After interviewing my new client in the holding cells behind the arraignment courtroom (also, revealingly, called the pens), I headed to the audience section of the courtroom. When there was a break in the action up front, I would ask if there was anyone there for the interviewed defendant. If there was, I would motion them out to the corridor where I would ask who they were and seek more basic information about the defendant. I might have a ballpark idea of the bail that would be set, and I would inquire about the ability of those present to post it. This could be important for getting the defendant out of jail that day. Perhaps the judge was about to set bail at $2,500 (more on bail-setting later), but the relatives had told me that they had brought $2,000 to court. I would give the judge that information, and the judge might then lower bail to $2,000. In addition, often those who came to court had information about the charged crime. Many of the crimes were neighborhood affairs and had been witnessed by relatives or friends of the defendant, or the relatives or friends had been told about the crime from others. This information could be useful in the plea bargaining and the bail-setting that might take place or in a subsequent investigation.
After talking with any people who were in court on the defendant’s behalf, I would go back to the courtroom, and ask the audience whether the complaining witness was there. If so, I would ask to talk with the person in the corridor. I would tell the complainant that I was the attorney for the defendant and tell them they did not have to talk with me but that I would appreciate it if they would. Perhaps under the impression that if they talked with me it would speed up the process, most were willing to speak. I would ask them to describe the crime to me.
After talking with the complainant, I went to talk to the arresting officer. The police did not have to talk with me either but were usually eager to do so because they knew that I could delay the calling of the case in court and, thus, extend the officer’s day. (A case would go before the judge after I indicated that I was ready for the case to be called.) I never delayed a case to try to get the complainant to talk, but cops, who almost never liked being in court, were generally eager to go home or back to duty. Sometimes there had been enough repeat business between me or my colleagues and a particular cop that opinions about the officer had developed. Most of the police were professional in dealing with defense attorneys, but a few were known as nasty, untrustworthy, or liars, and yes, sometimes I delayed the calling of the case if it would irritate such a cop or if he would not talk with me.
After all these interviews, I would indicate to the court officers that the case was ready to be called. When it was announced, court officers would lead the defendant from the holding cell into the courtroom. In New York, the defendant was generally only handcuffed, and the cuffs were removed when he was brought before the judge. In other cities, defendants are brought into court with belly chains and leg shackles that are not removed. I still find this a sickening sight, and I always think of engravings of slavery. I am sure that the places that use chains and shackles cite safety as their reason for the practice, but New York, with its more civilized practice has no more violent incidents than these other places.
Once the case was called, I would stand in front of the judge. I would state my name as representing the defendant and spell it for the court reporter, although that reporter already knew it from other appearances. I was then asked by the presiding court officer whether I waived the reading of the rights and charges. One of the formal reasons for an arraignment is to inform the defendant of the charges against him and various rights granted him, such as the right to a jury trial and the right to cross-examine witnesses. I would have gone over this stuff with the client while he was in the holding cell, and I would waive this part of the formal process in court, as did all other attorneys. Going over again what attorneys should have already explained needlessly delayed the proceedings and would have, at a minimum, irked the judge and court officers making unnecessary enemies.
One of the rights granted a defendant is his right to an attorney. If he could afford an attorney, he would have to retain one. In many places, judges really make the determination whether the accused is indigent and enitled to appointed counsel, but this was not case in New York City when I did public defender work. Instead, there was a working assumption that the Legal Aid Society would be representing a defendant unless the Legal Aid lawyer had determined that the client was getting a private attorney or had the resources to do so. Even if the defendant was going to retain an attorney, the practice was that the Society would represent the accused at the arraignment.
When there were multiple defendants in the case—a common situation—the public defender would represent them all at the arraignment, but each defendant would be entitled to a separate appointed counsel after that initial court appearance. In these situations, the Legal Aid attorney would say who she would represent after arraignments and ask the court to appoint counsel for the other defendants. The Appellate Division, an intermediate appellate court in New York, compiled a list of private attorneys who were certified to be appointed in criminal cases. These attorneys would be appointed for the other defendants for future court appearances. The Legal Aid attorney would get to choose which defendant would remain the Society’s client. My selection of a client was often random, but sometimes my choice was affected by an instant like or dislike of an accused. Sometimes, however, it was clear that defendants were likely to have differing criminal liabilities. Many Legal Aid attorneys would choose the defendant with the least likelihood of a long sentence because it would be easier to represent that person. I probably did that some of the time. But I had found the lawyers on the Appellate Division list to be of mixed competence. The quality of the attorney would not matter much to the defendants who were going to be easy to represent, and since I thought I was as good as any of those attorneys and better than most, I generally selected the defendant who appeared to be hardest to defend.
(Concluded March 11)