behind the law.
The decisions [by judges] are very rarely, if ever, very fact intensive. You hide behind the law: “Based upon a review of (list everything in the statute), I determine (fill in the blank, then insert another quote from the statute). Therefore, I'm doing such-and-such.” I don't think they're knowledgeable. I think judges just know what they want to do and then just figure out a way to get to that point….
I had done a hearing in front of [this particularly terrible judge]. It was a DWI hearing, and it was on the two-hour issue. The law could not be more clear: it literally [says that] after two hours past an arrest, a refusal to take the breathalyzer test can't come in [as evidence against an accused person]. She's just like, “I don't read [the caselaw] that way.” And I'm just like, “Judge, have you read it? Like, what part of the decision are you looking at?” Granted, it's probably not the best idea to ask a judge if they've read the law—she said, “Don’t ask me if I’ve read the law. Don’t ask me if I’ve read the case”—but I don't regret that at all, because it literally just showed that she was so wrong on the law that she's telling me that a case doesn't stand for the basic proposition it stood for. What was very, very clear is she had not read the fucking case. There's no way you can actually read the case and read the sentence that I'm fucking citing to you and say, “Oh, no, that does not mean at all that if the refusal is after two hours, it can't come in.”
Defender In my personal experience, plus the collective experience that people talk about in email, etcetera, I would say a lot of judges either themselves [are knowledgeable], or they make sure their court attorneys [are] knowledgeable on the law. We've all had experiences with judges [who did not know the law in a given situation] who will say, “You know what? Let me take a step back” or “Let's take a recess” or “Let's get an adjournment. I'll look it up and I'll get back to you.” So for me, I appreciate that aspect of things, because I don't need my judge to be an all-knowing force. I just need them to be able to say, “Huh? OK. Let me not just rule for the prosecutor by default, because that's what we love to do. Let me take a step back and actually look into this.” …
A lot of judges trust their court attorneys to deal with [knowing the law]; and some of these court attorneys are not good. They just say, okay. I know my judge isn't defense-friendly. Let me try to figure out a way to rule for the prosecutor, even if that means pulling out one random line in a decision that isn’t even the crux of the damn decision. Because that has happened as well, where it’s like, this court attorney quoted this decision, and that’s not what the decision stands for.
Defender Oh, no, they're not very smart. I would not say that they're very knowledgeable on the law.
Defender Oh, they don't know anything. The clerks are the ones that are knowledgeable. The clerks [and] the court attorneys are usually the ones who kind of keep everything going and keep stuff in line. A lot of times, there are judges that are working off a script; and if you go off the script or you have to do something that's outside of the realm, they don't know what to do. And I think an interesting part of our job becomes finding a tactful way of educating the court on the law, [finding] a nice way of doing that without upsetting the judge while still trying to simultaneously get what you want for your client. Like I've had experiences with judges where I'm like, “No, you can do an ACD here.” “No, the fine is [this amount].” “I'm sorry, judge, but….” [We have to find] these tactful ways of telling them that they're wrong.
But a lot of them I don't think are that knowledgeable. There are a few who actually know the law; and the few that do really just kind of use it to screw our clients.
Defender It varies. One of the judges that I really like—he was a prosecutor; he was one of the supervisors in their office when he became a judge—he's always been respectful. Sometimes he could definitely be wrong—they can all be wrong—but it’s easy to talk to him and point out his error [without him] digging his heels in and saying, “No, I'm right.” Some other [judges] just think that they're God; they're coming out of the prosecutor's office, and [they’re like], “I've done this work for X amount of years, etcetera, so on and so forth.” So they've already got it set in their mind how to handle things because of their background, so to speak.
Defender I would love to know what the vetting process is for people to become judges, because the number of judges who I've had to argue with, or I've watched colleagues argue with, about basic issues within the law is honestly offensive. These people are put on the bench, expected to do “justice.” How do you even start in this effort to create a just environment when you don't even know what the law is?
There are way too many judges who are just former prosecutors or prosecutor-minded and act as a second prosecutor in a courtroom. Judges objecting themselves when the prosecutor doesn’t object. There are judges that don’t understand what impeachment is, judges who don't understand what hearsay is. It is offensive, because there is way too much power in these people and they don't understand the law.
FN 4: The citation to this case is: 424 N.Y.S.2d 418, 49 N.Y.2d 198, 400 N.E.2d 358 (N.Y. 1980)
FN 5: “The People,” when capitalized, refers to the prosecution. The caption of any criminal case in New York is “The People of the State of New York vs. [Accused Person].”
FN 6: A “Mapp hearing” is a suppression hearing that relates to physical evidence received in potential violation of the Fourth Amendment. In a Mapp hearing, the judge is to determine whether or not evidence was lawfully recovered. If it is found that the evidence was recovered in a manner that violated the Fourth Amendment, the evidence is suppressed, i.e., deemed inadmissible at trial. Mapp hearings spawned from the case Mapp v. Ohio, 367 U.S. 643 (1961), another landmark Supreme Court case.
How are the Black judges in your borough?
Black criminal law judges in New York City are few in number. When answering this question, one Defender first notes: “Well, there's not a lot of them.” Another Defender wonders in response: “How many do we have? Two?” Staten Island appeared to have a diversity crisis. One Defender states: “[We have no Black judges in Criminal Court in Staten Island]. The last judge we had is now the supervising judge for Supreme Court…. [There was one Black judge who] used to be out here, coming out of landlord tenant court. It took an adjustment. He is one of the judges who died from COVID. (Author reacts) I mean, he was a sweetheart; but when he first came here with his Southern accent, [people wondered], do you really know what it is you're doing? Cause this is not landlord tenant court. But he stayed out here for a little bit of time….”
Defenders also find that African American judges tended to get less respect than their Caucasian counterparts. One Defender offers this example: “In Staten Island, I think there was one Black judge; and everybody thought [he] was kind of crazy because when defendants would come and say, ‘Those cops just stopped me and said that I was smoking a joint, and I wasn't,’ he was the only judge who would believe [them. He would sometimes believe] Black defendants; and everybody in the system was kind of like, ‘Oh, it's [this] judge.’ Everybody mocked him and thought he was crazy because he seemed to relate and give credence to the things the Black defendant said….” The lack of respect for Black judges extends even to other public defenders. One Defender observes: “I think when we have Black judges, people judge them more harshly and call them names. They call some of these Black judges stupid. I've had colleagues of color call them stupid. I remember one judge [that my colleagues called stupid], and I said, ‘She's not stupid. She just [moves] slow. Like, just stop. Do not embrace the words of the oppressor. Stop it. Think about what you're saying and why are we always calling these Black judges stupid?’ Because we have plenty of white judges that are stupid, and the criticism for them is not as harsh.”
All that said, Defenders’ perceptions about African American judges in their boroughs vary. Some Defenders find Black judges to be favorable or at least more understanding than non-Black/white judges. One Defender states: “They’re great. With race, the majority of our clients are Black. It should be a little easier for them to see our clients as human, and to have that human element; to see that people make mistakes. People don't grow up in the greatest situations. People have bad days, [and Black judges tend to understand that better] ….” Another Defender notes: “The ones … that I would appear in front of, they tended to be fair. There weren't that many; there are not that many.” Another Defender observes: “I will say that the Black judges tend to be better, but still not great…. One thing I do see with Black judges is that, just from being Black, they’re able to see through—whether they’re good judges or bad judges—they can see through bullshit a little easier than the white judges, whether it be bullshit from complainants or even bullshit from our clients. I think they can see through that a little more, I’ll give them that; just being able to relate culturally on some level.” Adds another Defender: “In general, I feel they're more approachable…. I find it easier when we were talking about the other kind of oppressions or problems your clients face, about picking up their kid or if they can be late. I find them better on that stuff….”
Some Defenders see no real difference between Black judges and non-Black judges. One Defender answers: “I don't think the fact that they were Black did anything good for the clients who were mostly Black. I'll say that they didn't do any good for most of the clients.” The Defender who finds Black judges “more approachable” also says this: “I don't know if, on paper, the outcomes are that much different in terms of the amount they suppress, or if they do a bench trial, or other rulings. I don't know if they would be significantly outside of other judges on the continuum….” Another Defender adds: “You can make no assumptions about anybody, but particularly not with Black judges. I think it's interesting because, not unlike Black police officers, I think they experience their own kind of challenges within the profession, with being Black judges. I'm sure they experience bias in terms of promotion and [in terms of] how white judges might treat them and all that sort of thing. But I don't really see it translating into an understanding of how bias affects our clients. I don't expect anything different when I see [a Black judge]; my expectations are unchanged when I see a Black judge.”
Then some Defenders find Black judges to be worse than white judges. One Defender states: “I will say the African American judges, at least [the ones] that I've dealt with in [my borough], are actually less cordial to me.” Some Black judges are, in the words of one Defender, “flat-out bad and evil towards defendants.” Adds another Defender: “What strikes me is that the judges of color I find are often the worst judges that we have. The judges of color are often completely pro-prosecution. They will sentence your clients to more time. I don't get it…. Their affect in court and their decisions are like night and day. Some of the Black and Brown judges I've seen have [given out] the worst sentences. They sentence people way more harshly than a white judge would…. For the most part, if I'm going to a Black judge in Supreme Court, I'm scared for my client.” One Defender reveals: “There’s this Black judge in Queens that the Appellate Division must be tired of, [because he is always getting reversed for terrible things he does to the defense at trials] ….” Another Defender notes that the majority of Black judges in his/her borough “were just routinely bad. They fell all over themselves to do what the prosecutor asked and would disagree with all of your arguments unless it was just clear that they had [to agree], that they were sort of bound by the law…. [One would think,] well, this person has obviously lived as a Black person their whole life and must understand that you have to take with a grain of salt some of these representations made by the prosecutor. But it would seem to have fallen on deaf ears; and it was disheartening because you want to believe that they're supposed to get it. Unfortunately, a lot of them just didn't.” One Defender has this to say:
My wife and I just finished watching Falcon and the Winter Soldier—I'm a huge Marvel fan, huge Marvel fan—and she turns to me and she goes, “They just made Sam Wilson the model minority, right? Like he's a veteran and he's an Avenger, and that's the only reason why he's accepted by anyone to be the new Captain America.”
I think that's kind of what [Black] judges go through. They want to present themselves as this model minority and give no leeway, give no mercy, give no safe haven to any minority that doesn't fit their mold or their criteria. So they can sometimes be the harshest judges. Now this, of course, doesn't apply to all of them, but it seems like there's this feeling inside some of them that’s like, if I could do it, you can do it. And the fact that you're not doing it reflects poorly on you. And it's my job to set you straight. You probably don't—these are things I’ve heard—you probably don't know your father. I could set them on the right path…. Judges have this model minority tendency, which makes them sometimes much worse than our Caucasian judges.
Some defenders observe how Black judges endorse respectability politics. Explains one Defender:
[This one Black judge] always felt a need to pull up the Black women attorneys and “impart some knowledge” to us that always felt like, you better do this or that to be respected. You're a Black attorney, you gotta represent for all of us and representing meant this, that or the other. And it was always a stereotypical idea of what it meant to be an attorney…. I understood where [she] was coming from, because we are often judged very differently; but I remember [her] doing that kind of stuff.
I would wear headwraps sometimes [to court]. I remember she called me up to the bench one time and she said, “What is that on your head?” And I'm like, “What do you mean? It's a headwrap.” And she just didn't think—I don't know if it was a style of head wrap—that seemed professional enough…. I understood where she was coming from; she felt that the way to empower us was trying to tell us how to conform to this idea of what we were supposed to be….
Other responses:
Defender One of the worst judges we have in Supreme Court is a Black judge. She's been a judge for probably 20 years; and she is just harsh, terrible on the law, and very punitive towards our clients. It’s one of the places we try to avoid because we're really just not going to have a fair shake…
There was a case that [colleagues tried in front of this other Black] judge where these colleagues, who were white, were saying that the cops stopped their client because he was Black. I, of course, thought there was truth to that; but the judge yelled, “Sustained! Sustained! Stricken from the record!”7 She was really angry when they said that, and I’m like, why? This is the God-honest truth, and I never quite got it....
Defender I did a trial in front of [this particular Black judge]. It was really not a fun case. The client was a kid being charged as an adult for the attempted murder of a police officer. The complainant was a vegetable; he had some permanent brain injury and couldn't function.. There was media in the hall. It was a lot of pressure, and [the judge] surprised me. She was a lot fairer during the trial than I expected her to be, not because of anything against her personally, but because with that kind of pressure I expected her to be a lot more protective of her own career. And she actually was [fairer than expected].
Now that's not to say that she gave away the store, because she didn't. We started the Monday after a holiday. The Tuesday before the holiday, they turned over, I want to say, at least nine hours of recorded interviews and maybe about 400 pages of documents; and she still made us start that Monday. So it's not like she bent over backwards [to help us]; but at the end of it, after he was convicted of the first-degree assault charge and acquitted of the attempted murder charge—for what that was worth—she still [only] gave him one-and-a-third to four years in prison. This was with all the pressure, with the jurors crying after the wife testified. I didn’t expect that.
So yeah, she really surprised me with that….
One of the worst judges that I dealt with in that building is also a Black judge. I don't know if anybody has mentioned [this particular judge] to you before, but she is not pleasant. She does not believe in following the law. She will not give your client the benefit of the doubt for anything; and even though the case law is CLEARLY on your side, she will rule against you. So it's one of those things where I feel like I have to warn a client: “Yes, we're going in front of this judge. You're going to see she's a Black woman. That's not to your benefit.”
[There were a couple other Black judges in Supreme Court and Criminal Court who were great.] I’m trying to remember [this particular Black judge]. I don’t really appear in front of her that much. I did one trial in front of her; and she was difficult, but she acquitted [my client]. So I can’t complain too much….
Defender I did one of my jury trials in front of [this particular Black judge]. It was my first jury trial. We had a potential juror who was a white man, and he told her he wasn't coming back. [The judge] cocked her neck and said, “Excuse me? Oh, you will be coming back every day until I say you're not.” … She had him step out, and she said to me and the ADA, “I'm not going to put him on your jury because he doesn't want to be here, but he cannot talk to me like that. And he only did that because I'm a Black woman.” I don't always agree with her, but I appreciated the fact that she recognized what that man was doing; and she used her power to make him be this small and make him come back even though he told her he wouldn't.
FN 7: During legal proceedings, like hearings and trials, attorneys will make objections to questions the opposing attorneys is asking, and sometimes to responses that are given, on the grounds that the question violates legal rules. When a judge “sustains” an objection, that means the objection is valid and the question asked cannot be answered. When a judge “overrules” an objection, that means the objection is deemed invalid and the question can be answered. Sometimes, a judge will sustain an objection and “strike” a question and/or the answer from the record. This means that whatever was “stricken” is not a part of the transcript and cannot be considered during deliberations later.
How much power do judges have?
Defenders generally agrees that judges are quite powerful. The greatest power judges have is the power to set free or to detain an accused person. One Defender states: “When the defendant comes before them, they can decide to release them. They decide liberty.” Another Defender concurs: “Well, they have the power to put somebody in jail, so I think that's an enormous power…. Whenever someone has the power to take away your liberty and your freedom, that's an enormous power. Not too many people have that power, [but] police officers have it and judges have it.” Adds another Defender: “I think they have a lot of power…. Let's talk about bail before the bail reform law: deciding whether or not somebody's going to remain at liberty while they fight their case or be incarcerated where they're most likely to take a plea, or most likely to catch another case if you're incarcerated because of the violence that happens in the criminal justice system, [is a great power].” Another Defender thinks the following: “They have a lot of power with sentencing…. That's their greatest power, because they are the ones that determine how long someone goes to jail.” Judges use this power to discourage accused persons from insisting on their trial rights—and to punish them harshly if they exercise their trial rights and lose. Remarks one Defender: “You have judges who are incredibly harsh; they’re basically like, ‘If you lose this trial, I'm going to sentence your client to 20 years, 25 years,’ and essentially destroy somebody's life.”
Judges have power in other areas as well. One Defender notes the power judges have over plea agreements: “Even if the ADA and the defense attorney come to an agreement, the judge can decide if they want to entertain that or not. If they feel that it's not enough, they can overrule it or veto it, I guess you could say. Some of them do enjoy flexing their power.” Other Defenders recognize judicial power in deciding “suppression hearings and making rulings during trial.” One Defender elaborates: “They have the power to decide if evidence is admissible or if it's not. They have the power to decide if the [prosecution] has met their burdens in a number of different aspects. They had the power [during COVID] to unilaterally open up their courtrooms and push cases forward, even when speedy trial [was] suspended. So they have an incredible amount of power. There are checks, but by the time the checks happen, the damage is done.” Another Defender agrees: “Even with the rulings that they make during hearings and trials, they have a lot of power. They can pick and choose what comes into evidence. And a lot of times, the rules of evidence and case law is a gray area; so it's not as if they're blatantly violating the law by exercising their discretion.”
Some Defenders lament how judges are often scared to use their power in a manner that contravenes the prosecution’s desires. One Defender notes that it was “unfortunate, because they are supposed to be neutral arbiters; and if they were, I think the process would run a lot differently. But they're not neutral at all; they are pro-prosecution.” Adds another Defender: “They have more power than they assume. A brave judge uses his power or her power. There are very few brave judges; and if they are, they've been around a long time and they don't care because they've established themselves…. Judges really tend to depend a lot on what the ADA says.” Says another Defender:
I think if they actually exercise their power, then they have a lot of power. They can dismiss indictments. They can make offers on cases from the bench. They might not be able to control the charges, but they can control the sentence. If they think something is completely egregious and is messed up, they can give them the minimum sentence that they can possibly give. And a lot of times they just don't do that. The prosecution will be recommending a misdemeanor and 30 days in jail, and the judge will be like, “Well, the prosecution wants 30 days.” And I’m like, I don't give a shit what the prosecution wants! You're the one doing the sentencing. You're the one who has the case in front of you. You can decide that 30 days is too much to give someone for stealing a toothbrush. And I know the only reason why they're recommending 30 days is because bail is set, the client is not getting out, and they have like a 20-page rap sheet. Otherwise, why does this person need to go to jail for 30 days for stealing a toothbrush? And they really don't, but the judge doesn't want to use his or her power and exercise discretion and do anything.
The judicial fear of offending prosecutors is justified. One Defender shares this anecdote:
It's funny, though: there was one [Supreme Court] judge who was a former prosecutor. He screamed and yelled and was difficult to deal with, even though most of the time he did the right thing for our clients. But he lit into defense attorneys nonstop, and nothing ever happened to him. He did it once to a prosecutor, and he got demoted to Criminal Court. (Author reacts) He eventually ended up going back to Supreme Court; but it is just interesting, the dynamics of that. You could do anything under the sun to the defense attorneys, but [not prosecutors].
Other Defenders speak about how judges are prisoners of politics and consequently lack real autonomy. One Defender states: “If we're talking about autonomy as opposed to power, I don't know how autonomous they are. And I think there is a distinction in that, because they are part of a system; and they have marching orders from their superiors, as well. So I don't know how autonomous they necessarily are.” Another Defender expresses similar thoughts: “I think they have a reasonable amount of power to move the needle forward in terms of their decision making. But [with] my understanding of the political structure, I think the politics are more powerful than the individual range of the judge.”
In New York City, some criminal law judges are appointed by the city government while others are elected. Whether a judge is elected or appointed appears to have an impact on how autonomous a judge might be. One Defender explains:
You know, it's funny: I had an interesting conversation with one of the judges in family court about that. She was saying that her position is a little different because she's elected. As an elected judge, even though she does have to follow the rules, obviously, she felt like she has more leeway in making rulings that she thought were just, as opposed to what she thought she had to do based on the circumstances. It's interesting because—and I don't think with her that she would have necessarily done things differently if she were appointed—I think she would be a lot more nervous to make decisions if she were appointed.
I feel like with some of the judges who are appointed, there's a little bit of that. There's a little bit of concern about [whether they will keep their job because of what they do.] I don't necessarily see that [with] some of the elected judges.
Other responses:
Defender Judges have a lot of power. I was talking to a friend who’s been going through a divorce. She was talking about how their judge made them wait hours and hours and didn’t show up; and she’s like, “What's going on? Is this normal?” I said, “Yeah, girl. That’s what judges do; they have power. It’s like their little kingdoms.” So I think they have a tremendous amount of power. In Manhattan, people say, “Oh, that judge is good.” I always thought that it was like picking amongst a barrel of rotten apples, like which one was the least banged up that you could live with. Their job is to keep the system going; and even the ones who are former public defenders, power can corrode that and make that rottenness appear…. I feel like people have this sort of air about them as judges.
Defender Too much. I mean, really too much. They really do. Even with bail reform, some of them will find a way to read outside the statute. And in those moments, you feel powerless. Your clients had bail set on a first arrest, and you may have to writ8 it or something later; but at that moment they hold all the power.
What if you go to trial and, God forbid, the jury comes back guilty and the judge [sentences the client to] 10 years on a robbery, or whatever it is? In that moment, they hold all the power. Yes, there are other avenues for you to appeal, [but your appeal is] going to another judge who most of the time thinks the same [as the trial judge], or is a colleague of the individual [judge] you had the fight in front of…. That's why I said [they just have] too much power. That's the reality, and that's why we have to change the judges we have on the bench.
Defender I remember practicing in [this particular borough] and there was a judge who'd been there for a long time. I remember having this robbery case, and he said, “What do you want, [My Name], for this case?” And I said, “Judge, I want mercy.” And he and I went back to his chambers with the ADA. The ADA tried to chime in, and he says, “You're not a party to this, Mr. ADA.” And he basically gave me what I wanted. But there are very few judges who do that.
[There was] another judge who, after many years on the bench, decided that all detectives on undercover sales were liars. If you waived a jury trial in front of him, he would acquit your client. “Come up, [My Name]. These motherfuckers are liars. They've been lying. They've been doing this job too much. You just can't believe anything.” When he said to waive a jury, he meant it.
I remember I had a case where a 17-year-old was accused of raping a little girl he was babysitting. The judge would not give him Y.O.9 Then on the day of sentencing, the judge couldn't figure out how to do the sex offender paperwork. They couldn't figure out how to do the paperwork. Now you don't have to register as a sex offender with Y.O.; so eventually, the judge got so frustrated that he just gave him Y.O. (Author reacts) He got so frustrated: “Never mind! Y.O.”
They are bound by the sentencing laws, the predicate sentencing law; but they have a lot more power than they would use. And they don't put pressure on the People. The old-time judges would do that; not always, but [they would call up an ADA, make them bring their supervisor to the court part, things like that.] New judges don’t do that. They do whatever the ADA wants:
Defender: “Judge, you have the authority to do this in this case.”
New Judge: (Nasal voice): “I know, but the People want blah blah blah.”
Defender: “Well, yeah, but you don’t have to do what the People want, judge. You are the judge and you do have this scope of power and range that you can use.”
New Judge: (Nasal voice): “I know, but I’m just not comfortable with this.”
Most judges are worried about their job and about being in the newspaper; and they don't do what they could do.
Defender A lot of power. One stroke of a pen, one decision—a small decision, or what they see as a small decision—can have a life-altering, life-damaging, sometimes death-inducing outcome or circumstance similar to death. There's the popular case with Kalief Browder10; but for people who've been practicing in New York City, whatever the borough, what we know is that our beloved brother Kalief paid the unfortunate price to expose what has happened in some degree to so many of our clients and clients’ families.
[Judicial decisions carry enormous weight]: whether a judge decides to adjourn a case, whether to admit something or not admit something into evidence…. I had a simple case where the judge—we were at sentencing for a youth, so the case is over—ruled on certain hearings inappropriately, I felt.... The judge needed to make a decision about whether my client would [have to] stay in New York City or could leave with some family members who wanted to take him someplace else after his mom had died. His father wasn't really in his life. [His family members wanted to move him to Pennsylvania to complete probation] as opposed to finishing out probation here in the city. And the judge made a decision that he had to stay in the city because he had to finish probation here.
I'm not a proponent of taking kids out of New York City because New York City is bad and everybody should go to the hills, as if the hills and suburbia is where it all works out. I'm a proponent of fixing what's wrong in New York City. But in this particular case, nothing was being fixed in New York City. Until we got to that conversation, take this kid someplace else. But the judge said no. I tracked that kid and became friends with that kid and tracked his life all the way to federal prison. And what I believe is that had the judge just said, “Let him go to Pennsylvania; let him get out of the city”—because everything that happened after that happened because he stayed in the city and [got involved in] whatever was going on in the city—this kid may have been someone that you could have interviewed in your book as a potential lawyer. He could have been a lawyer that you could have been talking to right now about the work that we do.
I have a bunch of those cases; but for me, the reason why this one sticks out is because I met this little boy at 12 years old, and I think I lost contact with him in federal prison, way past like 18, 19. So I watched the progression of his life personally. I just believe that had that judge said on that day when I presented everything I could from the family in Pennsylvania: “That's a better idea; he should go there,” [his story would have been different] ….
So I think that that judge had a lot of power; and that judge fumbled the ball.
FN 8: A bail writ is a legal application for a review of a judge’s bail determination.
FN 9: “Y.O.” stands for “Youthful Offender.” It is a designation that significantly lessens the impact of a criminal conviction. A person who receives the designation is deemed to have no criminal record. For persons to be eligible for Y.O., they must have been at least 14 but under 19 years of age at the time they committed the alleged crime, and the crime must qualify; certain felonies, for example, render the youth charged with them ineligible for Y.O.
FN 10: Kalief Browder was a young Black man who spent three years in jail awaiting a trial that never happened on a robbery charge that he adamantly denied. While on Rikers, Mr. Browder was assaulted by corrections officers on a number of occasions and placed in punitive segregation. A couple years after he was released from Rikers, Mr. Browder, psychologically affected by the three-year detention, committed suicide. See Alicia Maule & Yili Liu, Remembering Kalief Browder a Year After His Suicide and Why Rikers Island Should Be Shut Down, Innocence Project (Jul 1, 2016), https://innocenceproject.org/news/remembering-kalief-browder-year-suicide-rikers-island-shutdown/.
What role if any does your gender play in how judges treat you?
The men who answer this question generally recognize that their gender works to their advantage. One Defender states: “That’s hard to [answer] because all I have is my gendered experience. From my experiences, Black women have it a lot harder than I do. They have to deal with things that I don’t have to deal with. There's a lot of female colleagues that I have that have been put in, and are placed in, uncomfortable positions by judges, by court clerks, by court officers. So it's not for me to speak on a woman's experience. But it’s easier for us; we have to worry about different things.” Another Defender concurs: “I think it's a huge role. I think it's a very huge role. I say that whether it's a female judge or male judge, because there have been female judges who have given me more leeway and more deference just because I'm a man; and then there are male judges who have the bro-ey type attitude of ‘We're both guys….’” Notes another Defender: “Well, I have an advantage being a man. There are so many dynamics that occur the moment you walk into a courtroom…. I've seen my female colleagues spoken to in a way that I don't feel a judge would've necessarily spoken to me; and when those women push back, the judges take offense. I’ve seen that happen.”
However, some of the men amongst the Defenders also note that being passionate can be confused for hostility, and that they can be perceived as threats. One Defender explains:
I think it's a double-edged sword. I don't think as a Black male that I'm going to get the gender dynamics, like the ‘Hey sweetie’ or the commenting or them being inappropriate because of my gender the way some of my female counterparts get. But I also feel like sometimes, when you're being respectful and you're advocating for your client, some of the judges take it personal. It's almost like a bravado, two-male titan-type thing. And that's not what you're doing. You're not trying to embarrass the judge. You're just trying to advocate for your client. But I feel like some of the judges take it personal, and it's almost like a personal attack on them when you're making a legal argument. Some of them have been inappropriate.
The women who answer the question fit roughly in three groups. In one group are Defenders who experienced or witnessed differential and adverse treatment based on their gender. One Defender states: “I’ve definitely had judges where I’ll make an argument and they’ll completely dismiss me, and my white male colleagues will make the same argument I made moments before and it’s taken seriously…. They’ll test me and make me prove anything I say, and then white men can come in and say the most ridiculous stuff and the judge is like, ‘Oh my gosh, that makes total sense!’” Another Defender remarks: “A lot of the older judges were a little bit dismissive, but in a way that they thought they were being nice. Like, they would call me by my first name, and they wanted to make jokes and joke around. I just don't think they took me as seriously….” Adds another Defender: “Anytime you were impassioned about a position you were taking, it's automatically claimed that you're being emotional. There is the old adage that if a man does it, it’s zealous advocacy…. But as a woman standing up there doing it, you had an attitude or were being temperamental. And I'm like, no, I'm being a zealous advocate defending my client. Like, what are you talking about? I'm pointing out your stupidity, but now I'm being disrespectful. So I think that there was a lot of that. [As a woman], you couldn't get too impassioned in your position, because then it was an emotional thing. It wasn't a justifiable, actual legal argument you were making.”
A few anecdotes:
Defender I remember my very first trial; and the judge knew it was my first trial. It was a domestic violence bench trial. On an attorney’s first trial, the second seat is your direct supervisor. The lead counsel does everything, so you're examining every witness, you're doing all the arguments, everything.... This particular judge was so mean to me throughout the trial; it was pretty bad…. Later on, I asked for sanctions [for some misconduct the prosecution engaged in], and this judge flipped out. It was so bad. He literally was like, “What makes you think I can even do that?!” and I said, “Well, this statute says that you can do X, Y and Z.” He then said, “You want me to stick my pinky in the air and see what sticks?! You want me to stick my hand in the air and just float and wave it around and see what sticks?!” And I said, “If you think that's appropriate....” And he went off. He stormed off the bench and didn’t come back for a while. That night, I wrote a letter brief to the judge afterwards that fully laid out the law. Later on, he said, “So, about those sanctions…it turns out you were right.”
Like, DUH. I know I was right. I had the law right there. And he had been an attorney and actually a court attorney for decades. But he didn’t know the breadth of a judge’s power to issue sanctions, and he was so disbelieving of me and my argument that he treated me horribly even though I was right and he was wrong.
Defender Judges are sexist. We know that. Judges say things to me that they won't say to a male attorney. A colleague of mine told me that a judge told her that she's too pretty to be a defense attorney. (Author reacts) Yeah, she's too pretty to be a defense attorney. Once, I was wearing a red dress, and a judge asked me if I was in a gang. (Author reacts) So many messed up stuff has happened… [And for me, it’s like,] how do you isolate whether this was because of race or gender, or maybe age, or a combination of the three?
Defender I’ve definitely experienced judges that disliked me personally. I remember there was this white liberal judge that my colleagues would say, “Oh, he's so good for the client. He's great. He's a good guy.” Every Black woman I know found him to be terrible. I had two or three clients who were gentle, gentle souls, and he straight up escorted them into the prison system. Eventually I started wondering, do I need to bring a white person with me in order for this person to act the way they are reputed to be acting?
Defender I think also judges can be more patronizing to women: “Sit down, Ms. [My Name]”; “You don’t know what you’re talking about, Ms. [My Name].” I think they can be condescending, and they don't like women who talk back to them. Like a guy can argue and argue and argue, and it's just like, he's one of the boys; but when women do it, then they're [very annoyed].
We had a particular judge in [this particular borough] who was really famous for that. He would become very agitated when a woman would keep arguing about a case and not let it go. I had to talk to him on several occasions. He’d say, “Well, it's like my daughter talking back to me.” Well, this is not your daughter talking back; this is a lawyer defending a case. So I think that [some judges think] women are supposed to back down, be told an answer, and then say, “Okay, that's it,” and not just keep going. And if they keep going, then they start having difficulties with particular judges who find that offensive. They will almost be held in contempt and be told, “Get your supervisor.”
I think that judges feel that they can talk to women in a way that they can't talk to men. Women are reprimanded in a way that they don't reprimand men. Their physical appearance is commented on in [disparaging ways.] I've never heard a judge comment about a man being heavy or disheveled, but I've heard male judges point at women's nails not being done.
I even remember [a situation] where a female colleague couldn’t stand up on a case or be in court on a certain day because she had a doctor’s appointment. The judge called her gynecologist and changed the appointment. (Author reacts) They would never do that to a man. That’s such a private matter. How do you put the court’s business above someone’s health? That’s very disrespectful….
Defender There was one judge—now he was definitely racist; I'm not saying that he wasn't—that I did one trial in front of. Maybe about five years later, I was sent to him for hearings. [It was a co-defendant case, for which the counsel was a Black male attorney]. I would make an argument in the hearing, or I would go into a line of questioning, making a record, and the prosecutor would object and [the judge] would sustain it. I would hand up case law to support my arguments; the judge wouldn’t let me ask the questions I wanted to ask.
The Black male attorney would get up, ask the exact same questions, hand up the exact same cases that I had handed up, quoted from the case that I had handed up; and the judge would say, “You know, that’s a very good point. I didn’t think about that. Of course, continue that line of questioning.” (Author reacts) It got to the point where I was leaning over and asking him, “Can you ask about my client too? Can you ask this and this and this too?” Because I was like, this is ridiculous. Maybe if I were an older man, he would have treated me slightly different than that; but yeah, it was such a frustrating experience.
So I'm sure there's some of that that comes into play, but I think that was the most glaring.
Defender I've had judges, even recently in this virtual world, tell me I need to smile more.
Women amongst the Defenders particularly note how some of the male judges act inappropriately towards them. One Defender reveals: “I’ve had judges try to flirt with me, which was of course uncomfortable.” Another Defender recalls: “Well, that's a complicated question. I mean, I remember a judge making a pass at me at a party and then, when I didn't respond, started denying all my motions.” Adds another Defender: “Every so often, you may catch a roving eye. So you have to also be aware of [things] which the male attorneys just don’t [have to worry about. I have to think about] what I am wearing today and how it is also going to be perceived, because I want to be seen as an advocate. I don't want [judges] to be looking at how short my skirt is or how tight my blouse is, which some of them do.” One Defender spoke of a few “Black male judges who are lowkey perverted. If you wear a shirt that's a little too low, they’re looking at your breasts. If you wear a pants that's a little too tight, they’re looking at your ass.”
The second group consists of Defenders who were mistreated but are unable to pinpoint whether their mistreatment was race-based or gender-based. One Defender remarks: “I think it's pretty significant, although for me, it can be generally difficult to distinguish between when that kind of negative treatment or bias towards me is as a result of my gender or sex versus my race.” Another Defender agrees: “I think it plays a role. I’ve thought about pulling out my gender from my race and wondering, if I was a Black man, how would this be different for me? That's kind of hard, because I think [race and gender are] so intertwined. But I think people just generally think I'm not smart…. [T]hey think I’m dumb and don’t know what I’m talking about. They also think that I’m very emotional and get manipulated by clients when I'm making arguments. Until they see me a few times and get to know me, I definitely think that they thought all of those things and they literally aren't even listening to the words that I'm saying.” Adds another Defender: “Judges have treated me more poorly because I am a Black woman. More so than just a woman. It's a combination of the two. [And I respond in kind]. Initially, I used to dress more formerly; but later in my career, with certain judges, I said, no, no I'm not dressing formally for you, because I have no respect to you.”
One Defender shares this anecdote:
I have felt that sometimes, because I'm a female, I don't get the same respect that my male counterpart gets; and it could also be a race thing. Recently in a case that I had, the judge let the white ADA argue as to why he wanted to impose the jail alternative for my client. Then when I went to argue, he would stop me and wouldn't even let me finish. I don't know if that's a race thing or if that's a gender thing. He wound up remanding my client, although he didn't impose a jail alternative.
We came back [to court the next date], and when we came back, I put it on the record that I felt the way that he handled it last time—I don't know what his issue was—was not fair. [I said that] he allowed the ADA to speak, but he did not give me a chance to speak. He remanded my client without letting me have the chance to make an argument. And [the judge] was very defensive. He was just like, “That's not true. I let you speak. But I just felt that the stuff you were going to say, you had already said at the bench.” I'm like, “Okay, but you let him talk at the bench and then you still let him come on the record and speak on it. What was said at the bench was not recorded.” He turned to the ADA—he's the same person—and he asked him on the record, “Didn't I let Ms. [My Name] speak?” And even the ADA was just like, “Well, I don't think you did.” And [so the judge] afforded me the opportunity at that particular point in time. But in that moment when he did that, it made me so upset. I was with a social worker and she felt bad for me, too. I told my supervisor about it, and I honestly felt that it could have been a combination of both him being sexist and racist. He's a white judge.
The third group consists of Defenders who either do not notice sexist behavior or express less concern. When asked this question, one Defender replies: “I don't know…. There's one particular judge that I can think of who was screwy to everyone across the board. I don't know if the way he treated me was because of my gender or my race, but I know that he treats everyone equally sucky. For the judges that I appear before routinely that know me, they know my reputation and I generally have a better relationship with them.” Another Defender answers: “I’m sure it plays a role for some, but I never felt like it played a role with me.” Answers another Defender: “Maybe I'm oblivious because I'm a Black woman; I feel like if somebody doesn't like me, it's probably because I'm Black before [it is] because I'm a woman. I can honestly say I appear in front of these sexist judges and I don't get that from them. They're very respectful of me and of my opinion and of my abilities and things like that. So I don't know. I don't know….” Another Defender expresses the following:
I don't know because I never really paid attention to it. My focus was that I was a Black attorney. I'm not very popular for saying this with the feminists and the womanists; but that part of my makeup, me being a woman, wasn't something that I analyzed in my work as a lawyer as much as maybe in other parts of my life. Maybe that's because I represented so many men; and I’ve represented men who were accused of domestic violence a lot. Whether good or bad, I think that the part that stood out was me as a Black attorney, as opposed to me as a Black woman attorney. I'm not saying it wasn't there and it didn't influence it; I'm just saying that it wasn't something that I paid attention to.
I do remember though, when I was in [this particular borough], that there was an older white judge. We had a white woman in our office who had voluptuous boobs; and what we realized is when she went in there with a low-cut shirt and gave some sort of eye candy or whatever men call it, things went a little different. I know it's because she was a woman, but I don't know if I would've been able to pull the same thing off as a Black woman with this white judge. But I know that when she figured out she could use it, she used it. I don't know if that profited her in all areas, because then maybe at some point the judge just sees her as a bimbo with boobs; and then how does that affect the client?
For me personally—and maybe it's because for the last [few] years of my career, I appeared most of the time in front of a Black woman judge, so I don’t know—I just wasn’t focused enough on that….
Another Defender gives this answer:
I don’t know. I've had male judges be strange and familiar. [I’ve had male judges] say after I did a trial, “I could listen to the sound of your voice all day.” Or they will call me up to the bench to talk about personal things, to ask me questions that are completely unrelated to anything to do with the case. Why are you doing that? Would you have called up Mr. So-and-So to ask him these questions? I don't know. Maybe you would. So that's why I'm saying I really don't know. It’s hard to know what goes on in the minds of male judges or even female judges as it relates to me as a female attorney, you know what I mean? I don’t know….
Sometimes, the women amongst Defenders report having more problems with female judges than male judges. As one example, this Defender explains: “I don't think I've experienced [anything sexist] that's stuck out to me. I think with female judges, sometimes the way we talk to each other can get a bit catty…. I very much wear my heart on my sleeve; like, you can see my facial expressions. I don't really have much of a poker face…. If you say something [fresh] to me, I'm going to return something back, like, in my tone. And I think me being a woman has not been an issue; but my tone has been something that's been an issue with judges, mostly female judges. So I don't think I've experienced sexism with the judges particularly. I don't think they're checking for me. But I've seen it happen with other women.” Adds another Defender: “You have the white female judges—not white female, but you have… actually, yes, because we really don't have any Black female judges—then you have the white female judges who are almost—I won’t say intimidated—maybe jealous of the fact that you’re young, you’re cute, you’re attractive, and you get along with everybody. You can tell that there’s some kind of animosity, and you can’t understand for the life of you what their problem is….”
Has a judge ever mistaken you for a person who was not an attorney?
Of all players in the criminal judicial system, judges are not the ones most likely to confuse a Black attorney for a person who is not an attorney; that honor goes to court officers. In response to this question, one Defender responds: “No, I haven’t had that experience. With court officers, yes; but not judges.” Some Defenders similarly indicate that they had never been mistaken by judges for persons other than attorneys. When asked the question, one Defender states: “I don’t think so. Not by a judge, no.” States another Defender: “No, no. I always say I'm well-known enough that that has never happened to me, but there's always a first time, I guess.” Some of these Defenders note, however, that judges mistake them for other Black attorneys. One Defender states: “That has not happened to me. Shocking, right? I have been mistaken [for and] confused with other attorneys. There was this [judge] that kept confusing me with [another Black female attorney in my office]. I mean, it was just so out there that it was hilarious.” Adds another Defender: “No, not a judge; but someone else has. But I will say a judge has mistaken me for another Black attorney several times.”
Many Defenders, however, report being mistaken by judges as defendants. In response to this question, one Defender laughs hysterically and then says: “Next question. You already know the answer to that question.” Another Defender states: “I’ve been told by judges that I should not be sitting in the front row of the courtroom because the front row is for attorneys only.” Another Defender recalls: “A judge has, yes. [One time] when I first started the job, I stepped into the well with a client that was dressed in a suit, and the judge couldn't tell who was the attorney and who was the accused.” Adds another Defender: “Judges routinely mistake Black lawyers for defendants. This is a known fact. Due to where the ADAs stand/sit in the well of the court, it is harder for a judge who hears criminal cases to mistake a Black ADA for a defendant, but at defense counsel’s table, they will sometimes ask the Black attorney where their lawyer is.” One Defender recalls: “I had that happen to one of my colleagues, and then the judge blamed me for not telling her who the person was.” Another Defender remembers this incident: “One time, a case of mine is called on the record. I approach, and my client is still walking up the aisle. I'm wearing a suit, I have my file, and I put the file down. The judge looks up and says, ‘Where's your lawyer?’ And I'm like, ‘I am the attorney. My client is coming up the aisle.’” Another Defender shares this memory:
Once I was [entering the well to get my case called, and] my client had walked up before me. He was an older white man. He had a dress shirt on [and] some jeans; and as most defendants do, he just walked up to the table. He didn't actually move to the spot where our clients usually stand. I had asked my client, “Oh, Mr. Such-and-such, can you move down a little please?” And the judge said, “Miss, you need to get to the other side of the table!” My face was like, who are you talking to?! My client had to say, “Oh no, that's my lawyer. This is my lawyer. This is Ms. [My Name].” And the judge is beet red. And I said, “Thanks. [My Name], attorney for Mr. So-and-so.” I never say ‘attorney’ [when I appear on the record]; but I was like, oh, I have to say that now.
[The judge] apologized after, which I appreciate because he didn't have to do that. He could have just been like, whatever. But you have to think: those are the biases that are just out there all day, every day; and it's pretty disgusting….
The judge apologizing in the last anecdote is a rarity; judges that mistake Defenders for defendants rarely apologize. One Defender recalls: “One day I was walking into the back of the courtroom to go see one of my clients who they had just brought down because they were in custody. The court officers knew who I was, and so I'm walking into the back to go talk to him. The judge [bellowed], ‘Wait, wait, wait, wait, wait! Only attorneys are allowed back there.’ And the court officers were embarrassed for me, because they know I'm an attorney. One says, ‘Judge, she's a lawyer.’ And the judge said, ‘Oh, okay.’ No apologies, nothing. Just, ‘Oh, okay.’” Another Defender shares this incident: “A judge one time mistook me for the client. We were in Supreme Court. It wasn't a judge that I appeared in front of before. We were about to get started with a hearing and the judge, in directing the sergeant to have the parties enter the well—the area in the front of the courtroom where the proceedings take place—said to me, ‘Where is your attorney?’ I said, ‘Well, Your Honor, I am the attorney.’ Then I turned to my client. ‘This is my client.’ The judge said, ‘Okay, counsel, let’s proceed!’ No apologies or anything, because judges rarely apologize.”
Defenders also report being mistaken for other persons who are not attorneys, like probation officials and court interpreters. One Defender notes: “I've been the interpreter, I've been a social worker, I've been a family member. I've been clients. You name it; as long as it's not an attorney, I've been mistaken for that. The amount of times I've been asked to not come into the well, because only attorneys are allowed into the well; or I'd be in arraignments and they'd say, ‘Ma'am, family members aren't allowed to come into the well.’ … I've been a couple of different types of interpreters. I was a Spanish interpreter; I was a Haitian Creole interpreter. I think for them seeing Black faces in these spaces, we’re relegated to certain positions, none of which are attorneys.” Another Defender responds: “I've definitely been [mistaken for a representative from] Probation. I’ve been asked by judges if I'm from Probation, or if I'm one of the program coordinators.”
A couple other responses:
Defender Oh yeah. It happened when I went to Supreme Court for the first time. I was sitting there. I was the only one in the courtroom; I was there early. I had a file with me, and I was wearing a suit. I didn't sit in the front row; I sat in the row immediately behind because there were court officers sitting in the front row. So I sat behind them and was just sitting there. The judge came out and was talking, and then turns to me and asks, “What's your name and where is your attorney?” So I told him I am the attorney, and the court officer asked for my secure pass. I showed that to him, and all of a sudden I was now a lawyer.
Defender Judges don't see how racist and insulting it is [to be mistaken as something other than an attorney], right? Because we as Black attorneys, for the most part, know that we can't walk in there, like some of our white colleagues, in our summer dresses and our cocktail dresses that we kind of threw a cardigan over. We know we can't operate in those spaces. We come dressed to the nine to court. One, because we recognize the importance of how we present in these forums; but two, because of the importance of us being taken seriously in these spaces. But despite that, despite wearing your best suit decor every damn time, you can easily be mistaken for someone other than an attorney.
We have been remote [for a while], and this [happened with] a judge I've been in front of before. I actually put my name on the record. Yet, he asked my client where the attorney was. It was just weird, because I'm right there in front of him. Yet he’s asking, “Where's the attorney?” So that was a little strange to me. So that's the only kind of strange situation I had with this judge. I don't know where that came from.
Defender Probably more often than they would mistake me for an attorney…. [There were a number of times where] I would be supervising a student who was appearing on the record [and judges were] a lot of times confused [and thought] that the student was the supervisor, as opposed to me. And particularly if the student was a white male or even a white female, that happened quite a bit….
How do judges generally treat public defenders? Are they respectful? Are they considerate of the amount of work you have to do?
To varying degrees, the clear majority of Defenders think that judges generally treat public defenders with contempt and consider them less-than. One Defender states that judges treat public defenders “like second-class citizens.” Another Defender echoes similar language, stating that public defenders are treated “like second class citizens; like step cousins.” Another Defender remarks: “I think we're treated with a certain level of disrespect and mistrust, and [we have] a lack of credibility as though we don't have the same ethical standards as every other attorney in this country. I feel like there's a certain level of contempt that we're treated with that sort of normalizes as you continue to do the job.” Notes another Defender: “Oftentimes we’re maybe one step above our clients. A lot of times there is a lack of trust in us.”
Defenders note how judges tend to think that public defenders are scammers. One Defender observes: “Most of the time, it's like they think I'm trying to get over on them, or I'm doing some type of sneakiness.” Another Defender concurs: “There are some judges who always think you're trying to pull a fast one on them, trying to do something slightly unethical….” As such, many judges will not take a public defender at their word. One Defender gives this example: “When I've told judges that I'm in a particular courtroom or have had colleagues tell judges that I'm in a particular courtroom, I've had those judges call [those courtrooms and speak to the judge] to ensure that I'm actually telling the truth about where I am and what I'm doing.” Another Defender offers this anecdote:
I had a client who was supposed to be in court, but he said that he was out of the country dealing with the recent deaths of [a few family members.] He was speaking in Spanish at that time, and my Spanish wasn't as good as it is now, so there was a little bit that was lost in translation there; but I got the gist of it. I told the judge; I said, “Judge, I'm in contact with him, he's dealing with deaths in the family in his [home] country, and he's coming back. The judge said, “Well, there's an indictment and I wanna know if I can order a warrant because it's gonna go to Supreme Court.” I said, “Judge, you don't need to do that. He's coming, but he's literally dealing with the death [of family members. That] is a situation where you would stay a warrant, or excusing his appearance would be even better.” And the judge would hear none of it. He told me, “If you can get a death certificate in, then I'll expunge the warrant.”
And that's what I had to do. I provided three death certificates for his grandparents and his newborn child that he provided to me. I presented it up to the judge, and then it was, “Oh my God, I'm so sorry. Oh my this, oh my that.” (Author reacts) That's an extreme example; but nothing you say, no representation that you make, is beyond reproach for them unless you have some sort of proof to back it up….
Many Defenders note how judges treat them as expendable and interchangeable. One Defender explains: “They think you are just a body there to keep the line going. They have to get through a certain number of cases in a given day; and all they need is a body there to say the right words so they can move their day along. Whether it’s to adjourn the case or take a plea, whatever it is; they just want you to move it along.” Adds another Defender: “Oh, we're just placeholders. Anybody can come in and be the lawyer; just find a warm body to stand there next to the person so we can do what we want to do and move our cases along…. They sometimes have no regard for our individualism, or our time. They usually have no regard for us just in general.” Another Defender remarks: “It’s like we are interchangeable widgets….”
This juridical attitude is perhaps most evident when it comes to scheduling cases for future calendar calls. One Defender explains that “when you say you're not going to be [in court on a particular day] because you're on vacation, they just say, ‘Have a colleague cover it.’ Their attitude is, your client doesn't need you. You're not gonna be there. Whatever you can offer, this [other attorney] who has never met your client can just show up that day and represent them. There's no respect for the attorney-client relationship. Also, not to mention that if I'm not there, nothing's going to happen anyway.” One Defender notes the same issue with frustration: “I try to represent all my clients myself, so I don’t like to have someone else standing with my clients on my cases. Scheduling is hard because they really only look out for their own interests. They’ll be like, ‘We just need to get cases moving, so we have to adjourn this for two weeks.’ I’ll say, ‘I'm going to be on vacation,’ and they’re like, ‘Just have a colleague from your office cover it.’ And I’m like, ‘No! I want to cover this case!’ I see some of the opportunities afforded to 18B attorneys11 where they can just send an email that they are on trial or are unavailable. That's alright, the court will just adjourn it; but I try to do it and they’ll say to just have a colleague cover. No; I am a lawyer, and I want this privilege that you give lawyers.”
Defenders generally note that judges have little to no regard for the amount of work public defenders have. One Defender states: “They don’t care about your caseload. All they care about is moving their calendar. No, they absolutely don’t care and don’t want to care.” Another Defender chimes in: “Some are considerate of the amount of work we have to do; but for the most part, no. If a case is on trial and I just get assigned the case—like literally just get assigned the case—and I’m asking for an adjournment, I get attitude from the judge. So no, I do not think they have respect for the amount of work and things that we do.” Adds another Defender: “They definitely are not considerate of the kind of work we have to do. They, in a general sense, couldn’t care less. Even those who have been public defenders, it seems…. So they definitely don't care about the work we have to do, or whether we just got off a trial, or whether we just got transferred a case a week or two ago. They couldn’t care less.” Yet another Defender remarks: “[Judges are not considerate of the amount of work we have to do]. No, I'm expected to be in five places at one time.” Another Defender observes:
I don't think they understand. When a prosecutor gives you an offer on a case—remember, so many judges are former prosecutors—and you have to say, “Do you understand that I have to have a conversation with somebody where I'm asking them to plead guilty to a crime and go to prison? Like, do you really understand?” No, they don't. They have no idea what a conversation with another human being is like where you're telling that human, “You need to do this, and you need to go to prison.” And those prosecutors become judges who don't understand that. The judges will say, “This is a one-time offer.” We're not buying a car here, okay? Don't give me a one-time offer, especially if this one-time offer includes a person going to jail or prison. That's not humane. So I can't imagine that they understand what we do because of the way that they expect us to act and the way that they expect us to communicate with our clients.
Many Defenders point out how supremely annoying judges find it when public defenders fight for their clients and resist things the judges are trying to do. One Defender states: “I think that they're generally annoyed if you're a public defender that is attempting to fight or take the time to instruct or educate your client on the process that they're going through or that they're about to go through.” Another Defender provides more detail:
I think they view us as annoying. They just want to get in, convict your guy and get out. They hate things slowing down, and we appear as if we're the ones who always have to slow things down. Which is true; we have to slow it down. If they could, they would get every single trial done in a day. They would; they would try to do it. But that's not fair. That's not the way the system is supposed to work. So whenever we raise an objection, or we have to file a motion, or we have to make a long record about something, they get annoyed. You can see the annoyance on their face; they’re like, oh here we go again. Here he goes with another ridiculous argument. I think we just annoy them, because they have their minds made up already. They’ve made up their minds; we're just here as a formality, and that's it….
Police officers like to say, “We have a job to do.” Prosecutors like to say that they have a job to do, and that they’re just doing their job. So do we! But when we say that, people get mad; but we're doing our job. And the thing is, we're the only people in the courtroom that have a client. So we literally have to listen to our client as to what they want for certain aspects of their case, right? If we don't, we could literally have ethical complaints filed against us. We can even be suspended.
I remember there was a trial I did recently; it was a felony assault trial. I remember there was a printed report that had a certain term on it, something like “no hitters’ or some abbreviation that may have looked like “no injury,” like it may have said “NOINJ.” We didn't know what it meant, and the prosecutor didn't know what it meant. So we demanded that the prosecutor bring whoever typed this up into court as a witness, because I needed to ask them what that meant. Everyone acted like my request was ridiculous, and they were so pissed off. Yet for me, I’m like, if my client goes down and we didn’t investigate this and it turns out to have been in our favor, then I can have a complaint filed against me. But they don’t care; they just want to move on, and they get mad at us for raising issues.
A few Defenders report having more positive experiences. One Defender notes that judges were “mostly” considerate: “I mean, at the outset I think every judge is respectful to lawyers, generally speaking, because they're also lawyers. So I think that they're just going to have a respect for lawyers that many judges don't have for our clients. I mean, every judge is going to say that they respect our clients, but people will yell at our clients in a way that they don't yell at lawyers.” Another Defender states: “It's so diverse. It depends on the lawyer, depends on the judge, depends on if your client is acting up. It depends on a whole lot…. I think most judges I appear in front of, they're very fine with saying, ‘How much time do you need?’ and letting me pick dates…. So I feel like there's respect for the work that we put into our cases and things like that, if you do your work.”
Across the board, there is a recognition amongst Defenders that judges treat private attorneys far better than public defenders. One Defender observes: “They see us like DMV workers or social workers, just government workers that serve no benefit. Whatever relationship private counsel has with judges, there's something there politically. I'm not privy to it; but yeah, they get treated better.” Another Defender agrees: “Private attorneys definitely get more deference than we do…. Judges and private attorneys will have whole conversations on the record, and you’re waiting to get your case called. They'd be having lengthy conversations about kids, wife, and all of that.” Adds another Defender: “I've seen private attorneys that go right before me, and [the judges are] laughing and joking with them on the record and acting like they were out playing golf or something. They are having these conversations on the record; and then you get up there and you're getting shut down…. Private attorneys have [always] gotten greater respect than public defenders have gotten.” Says another Defender: “I think that their schedules are respected more. So if they are requesting some particular schedule or some particular date, they're more likely to get it than we are. If the case is on for hearing and trial, and it has been adjourned for hearings and trial for some time, and they request an adjournment, the judge might get mad at them a bit, but the judge will give them what they want. That doesn't really happen with public defenders; we'll get screamed at and then we'll still have to move forward.”
Some Defenders know that private lawyers are treated better based on personal experience. One Defender explained how s/he anecdotally “heard from colleagues who have gone from public defense work into private practice; and as soon as they make that shift, there's a different level of treatment even though literally two or three months ago, they were working for a public defense office.” Another Defender observes that the difference in treatment between private and public defenders is “like night and day different. And I know for a fact that's true because I used to be a private attorney. I used to walk into a courtroom as a private attorney and get my case called like that (snaps), because I was a private attorney…. We'll talk about families and things of that nature. A regular public defender is never going to be treated the same way as a private attorney. It’s just the way it is.”
Bad as it might be in the five boroughs, it’s even worse in places like Long Island. One Defender explains:
In Nassau County, the difference was stark. We literally had our own “separate but equal” [court] part, so there was a public defender part and a private attorney part. The good thing was I got to observe both parts when I would get a client returning on a warrant in the private attorney part. Then I saw, oh, this is how the other half lives. The deals they were getting were really, really different than what we were getting. [In the private attorney part, a client might get a violation for a case where, in the public defender part, the client would be offered nine months in jail]. And then clients would ask us, “Should I hire? Should I hire somebody?” And I hate to tell them that they should. But, you know, the truth is, unless you're fucking crazy, of course you hire. If you have any way to do that, you go ahead because you get treated very differently. I think in [Nassau County], it's a little bit more dependent on the private attorney. It’s not as prominent in New York City.
A few more responses:
Defender The amount of defense attorneys that allow judges to say [all kinds of wild things] at the bench, to make decisions at the bench to deny your applications before you even make arguments, and not put any of that on the record, [baffles me]. Like, judge, you just told me you're going to deny this application, and now you want me to make arguments so that you can put on record your decision which seems absolutely neutral, like you weighed all the evidence when you fucking didn't….
I personally put those conversations on the record. Judges don't love me for it, but it gets the job done. There was one particular judge who at a bench conference referred to the new bail statute as “stupid.” He said he wanted to get this case tried before January 1st, 2020, because he had no intention of releasing this woman; and then he told me he'll now hear my bail application. I'm like, judge, you just denied by bail application at the bench.
So when we were on the record, I said, “Let the record reflect you referred to the new bail statute as stupid.” … In the end, surprise, surprise: he was so taken back by the fact that I called him on his shit that he agreed to release our client…. Most judges hate doing bench conferences with me for that reason, but it is what it is.
Defender I had one judge almost force a colleague of mine to go to trial on my case. I was out of the office for medical reasons, so my client knew that we weren't going to be going to trial, and I arranged for coverage. My client was fine with delaying for a variety of reasons. She wasn't in any kind of urgent need to go to trial, and there were some very significant strategy decisions that we were making that would only make sense depending on when the case was tried…. I was definitely out for doctors’ appointments and then I had surgery, so I was out for a little bit.
This judge tried to make a coworker of mine, who literally just had a one-page memo saying what she should say to adjourn the case, start the trial. The judge tried to make them start, but my coworker stood up to the judge. Now this judge has been a problem judge; she was always mean to Black women attorneys in particular. So the judge tried to force my colleague to start, and my colleague wasn't starting. Then the judge started talking to my client directly, like “Are you fine with delaying this case?” and other questions like that. My client of course said she was fine with delaying.
The judge made my supervisor come down and tried to have my supervisor start the trial. And my supervisor knew what was up [and refused]. The supervisor asked for the date I requested so I could try it, and the judge refused to adjourn it for that date. After all of that, the case ultimately wound up dragging out for an additional three to four months after the date I had originally asked for.
Defender I didn’t find them to be super considerate…. I think the problem with judges is that once they have somebody under their jurisdiction, which is your client, they think they actually have everybody under their jurisdiction. So I found a lot of times, judges really seem to believe that they had my body under their jurisdiction. They would call each other; they would organize what courtrooms I would go in.
One time I was accused of bringing my client [who was in jail] a shirt when he was in the [holding cells] in the courthouse. My client was testifying in the grand jury the next day, and there was an accusation that I had brought him in a shirt instead of driving out to Rikers and bringing it to him. The corrections officer [accusing me] was this asshole, [a Black man], who was just this horrible person that didn't like me at all. This guy somehow organized with the judge to send me back into the pens and to lock me in there, to literally hold me inside. So I’m back there, and he’s asking me all these questions, and I'm screaming and yelling and demanding that they get my supervisor. But in this space, somehow a white judge and a Black officer felt like it was appropriate to conduct an arrest of my body. So I was sitting back there with my client in the pens for like 20 minutes. My supervisor came over, and the whole thing ultimately went away, because [it wasn’t true]. But this whole thing came from an assumption on everybody's part that they somehow had the right to detain me, which absolutely they did not….
I remember there was another Black attorney who saw it; and she said, “You need to talk to the NAACP. You need to do something about this; this is outrageous.” She had said this because someone had tried the same on her one time. Now, looking back, I wish I had; but back then, my thought was to just get out of that situation and move on. That was like an extreme example, but that stuff was happening all the time where they acted as though we were somehow under their jurisdiction. We found ourselves protecting our dignity all the time; and the challenge of that was that, on some level, they almost expected us to protect our dignity at the expense of our clients. We were supposed to protect our dignity by separating ourselves from our clients. I didn't want to separate myself from my client; I wanted to represent my client, to be close to my client and their alleged crimes, and to receive dignity and respect as a lawyer. That space was challenging; and so I would see some lawyers separate themselves from their clients and some other lawyers really merge with the clients.
Defender I'm really oblivious and I tend not to pay attention to people, because they don't do anything for me. They don't give me money. They don't make my life great. They don't make my life bad. I just refuse to acknowledge them. So judges don't have that much power over me. Sometimes I do get mad, obviously, if they do something that I feel is really wrong.
There are some judges that I don't like, and I'm trying to figure out why I don't like them. There's a judge who I'm pretty sure is a racist. I refuse to feed into him. I refuse to acknowledge him. You go into his courtroom with a case [that] is on for trial. He always [asks the prosecution if they are ready and if they are,] then he picks up his little phone to call the court part for trial while looking at the defense, waiting for the defense to say that they're not ready, so he could berate them. I would not say shit. If I was not ready, I would say it to the judge in the trial court part after we were just sent out, but I was not going to give him the power. I would not have him sit there and try to yell at me and berate me in front of my client and the rest of the audience….
On one case, I wrote a motion, a facial sufficiency motion,12 and [this other judge] denied it. I was like, “Well this was really correct, but okay. Whatever. Well, now I need a motion schedule.” And she's like, “You can't have a motion schedule. You're supposed to do that within 45 days.” I was like, well I did this one and I thought it was correct. And it's really facially insufficient, but you're dumb. So okay. And she was going back and forth with me, telling me I can't have a motion schedule. So I said, “Okay.” And she said, “You can't do motions!” I said, “Okay.” And I said, “I'll just need an adjourn date.” She kept saying, “You can't do motions!” I kept saying, “Okay, okay.” She finally adjourned the case and I walked out. A colleague who was in the courtroom said, “You're going to write that motion, aren’t you?” I said, “Damn right!” And I think by me saying, “OK,” she knew I was going do it.
Defender [Some judges] would inquire a little more about your vacation plans. “Do you have to go that week? Is there another week you could go?” There's a little pressure to have you move some stuff around. It wasn't just an easy “I'm on vacation”; sometimes an explanation had to go along with that.
Defender I think judges have a negative opinion of [public defenders]; but, across-the-board, all of the defense bar that [used to be public defenders] has a negative perception. Like everybody has this negative opinion of a public defender. So I think that walk is a little bit more difficult. And the only reason why it's not as bad as it felt for us is because it's just not as much work to do. I think during my time, we tried a lot of cases; and now I don't think that that's the case…. This is what annoys me about some of the judges: one of the reasons why my reputation is what it is now is because I'm not scared to try a case. I'm not scared to go to trial. I'm not scared to lose. And the same judge that respects me for that didn't try a motherfucking thing when they were in the mix. They ain't try shit as a prosecutor; and if they were on the public defense side, they ducked trials at every single turn. [So they’d yell at a trial attorney for not being ready for trial, and] I'm like, wait a minute. Why are you yelling at shorty for being you? (Author laughs) Like, it's ridiculous. It gets really funny.
Defender I don't think they give a damn [about how much work we have to do], to be quite frank. I've had one judge tell me as much without using those words; and he politely got a funky response from me, too. “So I want this [memorandum of law] by five o'clock today. And I'm gonna put on the record that you didn't respond and co-counsel did respond.” I said, “Okay.” “And I'm gonna make it known blah, blah, blah. And I've already started writing my decision.” “Okay.”
Then [the judge] called me back into the courtroom to tell me—and I was in arraignments, again—he called me back into the courtroom to tell me that he wanted my memo of law by five o'clock. At which point I told him, “That's nice; not going to happen. But okay.” He was like, “Why not?” I said, “As I told you this morning when I asked you for an extension, I am in arraignments; and we have X amount of people to be arraigned. I'm not getting out of here anytime soon, and certainly not before five o'clock. So there will be no filing on behalf of this client by five o'clock today. Are we finished?”
And that was that. When I finished [my memo when I was able], I filed it; and he had already made up his mind regarding the suppression issue anyway. But they try to bully you; and I just don't necessarily take kindly to being bullied.
Defender They are much more considerate of the time of private attorneys than public defenders. I remember this one time—it always stuck in my head—when a judge told a private attorney, “I know you're busy.” I was like, oh? you know they're busy? The attitude is as if we're not doing anything, which I thought was really ironic considering the fact that it's public knowledge that we have a large caseload. So I don't know what's going on there.
But, yes, they definitely treat us differently; and it is in every way, not just scheduling. They are generally better respected. They're given deference, even though—I guess the judges don't know this—they're stopping us in the hallway and saying, “You know, I've never done a criminal case before.”
Defender Sometimes private attorneys get to do stuff for their clients that we can't do, because their clients aren't poor people. So they'll get a better shake. I'll give an example: let’s take Harvey Weinstein. When his attorney put that article in the Newsweek magazine right before the verdict,13 I was like, are you kidding me? If my Black ass did that shit, which is clearly unethical and clearly over the line, I wouldn't be practicing anymore. But not the white chick; she’s good to go! (Author laughs) Fuck, like this ain't even kind of close to me. That was way over the line. You know, what the fuck? The jury needs to do what?! I was like, oh my God….
FN 11: 18B attorneys are private attorneys that represent indigent clients for an hourly fee paid by the state. This set of private attorneys belong to a panel called the 18B panel.
FN 12: A “facial sufficiency motion” is typically a motion filed in misdemeanor cases in which the defense requests that the judge dismiss a misdemeanor complaint in whole or in part because the whole complaint, or certain charges in the complaint, do not properly allege the commission of the crime or crimes of which the client was charged.
FN 13: Donna Rotunno, Jurors in My Client Harvey Weinstein’s Case Must Look Past the Headlines, Newsweek (Feb. 16, 2020, 5:42 PM), https://www.newsweek.com/jurors-my-client-harvey-weinsteins-case-must-look-past-headlines-opinion-1487564.
Are there any judges who treat white public defenders differently from how they treat Black defenders, including you?
Defenders have different responses to this question. Some Defenders report not feeling as if they are treated differently solely based on race. One Defender remarks: “I have no idea. I don't know that white or Black has anything to do with it. I think, just in general, if a judge has a disdain for public defenders, they might have a disdain for all public defenders. I would say that some of these white public defenders are so self-righteous that they get under judges' skins. There are crazy white people that say things that I would never say. So obviously a judge is going to respond to that antagonizing and disrespect in a way that I wouldn't experience, because I don't do that. Maybe that's also because I'm Black and I don't think I can do that.” Adds another Defender: “I won’t say that I think judges necessarily do that. I can say that I have observed a particular judge take exception to a Black attorney and not necessarily to a white one, but then I’ve also seen them just take exception to a particular Black attorney and not another Black attorney. So I don’t know that I could say that across the board.”
More Defenders, however, notice differences in how judges treat them in comparison to their white colleagues. One Defender answers: “Yes. It’s subtle things; they'll speak differently to [white public defenders]. They'll give them more leeway when it comes to certain things. They'll listen to their arguments a little bit more intently. They'll develop relationships with them.” Another Defender states: “I think that the way some white judges talk to white attorneys is more collegial, and the way they speak to Black attorneys is more dismissive. With some judges, it’s subtle; with others, not so much.” Another Defender says: “100% yes. I've seen my white male colleagues get away with all sorts of nonsense. Like on trial, jumping into the witness box during a closing statement and emulating the witness in front of the jury, where I know full well if I would attempt to get that close, court officers would’ve bum-rushed me....” Adds another Defender: “Oh yeah, for sure. For sure. I've had judges look to white public defenders in the audience to basically speak for me. Sometimes I've had judges assume that a white colleague in arraignments was my supervisor. So yeah, that’s a very easy question.”
Defenders particularly complain of not being given the same opportunities to advocate and be heard the way white colleagues are. One Defender states: “I've seen Black attorneys get shut down way quicker than white attorneys. Like I'm trying to make an argument, I'm trying to make a record, and the judge won't let me do it. The judge will keep yelling at me. Then there will be a white attorney that comes in and starts speaking over that same judge, speaking for an extended period of time, and it's just fine. Whereas me it's just like, ‘Okay, counsel, alright. I've heard enough.’” Another Defender concurs: “They do. [For example], in arraignments: sometimes it feels like I get talked over a lot, whereas my white colleagues don't…. I have definitely gotten talked over at arraignment; when I'm making my bail argument, the judge will cut me off and say things like, ‘This is not an issue here; we’re not addressing that right now.’ Then I will see white colleagues go up and take as long as they need, and they won’t get cut off.” Adds another Defender in agreement: “I would say that's even across the board, whether it's a Black judge or a white judge. Just across the board, I feel like white public defenders are given more leeway. They're just regarded differently….” One Defender offers a plausible explanation for the disparate treatment:
There are people that have certain conceptions of Black people or people of color, and society just needs to start recognizing it. It makes a lot of the white majority more comfortable to think of people of color as getting to where they got because of affirmative action or something like that; that makes them feel better about themselves. They fail to realize that affirmative action can only get you into school; it can't get you through school…. I am an affirmative action baby, but affirmative action only got me into school. I told you [about] some of the trials and tribulations I had being there. I had to be smart enough to get through it. And [white people] don't want to recognize that. They feel more comfortable thinking, oh, he's ignorant or she doesn't know what she's talking about. She's just there because of affirmative action. That's why she is where she is.
So [the attitude among judges is], I don't really have to deal with [this Black lawyer] as a viable attorney. Whereas with white attorneys, the thought is, they worked hard; they had that hard work ethic and they got through this, so I need to listen to them.
Other Defenders share personal anecdotes:
Defender I remember I was forced to go on trial, and I was feverish and sick and I said, “I have the flu and I need to go home.” And the judge forced me to do the trial anyway. So I'm feverish and delirious, on trial trying to fight for my client’s liberty. And I knew if I was a white man or a white woman, they would not have done me like that. They wouldn't have. To them, I was just a fucking mule.
Defender Yes, countless times. I can make one argument and have a judge soundly reject it. Then I’ll have my white co-counsel make the same argument and the judge will think it’s the smartest argument they’ve ever heard.
I had a case that I was litigating, where I was the only public defender and I had three co-defendants that were all 18-b appointed counsel. We were appealing a decision in the case, and I was the one who wrote the motion, made the argument, put all the work in. We get to the First Department Appellate Division and there were only two of us and the judge, and the judge turns to the private attorney—a white man—and says, “Mr. So-and-so, why don’t you start?” And the attorney said, “I think Ms. [My Name] should start because it's her motion, and I was only appointed to the case maybe a month or two ago. She’s much more familiar with the argument.” And I’m like, wow, this is so weird, for the judge to have assumed that it's the white man who's going to go even though he and I had already strategized that I was the one who was going to do the argument.
Defender Yes, yes, yes. A million times over. It's interesting to see because you'll have some of your white colleagues who fancy themselves allies, and they will point it out. There is this one judge whom I hate. I can't stand him with everything in my being. He's just an awful human being in terms of the way he treats our clients and the way he treats Black attorneys and attorneys of color…. There was a time when he was presiding in a misdemeanor courtroom, and he didn’t want people speaking in the front row. His courtroom [rules] didn't make any sense. The front row is reserved for attorneys. It's the reason why there's a separate front row: so that court officers know these are folks that are going to discuss their cases….
I and another Black woman attorney were discussing her client’s case. She was unsure as to whether or not the prosecutor was making her a good offer. I'm talking her through it. We're working on some of the details. We're using some hush tones because we are inside the courtroom. The judge decides he's fed up. He decided to kick us out of the courtroom, yelling “Get outta my courtroom!” We're looking around like, who is this man talking to? We didn't realize it was us until he had his court officers approach us to physically try to remove us from the courtroom.
Fast forward an hour later. In that same courtroom, there was a white colleague of mine who was talking in the courtroom. Anybody that knows [this attorney] knows he doesn't have an inside voice. The judge doesn't kick him out of the courtroom. He doesn't berate him the way he berated me and another Black woman. The judge said, “Come on guys. It's difficult for me to hear up here.” That was it. It was so clear. It was so obvious, the difference between the way I was treated and the way this white man was treated.
Defender [There is one particular judge that] I think hits the category of being nasty to Black people and nasty to women. I think he might be the number one offender in those categories…. [There was another judge who is] not there anymore. He was another one that was really strange with women, and maybe even worse with Black women. [This other judge] is nasty to women, but he doesn’t mess with Black women. (Author reacts) He’s like a little scared of Black women. He doesn’t mess with me at all. I can effectively put him in his place…. Someone should do some sort of a psychological study on that shit….
[This fourth judge] has his little fiefdom in Part 60, and he gets all of those really high-profile multi-defendant cases; and he has his little list of favorite ass-kissing 18B attorneys. Best believe there are no Black dudes on it; like, no Black people get any of those cases. Those high-money-paying cases, he does not give those to Black [lawyers]….
Defender [My white colleague] had done a trial in front of [this particular judge], and it was right around the same time that [this judge claimed that] these [particular] attorneys were “unruly”—her words—and then proceeded to list off pretty much every Black attorney in my year. And it's for doing just basic general shit like arguing on behalf of our clients. Yet [my white colleague] has a fucking long-ass back-and-forth with her during a trial. At the end of that trial, she says laughingly, “Oh, that Mr. [white colleague’s last name], he drives me coocoo bananas.” And it's like, what is the fucking difference between how he goes off and how I go off? It’s the same shit.
[This other white colleague] was also extremely aggressive in the courtroom. There are rumors of him just cussing out fucking prosecutors. He's out here doing all this shit. And he was great. I have a lot of respect for him. Great attorney. But it's wild that he can legit just curse out prosecutors. Yet I asked for a fucking different date from a judge and got forcibly removed from the well, because I'm like “Judge, rather than Friday, can we do Monday [since] the client has another case on Monday?” [The judge ordered me out of the well, and then the white sergeant] got in my face, hand on his gun, and screams for me to get out of the well a few different times….
Defender I’ve definitely experienced judges were I’d make an argument that gets denied. When a white colleague comes in and makes the same argument, the judge will say, “Oh yeah, that makes sense.” I’ve also [watched] judges be completely respectful of the schedule of white attorneys when they're trying to set something on a particular date and those attorneys say, “I'm not available that day.” I’d have the same white judges deal with some of my Black supervisees who were like, “Judge, I'm not available that day,” and those judges will say, “You're being unruly.”
Do judges treat prosecutors and defense attorneys the same?
An overwhelming majority of Defenders answer this question with a resounding “No.” One Defender remarks: “Judges tend to be third prosecutors.” Another Defender agrees: “I think, by and large, judges are more deferential to prosecutors.” Adds another Defender: “What prosecutors say is gold; it was written in the bible. What defense attorneys say needs to be triple checked and [come with] a notarized letter written about whether or not what they said was an actual factual statement, even though they're officers of the court as well. I think judges tend to take their cue about what's right and what's wrong from the prosecutors. They rarely credit defense attorneys, unless you're super deferential and, I guess, someone that they view as balanced and fair – meaning that you'll screw your client over to make the judge happy. Unless you're doing that, they think that you're just saying whatever you need to say or doing whatever you need to do to get your client out of jail….” One Defender sums it up succinctly: “They will try to bend themselves into a pretzel to side with the prosecution rather than do what’s obviously right.”
Part of the reason is because, as a number of Defenders note, many—if not the majority—of criminal law judges are former prosecutors. One Defender says: “Across judges, most judges—95% of judges—were prosecutors. Those are their colleagues. They treat them collegially. They treat defense attorneys like the adversary, like they're the defendants…. They treat [prosecutors] like their colleagues, because they more than likely were at some point. They defer to the prosecution all the time.” Another Defender concurs: “A lot of judges are former prosecutors, so they have that prosecutorial mindset…. And a lot of them have children that work for the DA's office. So sometimes their children appear in front of them. They would never [preside over] a trial of their daughter or their son; but during calendar appearances, [their children sometimes appear before them].”
One example of unequal treatment is with calendar calls of cases scheduled for trial. Despite the fact that prosecutors have a statutory obligation to be ready for trial within a specified time period,14 prosecutors routinely state “not ready” on cases scheduled for trial without issue; the case just gets adjourned for a new date. When public defenders state “not ready,” they catch hell for it. One Defender states: “I’ve had a case adjourned multiple times by the DA for lack of readiness in some form or fashion. Every excuse given has just been met with, ‘Ok, when do you think you’ll be ready?’ And the date selected is granted, and the date comes and goes, and it’s the same experience over and over. [One time] I asked for one thing, an adjournment after the People [i.e. the Prosecution] couldn’t be ready on the day we were there, because they were not ready, they didn’t have their witnesses. [The judge] tried to put it over for the next day, which I said I was not available for—it was too short notice, and I had childcare issues—and it got adjourned to that date anyway.” Adds another Defender: “Say, for instance, a prosecutor says that they're not ready [for trial] 10 times—‘Oh, it's the cops’ RDO (regular day off)’ or ‘I didn't have his schedule’ or ‘he was on vacation,’ and I'm like, you knew the cops’ schedule beforehand—they get no flack. If I say I'm not ready, [the judge flies down my throat]: ‘Why, Ms. [My Name]? Why are you not ready?!’ And I'm like, I'm sorry, wait. Looking at my file the past six times, they weren’t ready! And you know what? The prosecutor had the officers’ scheduled days off the last time they picked this adjournment date. And yet you were fine with giving them an accommodation. So why not me?”
Another example of unequal treatment is during trial itself. One Defender observes that judges “sometimes help [prosecutors] with their cases by fixing their questioning if they’re on trial and they keep getting objected to, and the judges have to keep sustaining [the defense’s objections]. Sometimes they'll pull up both sides [to the bench] and they'll tell the prosecutor how to formulate the question.” Another Defender remarks: “Most of the judges don't really step in to help defense attorneys in the same way that they do prosecutors, particularly at the level where we’re litigating things. The judges will always favor prosecutors.” Adds another Defender: “Public defenders will tell you of the many instances where we all have had judges insert arguments for prosecutors, make objections on their behalf, [and] provide the law for them when they are not necessarily knowledgeable of it as a way to help them make their case.” Another Defender shares this anecdote:
There was a trial that I did one time with a particular judge. This judge was Black, and he was obsessed with white women prosecutors. He felt like it was his duty to help them. So I had one of my first trials in front of him, and my client was 16 at the time the incident occurred. By the time we got to trial, she was 18. She was going to be deported and everything if we lost. It was myself and a Black colleague representing this girl.
So the trial was happening, and this judge did everything to coach this white prosecutor. He deferred to her on everything. He played prosecutor from the bench, asking questions that the prosecutor wasn’t asking. He made objections on behalf of the prosecution. When the trial finished and my client was acquitted, the judge was heated. He was so pissed and angry that my client won. He told the prosecutor to stay and that he was going to educate her on things that she should have done better in the trial. He had her bring all of her exhibits, and her interns carried them in the back so that he could teach her how to do it better.
And this happens. This is not a rare thing; this happens all the time.
Judges also routinely blame public defenders for anything and everything, even when prosecutors are at fault. One Defender explains: “Everything is a defense attorney’s fault. Nothing is the prosecutor’s fault, even when the prosecutor is doing incredibly unethical things or incredibly lazy things, or incredibly disrespectful things. It's always our fault.” Another Defender states: “[Judges] get mad at you for not doing the prosecutor's job, especially before the discovery rules. [Before the discovery rules,] they didn't have to give you anything. You didn't have to give them anything. They would keep stuff from you. If you did share something with them, they would try to use it against you or prep their witnesses to say things to get around it. So I [would] save evidence for the hearing or the trial. That's what the rules said I could do. We don't get anywhere when I voluntarily share my information. So I would share it when the [prosecutor] can't do anything about it; and then the judge is mad at me. Not mad at the officers that lied, but mad at me for not sharing.”
In some places, judges and prosecutors have relationships that are borderline to patently unprofessional. Sometimes the “place” is an entire borough. This Defender shares:
In Staten Island, sometimes I would go to the prosecutor's office and the judges would be in their office. (Author reacts) Yeah. I mean, they came from that office…. A bunch of them came from that office; and so those are their pals. There were no judges ever in our office, like ever, ever, ever…. One time I was talking to a prosecutor, and I was sitting in his office. I went to go look at a video or something; and he picks up his cell phone and he says, “Luigi, what the fuck?! Luigi, shut up, okay?” I’m like, okay.... It turns out he was talking to Judge Luigi Latay.15 So there's definitely a coziness, a familiarity; there are relationships with the prosecutors that did not exist with us at all. They were on first-name bases; they don't even hide it there. They don't even pretend. You'd see them going to lunch with the judges, getting the judges' cards at lunch time. I mean, it was ugh.
Sometimes the “place” is a particular courtroom. One Defender revealed the following about a particular court part in the Bronx:
There is [one particular judge] whose courtroom was literally a lounge for prosecutors. I mean, you could call it “ex parte conversations,” but they just spoke about cases openly. If you want to take a snapshot of inequality and inequities in the judicial system, [this judge’s] courtroom sums it up perfectly…. For the prosecutor’s Investigations Bureau, all their cases come to this one part, to this one judge. These same ADAs appear in front of him all the time. He calls bureau chiefs by their first names. They have ex parte conversations in front of defense attorneys sitting in the well waiting for their cases to be called. They'll conference a case in open court while you're waiting to do a case; and they’ll talk about a case without a defense attorney at the bench, or even in the courtroom….
Not all judges, however, are pro-prosecution; some judges hold prosecutors accountable, and in rare instances are biased against the prosecution. One Defender observes: “There are very few judges that actually treat prosecutors meanly. It's always great to watch, too. I’m like, Ha! He yelled at the prosecutor too! But that's very few.” Another Defender answers: “When I see a judge yell at a prosecutor for not doing what they’re supposed to do or not having the file or not knowing about their case or not having contact with their complainant, I can honestly say it makes me happy. There are plenty of judges that hold district attorneys to a high standard, just like they do with us. And I love it. Everyone should be held to a higher standard.” Another Defender states: “I've seen a couple judges who've actually treated defense attorneys better than ADAs. It varies. You have your judges that are fair to both sides, and they're going to follow the law. Then you have those [judges] who, if the ADA says that this is what they want, they're going to go with the ADA.” Adds another Defender: “Judges have a superiority complex, so I think [some of them will] treat prosecutors poorly at times as well….”
A few more responses:
Defender Hell no! Prosecutors can do absolutely no wrong. If a prosecutor's not ready for a case to be called, it's no big deal. No problem. If we sign up a case and something happens where we needed to have the case recalled, it's like the worst thing ever. All hell breaks loose…. A prosecutor can make a mistake or make an error, and it's okay. We can't….
I had a case conference with the judge, and the prosecutor just didn't show up. For like 15 minutes, 20 minutes, we're waiting for her, and she just doesn't show up. And then the judge says, “Well, I think we're just going to adjourn this then. Something must have happened.” If I did not show up, I would've gotten sanctioned. I can't just not show up. And the thing is, the prosecutor's the one who asked for that conference….
I could be in arraignments and, as an officer of the court, I'm telling the judge what happened. And yet the judge is just going to believe whatever the prosecutor says. The judge will say something like, “Well counsel, you weren't there.” The prosecutor wasn't there either! I'm getting firsthand information about what happened. My client's telling me directly what happened. With the prosecutor in court, there is a complainant talking to the police, who talks to a prosecutor who is in the Early Case Assessment Bureau (ECAB) writing the complaint, who talks to the prosecutor in the arraignment part. So that's gone through like three people, where I've heard from the horse's mouth. But what I say is bullshit and doesn't count for anything, but what they say is golden, and when they fuck up, it's no problem.
Defender I also have seen judges yell at public defenders more than I have seen them yell at prosecutors. They're not yelling to say, “Listen, this case is ridiculous. You should dismiss it.” The most they’ll ever say to a prosecutor is, “Get your supervisor down here.”
Defender No. I always felt that if the judge asks the prosecutor, “Are you ready [for trial]?” and they say, “No, I'm not ready,” and the judge says, “What's your reason?” and they’re like, “The cop is in the bathroom”—I don't know (author laughs), whatever reason—the [judge is fine with it]. We couldn't not be ready; maybe once you could not be ready. But after that, you couldn't get out of a case or postpone a case, especially if the People are ready…. They're accommodated, but we are not accommodated the same….
Defender No. I think the interesting thing about the relationship between the prosecutors and the judges is that if a prosecutor wants a judge gone, the [judge] disappears. The defense bar can't do that. Even though prosecutors, defenders and judges together make the system, the prosecutor and the judges are more of the government. What’s kind of weird about New York City is that we don’t have a [real] public defender system here. We have [non-profit organizations], which is very different; true public defender systems are part of the government, too. So it’s funny how people will say that we are just working with the prosecutor where we really are not; in other places, it definitely feels that way in a manner completely different than how it is here.
But yeah, it’s interesting how the prosecutor's office can do different things; and they can make a judge scared….
Defender Depending on the judge. It's my experience that some judges who were former prosecutors are still prosecutors, so they cater to the prosecutors. There are some judges who I particularly like that were prosecutors that ream prosecutors because they know that they're doing weird shit. They tend not to favor them because they’re doing wrong stuff. But they still help them. Although they berate them, they help them. They give them ideas. They guide them. With defense attorneys, however, it's not so sweet. They're not treated with the same courtesy.
[I did have one situation] I can think of as a young attorney where this judge took pity on me because she saw a lawyer who had no idea what she was doing in arraignments. I did something odd that I shouldn't have done; and she called me up to the bench and said, “We're not gonna do that, okay? We're gonna vacate that plea, and we're gonna bring the guy back.” I took a plea on something I shouldn't have, and she knew it. She knew, and she was a Black woman; and I felt like she kind of gave me an, “aye, girl, we're not gonna do that. We're gonna help you.” So she took it upon herself to help me.
[Generally though], I don't think I've ever got that same courtesy that ADAs get. [Prosecutors] get special treatment, like unbelievable treatment. Even when they do the most egregious things, they still get away scot-free. If a public defender did the exact same thing or something similar, our head is on a fucking spike. And I don't understand why it is that way. It's just what it is. It's the culture: the safe route to go is to be on the side of the prosecutor. It's safe to be there. So judges will treat them and help them in that way. And the same thing goes for judges who are former public defenders or [former] criminal defense attorneys. They're not giving preferential treatment to a defense attorney. They're just not. And a lot of times, they're WORSE than the former prosecutors.
Defender I don't think society treats public defenders and prosecutors the same. So, I would say no, they don't treat us the same. The underlying feeling for most people is that prosecutors and police are doing the job of upholding the law, whereas public defenders, we're just getting people out of jail who are guilty.
FN 14: See New York Criminal Procedure Law § 30.30. This is New York's speedy trial statute.
FN 15: Pseudonym
Do judges always follow the law? If not, do they generally follow the law? Why do you think they don’t always or generally follow the law?
A snapshot of brief Defender responses to the first question: “Absolutely not. Put that in all caps. ABSOLUTELY NOT!” “Umm…no (Laughter).” “Nope.” “No. I would say no, a hard no.” “Absolutely not.” “No, absolutely not.” “Hell no!” “Of course not.” “Absolutely not.” “No…. I think some judges have an idea of how they think a case should go, and they try to fit the law to work that way.” “No. Nope. Sometimes they so clearly will not follow the law that they will give kind of like a wink or a nod, like, yeah, I'll see this on appeal.” “So when we're saying ‘follow the law’, I'm thinking of motions that we write when we're CLEARLY right on the law; and they're not granting them. So when it comes to motions, they're very conservative on the law when it comes to the defense…. The only law they follow are the sentencing guidelines.”
There are more mixed answers to the second question. Some Defenders think—or hope—that judges generally followed the law. One Defender answers: “I would say they follow the law more than they don't follow the law, in my opinion. But there are a good number that do their own little thing, too. Sometimes that's good for us, and then sometimes it's not.” Another Defender states: “They generally follow the law, but they don’t strictly follow the law.” Another Defender shares similar sentiments, but also made an important point about the law: “The law actually allows for a lot more discretion and flexibility than a lot of people want to acknowledge. You can marshal a set of facts to support nearly any conclusion in many cases…. They probably think they follow the law, but the reality is the law can support a lot of different things.” Other Defenders note that judges generally seek to use the law to disadvantage their clients. One Defender thinks that “the majority of judges have made up their mind before either party has spoken. I think most of them read the complaint, they read the person’s rap sheet, and then they come to a conclusion.”
Defenders particularly note how judges refused to follow the new bail laws in the months after pretrial reforms (bail, discovery, and speedy trial) went into effect in January 2020. One Defender notes: “Especially after the bail reform and discovery reform came in, I saw that judges were trying to undercut it or make relevant portions inapplicable.” Another Defender elaborates further: “Then others will also figure out ways to undermine the law without violating it on its face. For example, with the bail laws: you know how it requires the judge to set three different forms of bail, with cash, bond and then partially unsecured bond? This one judge will set $10,000 cash, $10,000 bond and then $100,000 partially secured bond at 10%. So it nullifies the partially secured bond, because the point of partially secured bond is to make it more affordable than cash and regular bond; setting partially secured bond this way makes it as prohibitive as the other two more restrictive forms of bail.”
The reasons Defenders offer for why judges didn’t follow the law are varied, but ultimately relate to each other. A number of Defenders note that a lot of times, judges “don't even know what the law is.” One Defender explains that judges fail to follow the law “because they don't want to be on the front page of the New York Post as the judge who did this or the judge who did that.” Other Defenders attribute judicial refusal to follow the law to bias. One Defender states: “They want the client to be guilty. They want the client to be in jail. It’s emotional for them; they were prosecutors before then, and they’ve already decided that the client is guilty.” Adds another Defender: “I think it's bias, right? They're looking at our clients, and I don't think they're presuming that our clients are innocent. I don't care if we know that our clients are innocent; they are not presuming that our clients are innocent. So I think they justify it [by saying], well, I think this person did it, so it doesn't matter. Whatever. Let them go to trial or take a plea. … They're not going to lose sleep at night over not granting something for the defense. They're not going to go home and be like, oh, that poor client; that poor defendant; that poor Black man. They're not doing that.”
A few responses and anecdotes:
Defender I think one of the most frustrating things that is you could have 20 suppression hearings. And maybe out of—I'm just picking a random number—maybe out of those 20 they'll follow the law maybe once or twice. The rest of the time? ... I'm just thinking how many times I’ve had a suppression hearing where it’s like, oh this should be suppressed. We have [the law on our side]. It shouldn’t be coming in [as evidence at trial]. And then judges will bend over backwards to have some kind of creative interpretation of the law [to deny suppression and have the evidence come in anyway.] I think at the appellate level they will suppress; but still, that's always been one of the most disturbing aspects of practicing law in the courts.
There was a suppression hearing I did about 10 or 12 years ago in front of [a particular judge]. Some people liked him; I thought he was kind of stiff. But usually, he was at least intellectually honest in terms of the law. This was a case where my client clearly didn't consent to a search of his room…. We had really good facts on our side and the judge thought so as well, at least during the hearing. He was telling the prosecutor, “I think there are some problems here.” He was hinting that he would suppress and [encouraged the prosecutor to make my client a better offer]. Then six weeks later, we get the decision, and he denies suppression. And I'm like what? What the hell happened? In reading the decision, I saw that he contorted himself to avoid doing the right thing.
But that doesn't always happen. In one of the last suppression hearings I did, there was a judge who despised my client, but actually said that there was absolutely no way he could justify the police search of the vehicle. When he announced the decision, he started off by saying, “Unfortunately, and I do mean unfortunately,” before granting suppression.
Defender There’s this one judge—oh my gosh, it was so messed up—me and him do not get along. He knows I don’t like him. I had an undocumented client who took a plea [on a drunk driving case], and he was sentenced to a conditional discharge and treatment, among other conditions. It was a misdemeanor, so the conditional discharge period was only for a year. Now, he kept messing up treatment because he is an alcoholic. Like, that's what happens with treatment: you stumble, you fall. He is an alcoholic; of course he's going to mess up sometimes … but he was such a good guy. When I was calling the treatment people, they were just like, “Yeah, he's so great. He's just having a really hard time. We don't know how to help. We think we're going to give him a shot to stop him from drinking, like some kind of chemically assisted treatment, because it's just really hard for him. But he’s trying to take care of his kids.” And [the counselor] just loved and raved about him. And I'm telling all of this to the judge, and the judge just doesn't care.
My client was undocumented. So, I had him wait in the hallway [instead of coming into the courtroom, for fear that Immigration Customs and Enforcement (ICE) officers would pick him up if he entered the courtroom]. The judge is like, “Well, I'm not excusing his appearance, so he can either walk in here or I'll stay a warrant.” And I'm like, seriously, those are the options? If I say, “Stay a warrant,” then it appears as if he didn't come to court and is, therefore, a flight risk. If I have him come in here and he gets picked up by ICE for this stupid appearance, the consequences are going to be grave.
So, I chose to ask the judge to stay a warrant. And that came to bite me in the ass afterwards because another judge at a later court appearance said, “Oh, he doesn't come to court.” And I was trying to explain that he was in court, but this is why; and obviously that's not on the record, because the [conversation regarding my client’s immigration status happened at a] bench conference, because I didn't want all of the stuff about his immigration issues on the record. And it's also concerning that I'm telling the judge, as an officer of the court, that that is what happened, and the judge still just can't take my word for it.
So this second judge put him in jail…. So, then I said, “Alright, well, I'm requesting a hearing on that.” And then she got upset and she said, “Well, why didn't you tell me you were requesting a hearing until after I said I was putting him in?” And it's just, again, judges not knowing the law: You stupid idiot, it's because I'm not entitled to a hearing until you say you're putting him in! I didn’t mention it because you didn't fucking say it, so I wasn't entitled to it yet. And so she says, “Okay, I'll adjourn it till tomorrow.” So, she remanded my client and adjourned until the next day. I was off the next day; I was scheduled to be on vacation. Instead, I was going to have to come in and write a motion arguing that what she did was illegal. But it turned out the prosecutor found out what happened, and as soon as she got there, she said, “No, we gotta get this guy out. If he gets picked up by ICE for this, this is going to be ridiculous. We don't put people in jail for messing up treatment.” And the judge said, “Okay,” and let him out. When I made that same argument—that it was just treatment he messed up, that he paid the fine, did a mandatory class, did community service and everything else—no dice. The prosecutor says it, and the judge lets him out and sets a court date for him to return.
Anyhow, at this point, the conditional discharge period is over and the court didn't violate him. They didn't sign a declaration of delinquency saying that he was fucking up the terms of his conditional discharge. So when the one year is over, that's it. The court can't do anything to him. They don't have jurisdiction over him. If they wanted to keep jurisdiction, they should've violated him; and they didn't. So I filed the motion making this argument and now it's [in front of the first judge]. The judge looks at the motion, and his face was just like, fuck, she's right. So then he says, “Okay, I'm going to sign the declaration of delinquency retroactively to a date before the one year was up.” (Author reacts) And I said, “You can't do that!” And he was like, “Counsel, you can write a motion on the legality of what I just did.” I was like, are you fucking serious? And he issued a warrant because my client wasn't there. He asked the clerk, “Can I issue a warrant and set a motion schedule?” And the clerk said, “Yeah.” So he issued a warrant and set a motion schedule. Can you imagine if this client had gotten picked up on that warrant, when the court has no jurisdiction over him? But you decide to do whatever you want and you know that shit is illegal and you told me to write on it?! (Author reacts) The fucking balls on you! And he, like, smirked at me with it.
And then I remember I had come in front of him later for a different case, and he was just like, “[My Name], I’m fair, right? You know, we get along fairly well.” And I was like, whatever. And then he goes, “Oh, I mean, well, there was that one time.” And that's what he's talking about, that time when I was ready to blow my shit; because I was like, are you serious? He essentially said, “Yeah, I'm about to do this. I know you got me, but I'm about to do this. And you can just deal with it. You can write a motion on it…. So I wrote the motion, and then I got an email from a different judge who was assigned to the motion that said, “Okay so we're just going to grant your motion because the prosecutor sent an email saying, ‘Upon review, we agreed with defense counsel.’” So this client had a warrant out for him for this extended period of time … and honestly, if that client had gotten arrested on that warrant, I’d have been so pissed.
Defender No, no. I wish they did, or at the very least were better at hiding when they didn't. If I could go back in time and talk to the law school me, the one who slaved over memorizing all of these rules, I would just tap me on the shoulder and say, “Judges don't do this. Like, this desire you have of getting the formulation of the rule a hundred percent correct, 90% of judges don't care. The law is what they say it is at that moment. Then you have to go back to that judge and do a motion to re-argue when they got it wrong; and then they don't want to reverse themselves, even though they got it wrong.”
Defender Hell no! (Author laughs) Uh, no. I know a lot of it is subjective, but no. No, they don't. Just, no. I don't know what else to say to that, but no. You can tell that a decision is made before we even [begin the suppression hearing or argue a matter]. A decision is made from jump, and they just formulate what they need to support the decision that they want to reach in a lot of the cases. It's just ridiculous. It's like, what do they say: “You can find a statistic to kind of support anything.” They just want to deny your motion to suppress. They'll find a way to believe [our adversaries]. So, the answer is hell no. (Author laughs)
[They don’t generally follow the law either.] We have some [judges] that we like to get sent out to; we have a preference [for certain judges] because we're like, okay, at least I have a chance. That's a shame. It really is. We’re like, at least I have a chance that they might hear me and hear this legal issue; [we have a chance that] it might go our way. That is really a shame when you sit down and really think about it, that you have to judge-shop for a judge who would just listen to you on the merits of your case. That is ridiculous, but that is what it is. You have a handful, I would say, probably in each borough where you kind of cross your fingers [and hope for a good judge]. Especially when you have a real legal issue, like a real suppression issue in a gun case. You have to pray that you get sent to the right judge so we can have a chance, so our client can have a chance. It's just ridiculous. But that's the reality we live in right now.
Defender I think in cases where they don't follow the law, they don't follow it because they have some sort of investment in a particular outcome…. For instance, this is one of my earlier misdemeanor trials in Manhattan, a misdemeanor non-jury trial. My client was charged with exposing himself and masturbating in a bathroom in Times Square. [He was charged with] public lewdness. He was arrested by an undercover police officer who was part of a team that had the job of scoping out bathrooms and arresting people for public lewdness, because that's a priority in New York City. That's what our tax dollars pay for. The judge that we were before seemed to be so disgusted by the whole scenario. I think that I presented sufficient reasonable doubt as to my client's guilt. It was apparent that these officers had some sort of bias against homosexuals, and this was a men's bathroom; so these were men allegedly exposing themselves to each other and masturbating and whatever else. The questions that I asked of the police officers, I think, exposed huge gaps in the case.
Another attorney in the organization years later included that officer in an investigation of a number of officers that unjustly targeted individuals in bathrooms and made false arrests; and the officer responsible for my client’s arrest had a [disciplinary] record, I think the [longest] record of [the officers] in that group, and it was exposed a number of years later.
But at that trial, I think there was a sufficient showing of reasonable doubt. But I think that the judge was so disgusted by the prospect that this man would be exposing himself and manipulating himself in a public bathroom that he found him guilty and gave a whole speech about the fact that my client was lucky that all [the judge] would do in that situation was give him community service and probation….
[The judge] had to find that the elements of the charge were met by the prosecution. I don't think that they were, but the judge in his findings presented a sort of chain of arguments laying out how the prosecution met the elements of the charge. I think it was unfounded and I don't think that they did, but the judge just sort of comported the evidence to meet the elements and shifted it more to what he needed it to find my client guilty. And it was apparent to me that that's what the judge wanted to have happen, that he thought it was inappropriate that this kind of thing would happen in Port Authority, and that he wanted to make some sort of moral example out of my client….
Defender Of course not. They follow the law on cases that have no consequence. You can win a suppression hearing in Criminal Court much faster than you can win one in Supreme Court. You want to suppress marijuana? You might win that. You want to suppress a gun? Well, you’re not suppressing a gun…. My favorite is when they suppress things that don’t matter and won’t suppress something that matters. You might have a statement that they’ll suppress, but they won’t suppress the crack cocaine. So, no, they don’t follow the law because if they followed the law, maybe cops would behave better. Maybe the cops would follow the law if the judges followed the law. But because the judges don’t, the cops don’t either.
How do judges feel about your clients? Do they presume your clients to be guilty?
In the main, Defenders report that judges view clients negatively. One Defender states: “I think the majority of them find it distasteful to have to deal with the population that they're dealing with. I really feel that they do…. They don't ask questions of our clients, like ‘How are you doing? Are you feeling okay? Are they treating you okay?’ Most judges don't ask those questions because that would humanize the person that's standing next to the lawyer. They just deal with the lawyers.” Another Defender comments that “the vast majority of judges look down on them. They see them as criminals.” Adds another Defender: “I think a lot of them are afraid to really get to know our clients on a level that I think is important for them to know them as human beings. I think a lot of them are really afraid. I see many judges not even willing to look at the client. They can't even look at them more than five seconds. They're looking down or they're looking at the attorneys. They're looking everywhere but at the client. The only time they might look at the client is if they're going to order them to do something; but other than that, I haven't seen a whole lot of empathy from many of the judges that I've appeared in front of.” One Defender shares this anecdote:
I had one client who was beaten up severely—severely—by the police. I mean, oh my goodness, he got his ass beat. And this judge would not look at my client. He did not want to look at my client because he didn't want to see the damage that the officers had done to this young man, because he was going to set bail on my client. So it was easier for him to just look at his papers and just set bail without recognizing the human that was standing next to me….
Another Defender states: “They don't feel anything sometimes, I think. They just don't care. Again, it's just like numbers to them. They get a spreadsheet about how many cases they need to get through, how many are on the docket that day. Our clients are not people to them; they are just cases that the court needs to process. So, mostly I think it is neutral to borderline negative. In the same way, they don't think about the masses of Black and Brown people that don't live in their neighborhoods, that don't go to the same schools as their children, and that didn’t go to the same schools as them; they are not even thought about….”
Defenders are also in agreement that the presumption of innocence—the legal idea that a person is presumed innocent until proven guilty—is a myth. One Defender explains that “the presumption by the judges is if your client was arrested by the cops, they did what [the cops claim] they did….” Another Defender concurs: “Judges presume clients to be guilty, yes. For example, when a client gets a dismissal or an Adjournment in Contemplation of Dismissal (ACD), the first thing the judge will tell your client is to stay out of trouble. ‘This is your second chance at life. This is a renewed opportunity.’ There's an assumption that this person is guilty of something, if not guilty of the actual charge. If you look at the bail regime in this city, understanding that it's not supposed to be based on dangerousness, it should be based on people's ability to pay. We definitely haven't seen that. In fact, we’ll see all sorts of ways that judges express their opinion about a case through the bail that they set….” One Defender elaborates further:
[You see the presumption of guilt] in the way that the courts coerce pleas out of people, especially in arraignments or soon after their arraignment. The way that they don't really put any pressure on the prosecutor to look into anything or have any type of facts or anything like that. Oftentimes they're willing to go with whatever narrative the prosecutor says in arraignments. It's usually much later in the case where you see the case’s weaknesses that the prosecutor honestly starts to show their true hand, and that's when the judge might get a little bit more sympathetic; but oftentimes they assume guilt immediately.
I mean, you see it with bench trials, which are also known as “slow pleas.” Like, I had a bench trial where I had ample proof that my client wasn't involved, that my client was in a different location. I even had my client’s boss come and testify with his timecard. The judge still convicted my client of harassment. Now, what do you do with that? What do you do when you can show all manners of proof of someone's innocence and the assumption is so leaning towards conviction that it's honestly a waste of time?
Some judges express belief in the client’s guilt during bench conferences, which are off-the-record interactions between judges and the attorneys. One Defender states: “I could be in court and the judge would say at a bench conference: ‘Listen, [My Name], your client obviously did it.’” Another Defender shares: “Oh, I've heard judges say things like, ‘He clearly did this.’ They would never say this on the record; that's the thing. They will call us up to the bench and then make a comment like that. And I'm like, ‘Well, judge, these are still allegations,’ but they'll still say things like that…. That's the thing; those judges that hate our clients are smart about it. They're going to do it off the record and talk shit.” Another Defender speaks of his/her experience: “I was going to do a trial in front of [this particular judge] …. We go up to the bench and have a bench conference; and she's like—I forget her exact words—but she 100% called my client a menace to the Bronx because he [had an arrest record]. She just called him a menace to the Bronx; and it's like, based on what? It was based solely on the allegations in the case….”
Other judges communicate their belief in the client’s guilt more subtly. One Defender observes: “Yeah, they presume your client's guilty, in general. I think that's most evident when they continually tell you how good an offer is, when they say, ‘This is a good offer. They should plead guilty.’ There's this pressure to plead guilty….” Another Defender states: “[We see it where] judges ask, ‘Is your client gonna take a plea, [My Name]? Like, what are we doing here?’ And I say, ‘No, Your Honor, my client is not guilty.’ And then there's this whole sigh and an attitude that’s like, are we really gonna do this? It's really shocking. [The judge will say], ‘I mean, all right. I mean, your client's looking at 90 days. Is that what he wants? I'm offering him seven….’” Adds another Defender: “Of course judges presume clients to be guilty. Case in point: incarcerating them pending prosecution! They’re already saying that this person should be in jail for this [alleged offense], but he hasn’t been convicted of anything. I think that’s the most blatant thing. He hasn’t been convicted of any crime. Then the statements: ‘What will your client take?’ What are you talking about? ‘Why won’t he take this plea?’ Because he’s not guilty and he doesn’t want to plead guilty!”
Of course, not all judges are bad; a few of them, as one Defender states, “actually have a sense of humanity.” Another Defender notes: “I will say that [for] the ones who have shown empathy, it has been beautiful. There're a few who really care about clients, and many of them end up in specialty parts like Veterans’ Court or mental illness court or a youth part. [In those parts,] you'll see that those judges interact a little different with the clients.” Another Defender answers: “I don’t know…. I want to say they don’t [presume clients to be guilty]. They do extend the presumption; they do follow the presumption of innocence. I’m going to be fair and say they do. Now their rulings may say something else….” Adds another Defender: “I think that a lot of judges tend to be more sympathetic to the younger clients. They [generally] don't see 16 and 17-year-olds anymore; but even with the 18 and 19-year-olds, sometimes, under the circumstances, judges tend to give them more chances.”
Here are more responses and a few anecdotes:
Defender There was this one judge where, watching her, I found her to be entertaining. There was never a dull moment in her courtroom. One time there was a class of students who came in to observe court. She stepped off the bench and gave them a little lecture. And she said, “So cases were prosecuted and sometimes people are found not guilty because they found a way to beat the case.” One of our colleagues, who is now deceased, raised his hand and asked, “Hey, judge, are there times where there are people who are innocent? Are there times when the police wrongly obtained evidence?” And she just kept going on this theme of, “Well, they figured out a way to beat their case.” There was never the thought that there are people we represented who have truly been innocent of the crime.
Defender Yes, judges presume clients to be guilty. (Laughter) I'll give you an example. I tried a drunk driving case once, where my client was charged with drunk driving and with driving without a valid license. The prosecution had the arresting officer testify, and then they had the officer who administered the breathalyzer machine and the physical coordination tests testify as well. The arresting officer was lying through his teeth, just lying through his teeth. He testified, “Oh yeah, he ran two stop signs.” I said, “He only ran two? Well, what about the six other stop signs and the two stoplights that he had to pass before you stopped him?” He’s like, “Oh, I forgot about those.”
The IDTU technician, the officer who administered the breathalyzer machine and the physical coordination tests, he concluded that my client was not intoxicated, and he testified to that…. The jury convicted my client of driving with a suspended license, which was just a violation. They acquitted him of the drunk driving charges. Upon sentence, I asked for the minimum fine; but the judge didn’t like my client and sentenced him to a fine in the maximum amount. Afterwards I went up to the bench to speak with him, and he says, “I can't believe they didn’t believe the arresting officer.” In my head, I was like, bruh, were you watching the same trial? This dude was lying. The reason why they didn't believe him was because he lied the entire time! But that is who this judge wanted to believe, and it was because he wanted to think that my client was guilty. But everybody with an ear that sat and listened to this entire trial knew that [the arresting officer] was full of crap. So, absolutely yes, I do think that they presume them to be guilty.
Defender I also hear judges say when I’m on trial things like, “Well, I have to be fair to the prosecution and fair to the defense.” That idea is problematic, right? Like the reality is, you have to be fair to the defense, and that's all you have to be fair to. The prosecution doesn't have rights; the defendant has rights. Our clients have rights; people being prosecuted by the government have rights. The government is not entitled to fairness because the government has all this power. And yet there's this perception among judges like they are refereeing a sports game in the back door. In fact, they constantly use that exact analogy: “Oh, I'm just calling balls and strikes.”
Defender I remember one time—and it wasn't even a judge that was particularly unpleasant to deal with—where the prosecutor overstated [what she had] when she gave her rendition of what the case was. Of course, everything sounds bad when they talk about it. We were going to trial, and I remember before the trial started the judge took me in the back with his law secretary and the prosecutor and said, “He should really plead guilty. Are you sure he doesn't wanna plead guilty? They have three eye-witnesses. They have this, they have that, blah, blah, blah, blah.” I said, “No, we’re not pleading guilty. This kid is innocent.” And I'm not kidding you: it was clear he was innocent [after the first] two witnesses [testified].
Then the whole mood of the courtroom changed. It became clear that this was a bullshit case. The prosecutor had misrepresented [facts and] hadn't really talked to the witnesses. Three out of the four [witnesses who testified] did not identify my client in court….
So, to everyone it was clear. The judge thought my client was innocent. The clerk, the court reporter, everyone. It was just clear that my client was innocent. Then, at that point, we all started getting treated differently. At the point they decided he was innocent, then they started treating him and me differently. This just shows you how they treat people when they think they're guilty. And this wasn't even a bad courtroom. But the difference in what that belief in innocence makes in the courtroom experience and how they conduct the proceedings was like night and day.
[Of course,] he was found not guilty. He was found not guilty in like 10 minutes. So yeah, this is what it's like when they think you're guilty, and this is what it's like when they think you're not guilty.
Defender I think judges are conditioned, like most people, to think of everyone as guilty; and [they] think of the trial as the venue within which they may be proven innocent, even though that's not what the legal requirements are. I think so much of our society is dictated by our conditioning. And I think that judges are inclined to believe in the moral fiber of police officers and law enforcement officers. There's an ingrained, conditioned thinking that if someone was arrested for something, they probably did something wrong. Those questions that we use to interrogate that kind of internalized prejudice and predispositions in juries apply to judges as well….
Defender I do not think judges view our clients as human beings that have full lives the way they have full lives. Being late because you take your kid to school and don't have anyone else to take your kid to school [could get you] remanded…. In federal court, you see these white people who get convicted and they get told, “Okay, come back in three months to do your time.” Our clients, if they're going to prison after being found guilty at trial, don't get to stay out and tie up their affairs and come back, because [the thought is that] they don't have affairs. They don't have a job. They don't have an apartment. They don't have a dog they feed every day. They don't have children to say goodbye to them. Because they’re not people….
You tell a judge, “He has a job, judge.” And the judge sets $5,000 bail. Well, he has a job; you know how hard it is for somebody with no education to get a job? And you're going to send them to jail for some bullshit. Judges, for the most part, do not see the humanity of our clients. Nope. Not at all.
Defender [Some of the evidence of judges presuming clients guilty] is in the language [judges use]. “Well, even if he didn't do this, we still have to consider the safety of the community.” And I'm like, well, if he didn't do it, then there's no safety to consider. Because what you have is an innocent person…. So, I definitely think that there's language like that.
I know you're not talking about family court, but family court is very different in that perspective because [minor clients] are charged with allegedly committing crimes…. If you're an adult [in criminal court], it's a question of whether the charge is bail eligible or not; [and if so,] then how much bail and under what circumstances, if you're a [flight] risk, etc. That's not the way they look at it in family court. If you come through family court, it's not a question of whether it's bail eligible or not; it's a question of whether or not they think you're going to come back to court, whether or not they think you're going to re-offend. Those are scary propositions, because there's no bail [in family court]. If you go in, you go in until the judge changes their mind. (Author reacts) So there's a lot of negotiation [with] the prosecutors in family court, trying to convince them to not ask for a client to be put in, trying to make sure that they don't put any facts on the record that would make the judge want to remand our client…. So you hear the language that the court uses when the court is [remanding a minor client]: “Oh, I have some concerns about this family, about their ability to supervise this kid.” And I'm like, well, if he didn't do this, then there's not an issue with supervision. If he didn't do this, it's not an issue with whether or not he's going to go out and commit a crime.
But that's the language they use.
Defender Judges hate them. They detest them. They truly do. And I know that by their actions. I know that by their assumptions. They view their job as to put [our clients] in jail. I don't think they view their job as [the] arbitrators of conflict between two sides. They view their job as to put [our clients] in jail, unless I can convince them otherwise. I think they view their job as putting our clients in jail; and they feel like they're doing you a personal favor if they don’t put the client in jail….
Do judges treat clients differently based on their race, gender or appearance/dress?
Race Defenders see clear differences in judicial treatment of their clients based on race. One Defender remarks: “I had a colleague when I first started [practicing] who said, ‘The best thing you could do for your client is to make them white.’” Another Defender notes: “You get a Black guy dressed in a suit and a white guy dressed in a suit, and the way the judge treats them is like night and day.” Another Defender states: “There is this idea that Blackness equals criminality where you see sentences going up and see this lack of interest by the court. Then there's a white client that comes through arraignments and, all of a sudden, the judge wakes up; or there's somebody who is well put together and the judge wakes up.” Adds another Defender: “I think that automatically, white judges treat white clients as the exception and are more inclined to be lenient with them…. I think even Black and Brown judges are inclined to be more lenient with white clients, which is a result of deep conditioning. I think our universal conditioning tells us that Black and Brown people are more inclined to commit crimes, even though that is not true, and I think judges—Black, Brown, white, or otherwise—expect Black clients in front of them.”
Here are a few anecdotes and examples:
Defender I remember one arraignment [shift] that I was working late with this particular judge. There were two guys, both arrested for driving while intoxicated (DWI). The first was a Black guy we arraigned at 12 midnight. The judge sets bail at $1000. Generally, I've never seen bail set on a first DWI arrest with no car accident. The judge calls me up to the bench and says, “Oh, you must not know about me. Whenever someone comes in front of me with DWI, I set bail.” He said this off the record. And then I tell the other guy, who’s a white guy arrested in a BMW, that the judge will probably set bail on him. He was like 18, 19. I arraigned his case at 12:30 a.m. and the judge says on the record: “Generally, on these cases I set bail, but I don’t think you will make it in the place I will send you, so I’m going to release you on your own recognizance (ROR).” I thought to myself, so, my other client could make it? Or did he deserve to be there? And this judge did not think there was anything wrong with what he said.
Defender I remember one white client was somehow given a DAT for a domestic violence case. This was in the 2000s before that was even happening. I don't know how she got that.
Defender Hell yes. I remember one night I had two domestic violence cases—and you know misdemeanor domestic violence cases are oftentimes BS, not BS in the sense that there are probably issues in that relationship, but most of the time the type of ideas that people have of domestic violence is not happening in these cases, right? So I had a client who had a misdemeanor DV case and then another client, a white client, who had a criminal contempt charge. It was a felony-level criminal contempt charge. So my client with the misdemeanor DV case was given a full order of protection. My client with the criminal contempt case, his partner showed up; and I had to tell her to step out because her face was broken—like, he beat the shit out of her. And they had a criminal contempt charge already because he had been convicted for DV assault against her in the past. And the judge still gave him a limited order of protection. And I'm an advocate, I'm a good advocate; but I can tell you for damn sure if he was Black, there was no way in hell he’d get a limited order of protection. He would’ve been going to Rikers if he was Black. This [white] man was released with a limited order of protection on a felony contempt.
Defender I remember distinctly having had a young white female client charged with stealing some sunglasses at one of those terminal shops at the airport or something. Of course, she got her Adjournment in Contemplation of Dismissal (ACD) with two days of community service. The judge said to her at the time of sentencing: “Listen, I hope I never see you here again. You know you don't belong here. You seem like a nice girl; you don’t belong here.” I was like, wow. This judge literally said that on the record. “You know you don't belong here.” Basically, he was saying that he expects better from her and she doesn’t belong here with these Black folks.
Defender I remember I would at least a few times a year have a young minority woman have to bring her child to court because she couldn't get childcare, and the judge would just ream her out. I had one client who didn't miss any court appearances, but the judge threatened to put her in if she brought her child again. The judge claimed, “You're bringing your child as a way to stop me from putting you in.” And I’m like, no! She's bringing her child because she's coming to court and there's nowhere else she can place her child for the moment. And also, why are you going to put her in? We haven't missed a court date! There’s no reason for that! But that type of thing happens, and the judge is thinking that it's disrespectful to bring a child in [to court]. The few times I've represented young white women who brought their children to court, we did not have that conversation.
Also, the clients of mine who had their licenses suspended for [failure to pay] child support would always get a talk about their “obligations” and the need to take care of their children. So first, the judge is assuming that this young man didn't know of his obligations, and second, the judge is assuming that by being behind in child support meant he wasn't taking care of his child at all. So there's a lot of things wrapped up in there, but you would only see it with my Black clients. I represented a white guy whose license was suspended for the same reason in front of the same judge. That conversation did not happen.
Defender Oh, I have so many white clients where these judges [bend] over backwards and jump through hoops to let them out, like the most heroin-addicted looking white people, no teeth, warrants up the wazoo, cases in different boroughs. Judges would release them; and I’m like, Really? This guy you’re releasing? Then my first-arrest [Black kid they won’t release.] And I've seen it, and I take note of who I'm in front of because I know the judges that do it. It pisses me off.
I don't necessarily think Hispanics fare any better than Black people in the system, unless maybe they're like a really white Hispanic, like fair-skinned or whatever. Latinos don't get a better shake, I don’t think. But these white heroin addicts and crackheads get released and released and ROR’d and are allowed to vacate warrant after warrant without bail being set. And I'm just like, and you tell me this is a fair system. Not like I want my clients to be in jail, my white clients; but I'm just taking note of who's getting out and who's not. Hell yeah, there's a difference.
Defender [I had a colleague who] did a trial with a white client. They got sent out [to a trial part to do the trial], and the client is probably in the bathroom or something like that. The judge sees the file and then tries to pressure the defense attorneys to force their client to take a plea. Then the client shows up and goes into the courtroom. At that point, the judge realizes, oh shit, this is a white client. The judge then says to the prosecutor, “Well, I don't see a world in which you all are able to prove your case. You all should make a better offer.” (Author reacts)
I think that is one of the more blatant ones; but you do catch sort of the subtle privilege when you have a white client.
Defender One of the first questions [I get from judges] when I have a Caucasian client is, “Will your client be hiring?” No matter how they're dressed, that’s the question I get. So, there's already that sort of perception. And when those clients have conflicts in terms of work or childcare or some of those other life issues, it's less of a fight for me to get them the adjourn date that they want versus a Black or Latino client. It is just less of a fight because there's a presumption that this client has a certain type of job that might be considered more important than another type of job.
Sometimes it can impact dispositions. [Judges will have us] come up to the bench and say, “Let's discuss this.” While judges are bound by the law, and they don't have as much power as sometimes I wish they did, [I’ll see them] asking the district attorney what they can do. “What can we do about disposing this case? What can we do about a non-criminal disposition with this case?” Granted, the proportion of my clients who are Caucasian or perceived to be Caucasian is obviously much smaller than the proportion of my clients that are Latino, perceived to be Latino, African American, Black, or perceived to be African American or Black. But [judges] will a little bit more often have those conversations about white clients of, “Well, what can we do here? What can we do about this case?”
Defender Oh yeah. If my client is white, for instance, there is a difference in how they do the allocution for orders of protection…. I had a white judge say to [my] Black client, “Oh, if your baby mama calls you, don't [answer]. Don't go to her house. If it's in the same housing project, don't [go there].” Whereas, if it's a white client or a white-adjacent client, [that judge] would basically be like, “Don't go to her workplace. If you see her at a restaurant, don't go there. If you see her at the gym….” And I’m like, oh, so this white person, I guess, has a different kind of lifestyle; like, they're not just in their housing projects with their baby mama. It was very strange; and I remember my supervisor in that shift also brought it up, because it just kept happening repeatedly.
Gender Most Defenders are in agreement that male defendants are treated more harshly than female defendants. One Defender states: “I would say sometimes they tend to be maybe a little more lenient to the females than the males.” Another Defender concurs: “I think females get a little more sympathy, from both judges and the system in general.” Adds another Defender: “I think female clients tend to get treated a little bit better in the judicial system, especially white females. I think Black females get treated a little bit differently, but white females definitely get treated a lot better than Black females.” Another Defender remarks: “I think they're easier on the women. Definitely. Let a lady be pregnant and crying. (Laughter) That shit works. It does. If a man's crying, oh please: shut up, dry them up and keep it moving. Like it doesn't work. And it might just be that he's a sensitive guy; but it's frowned upon.” Yet another Defender agrees: “I do think that you can get better deals for female clients than you can for male clients who may have done the same things. I mean, you take what you can get as a defense attorney, and sometimes you exploit that, right? Because you do what you can for your client, but you see it and you’re like, ok, I see.”
Not all Defenders see a difference, however. One Defender answers: “Not really; as long as they are poor, they all get the same treatment.” Another Defender concurs: “I would say in my experience, or what has [been] computed in my brain, I think the short answer would be that I have not experienced that. To my knowledge, I have not experienced that.” In response to whether judges treated clients differently based on gender, one Defender replies: “Absolutely not.” Another Defender offers this response: “I didn't have a lot of female clients when I [practiced;] and the ones that I did have, they tended to be pretty bad cases. So, I don't know if the judges treated them differently because of the kind of case it was. I'm just thinking of one [client] that comes to mind; [she had six separate arson charges]. And she had a record out of state for two prior arsons where she spent seven years in prison. So, there was no conversation to be had there. Then I had one where she shot someone; it was her abuser. But those were the kinds of cases; so, it's hard to say if [their treatment] was because they were female or if it was because of the nature of the cases.”
Additional responses:
Defender That's an interesting question. I would say for the most part female defendants are treated a little better than male defendants; but female defendants of color…. You know, I gotta just say this: women of color historically have not been treated well in this society. There's this feeling that they can take—in general, that people of color can take—more than white people. They can take more pain, they can take more suffering, they can take more abuse; and it's kind of borne out in the court system because they're going to try to get a white female client out if at all possible. I mean, it is so rare for a white female to be kept in jail on bail. That is a rarity. Whereas a woman of color [being kept in jail on bail is] routine. It's routine. But I will say they're treated a little bit better than their male counterparts.
Defender I mean, it's fair in some ways to say that maybe more women end up in the criminal justice system because they've been victimized; but I think the problem with that is Black men are not looked at as victims enough. So, when you can never look at a Black man as someone who can be hurt, who could have feelings and not know how to express them in a proper way, and then be sensitive to that, that is problematic, right? They are treated more harshly in that way.
Defender Yeah. [This one judge] is pretty famous for that. There's a running joke that if you have a female client, go to trial with [this judge]. That's in the domestic violence (“DV”) context. For the most part, the judge will just presume that if your client is a man, he is the abuser; if the client is a woman, the woman is being abused and did something to try to protect herself.
Defender I think so. I think when I have a female client, they're a bit more lenient. But also, it depends; see, I can't just say male or female. I think it depends on if it's a nice looking female. They're not going to necessarily treat my female client who is experiencing withdrawals from heroin or something, they're not going to treat her nice. But if I have a nice-looking DWI or [second-degree] assault client—like she got into it with her boyfriend or something-- they're gonna be a little more respectful and lenient towards that type of female. Whereas I think most of my male clients, [the attitude is], whatever; you're guilty.
Dress Finally, Defenders generally notice a difference in judicial treatment of clients based on their dress. One Defender comments that seeing this difference is “why I advise my clients to dress up if they can.” Another Defender advises her clients similarly: “I used to tell all my young clients to wear a tie. ‘This judge, she loves her a tie. You will get a better offer if you wear a tie.’” Another Defender remarks: “I definitely advise a lot of my clients to dress up in their Sunday clothes for court because it makes a big difference. Also, if they come in [to court], if they happen to work, and they have on a uniform for work, that also helps.” Adds another Defender: “I tell my clients, especially come trials or whatever, to come like they’re going to church; come like they’re going to a wedding. Some can dress nice…. Wardrobe matters [to the judge]. It matters to me, too. I'm like, ‘Look like you care about where you're going and [what you look like.’] And I've had people change…. I try and give some guidance to my clients, especially when we're doing litigation.”
Defenders report how judges react to clients' dress. Judges will reprimand clients for dressing “inappropriately.” One Defender notes: “I’ve had several judges tell my clients to put on a button-up shirt, to not wear t-shirts, to not wear shorts. I’ve had a judge refuse to allow a female client into court because her shorts were too short.” Another Defender remarks: “I've had clients that came in with their pants [sagging] and the judge would say something like, ‘Pull your pants up.’ Judges would reprimand them…. If the client has, like, a certain rhetoric on their shirt or something like that, the judge would get upset about it. I remember one of my colleagues [who had a client wearing a shirt with writing on it, and] the judge made the client turn the shirt inside out because it had, like, curse words on it or whatever.” On the flip side, judges will compliment people who dress up for court. One Defender states: “I've had judges regularly make comments along the vein of, ‘Thank you, Mr. So-And-So for showing up to court in a suit and tie. It shows you're taking this case seriously.’” Another Defender sounds off on these kinds of comments: “It is so condescending; I just can't stand it. They’d say, ‘Thank you so much for dressing up and taking this process seriously.’ Who told you they don't take it seriously because they're not wearing that suit? Clients see it for what it is; it is so condescending when judges do that. I hate that.”
Granted, as one Defender notes, clients can be wild sometimes: “Like we're here on a marijuana sale case, and [a client will] come to court [wearing a shirt with a marijuana leaf on it]. I had a client accused of stealing a particular designer item, and he came to trial dressed in that designer.” Another Defender tells this story: “I had one situation where I had a client come to court, and he was wearing a Pirates of the Caribbean t-shirt. The shirt had on it a skull and all this stuff. And the judge asked us to approach and asked, ‘What exactly is on his shirt?’ And I answered, ‘Oh, that's Pirates of the Caribbean. It's a movie.’ The judge said, ‘Oh, okay. That's okay. I just wanted to make sure, because I saw the skull.’ I thought to myself, that was perhaps not the best choice.” Aside from those situations, one Defender asserts, “If my client can only afford a white t-shirt and jeans, he shouldn't be treated less than my client who can afford a nice dress.”
A few more responses:
Defender I have had a judge compliment my client for coming to court dressed in a shirt and tie. And then I’ve also had another judge scream at a client for dressing better than he did. (Author reacts) Yeah, crazy. Mind you, this is a judge that has signs in his courtroom saying that if you don't have on a shirt and pants, your case will not be called. So, I'm just like, OK, so he has on a suit, and you got mad at him. Okay…
Defender Yes. I think the clients who are dressed better are obviously [respected] more. Judges will take the time to address them and may look up from their podium and see that they’re a person.
I've had clients who've come in with shorts and [far less formal attire]. Like, I had a female, a nonwhite client, come in with shorts and a little bit of a belly shirt; but, I mean, it's summer in the Bronx. It’s hot. But the judge yelled, “You can't come in here dressed like that! You're supposed to be….” And I was just like, where in the court rule book does it say that you actually have to wear something that the court wants you to wear? I said, “Judge, this is simply an adjournment. I don't think my clients’ clothing has anything to do with this.” And it kind of turned into this weird back and forth; and I said, “I don't understand why you think that's a thing.”
Even now—like, it's so funny—I was watching virtual court today, waiting on my case to be called; and somebody—a client—was driving down the street [while in] virtual court. The judge said, “You need to pull over; you cannot be on virtual court driving, sir!” And I thought, why not though? I understand; but it's an overreach. It becomes this paternalistic situation if you think people aren't dressed the way that you want them to be dressed.
People assume that if you come into the criminal justice system, you already know how the criminal justice system works; and that's just not true. Sometimes people have never been arrested before; and they don't know what they're supposed to wear, don't know where they're supposed to be. They see people walking in, wearing all types of different clothes. They don't understand that there's [a particular attire that is preferred]; maybe they never had a job interview or some sort of a professional job. Maybe they don't have clothes to wear or are not able to wear what it is that you're assuming that they have.
I think that [judges] definitely judge people just off how they look and whatever they're wearing. They want people to be dressed a certain type of way. They expect a certain level of respect in the courtroom, but don't give that to people. They don't say to people, “The next time you come to court—like I understand that you came to court like this today, but this is a courthouse, and we dress a certain type of way—[you cannot wear what you have on].” Even though that's paternalistic, there's a way of having those conversations with people to maybe help them understand what's going on. But it shouldn't change the way that you treat them, and it shouldn't change the favors or the offers that you're giving them. But it does seem to, unfortunately.
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