I have stressed the importance of bail because it not only means whether a person is jailed but also because it can affect the outcome of the case. This is not merely my belief; studies have come to the same conclusion. I have also stressed that attorneys can affect the setting of bail in a fair court setting, and again, studies have come to the same conclusion. It came as a surprise to me, then, that in some jurisdictions where I worked and many others, lawyers are not appointed until after the bail decision. This is just wrong. It is also wastes public resources. Research has shown that when lawyers represent defendants at the initial bail setting, more are released without the skip rate increasing. That means fewer jailed people, and less cost to the taxpayers.

Bail-setting also varies around the country not only in whether an attorney represents the accused, but also in how defendants are brought before the court. In New York, the arrestee is escorted before the bench with handcuffs on, but most judges would order the restraints removed for the court session. In other places, however, the defendants are brought before the court in chains. You have seen what I mean in the movies. There is a chain around the waist, handcuffs are chained to that chain, a further chain drops from the waist down the front to the ankles, where it is chained to ankle chains. Those ankles chains prevent the person from taking a full step, and the chainee can move only by shuffling. And often each defendant is chained to another chained person, so a line of arrested people must shuffle together into court. I have felt revulsion each time I have seen this common sight. Of course, all those chain gang movies come back, but worse, thoughts of what that old plantation life was really like floated about. As far as I know, New York City had no more security problems using lesser restraints. The real purpose of the chains, I always thought, was dehumanization, but then, much of our criminal justice is about dehumanization, and the system is very good at that.

That initial court appearance, arraignments, I thought, might be akin to working in an emergency room. There was constant activity with many people trying to get my attention and time. Those in the cells could be demanding, “When are you going to be talking to me?” Cops out front could be doing something similar. They could not leave until the arraignment occurred and that depended on me. And the arrestee’s family members frequently insisted I do something immediately.

Triage was constant. A prisoner might be in agony from drug withdrawal. (This is, to put it mildly, not a pleasant sight. I tend not to watch movie portrayals of drug withdrawals because they bring back memories I wish I could let go of.) Methadone could help the person, but methadone was not given in the precinct or the courthouse’s holding facilities. The medicine would only first be available in the detention facilities after arraignment. When someone was withdrawing, I tried to get that person before the judge as quickly as possible.

As the session’s end neared, especially when it was a night session and the next arraignments would not be for another nine or ten hours, I would give priority to those who I expected would be released when arraigned. If someone was going to be held over to the next session, better it be someone who was likely to be detained than one who was going to be released. This prioritization was logical but presented a quandary. The cases where the arrested person was likely to be released were the easier ones to defend and giving priority to them meant I would be pushing the harder cases off to colleagues at the next session.

The depth of the quandary depended on the system of representation the Legal Aid Society was using. When I started, LAS employed “horizontal” representation. I would only represent someone at arraignment. On the adjourned date, another set of attorneys would be in the courtroom where the case had been sent, and they would represent the defendant. And so on. A different attorney would represent someone at each stage of the proceeding. If there was a logic in this, it was that the attorneys were experts in the stage of a case where they were working.

Soon, however, we shifted to “vertical” representation. That meant anyone I represented at arraignment I continued to represent at all stages of the proceeding until the case concluded. If I pushed a hard case off until the next arraignment session, I would have an easier caseload, but, of course, I was assuring someone else a harder caseload. Besides that moral quandary, while I thought most of my colleagues were good attorneys, I had my doubts about a few, and I was sometimes concerned about how well a defendant would be represented if he drew one of the weaker attorneys at the next session.

The differing pressures got resolved when I was assigned to be part of a team that handled “major offenses.” I was to represent those charged with most serious offenses, both at arraignments and then on.

 Two arraignment sessions a day were held, the first from nine in the morning until five in the afternoon. The evening session was scheduled from six until one the next morning. These evenings were often physically demanding. An attorney might have tried to take the day off before the evening session or take off the day after the evening session, but many times I started the day in the morning and did my regular work and then went on to night arraignments. I was young and dedicated but working a sixteen-hour day was still rough. I often found it even harder working the next day after night arraignments. Of course, there was not time for a regular night’s sleep, but to make it worse, I found that the grind of the night arraignments along with the emotions the work evoked often made it difficult to go home and fall asleep. This was intensified by the fact that while New York might be the city that never sleeps, it was always bleak around the courthouses at one in the morning with little signs of any normal life. It was often scary going home and I could feel as if I were trapped in a real-life film noir.

 The two arraignment sessions operated 365 days a year.  This, of course, meant Saturdays and Sundays, but also every holiday. We all had to take our share of this weekend and holiday work, and the attorneys would try to accommodate each other. The Jewish attorneys would work Christmas and Easter, while the non-Jewish attorneys would be scheduled for the Jewish holidays. (None of my colleagues then were Muslim or Hindu.) If I were scheduled for a Saturday or Sunday arraignment, but something came up that made that day difficult for me, I would ask around and almost always could find somebody who would swap days with me.

 Because often there was no choice, arraignments taught me that I could deliver bad news. Within twenty-four hours of the arrest, many defendants and family members were still living in a dream world. Many hoped or even expected that the defendant would be going home shortly and would never have to go to prison when I knew that was not going to happen. Perhaps I could have just have the court dash those initial expectations and let them fantasize up until the moment bail was set. I learned that was a mistake. I had to be honest with my client if I was going to have his respect and trust. Defendants usually took the bad news stoically. Perhaps that is because a lot of the conversation in the holding cells among the detainees was about what was going to happen to them, and most often what was said among them was realistic about future prospects.

Not always so with families, especially when the family had no experience in the criminal justice system. Giving them hard news was often emotionally draining. An example, even though something like this was repeated many times: The seventeen-year-old accused was charged with an armed robbery. A victim was shot. The accused was caught by patrolling police as he tried to escape. He still had the gun in his possession as well as a victim’s purse. The defendant had a few minor prior offenses. He had been released at arraignments each time and had not gone to jail for the offenses. I had already told the defendant that he was not going home that night and, frankly, that if I could work out a plea deal where he would go home fifteen years from now, it would be a great deal. (I admit that I might have overstated what I thought might be the ultimate outcome. I might have thought that fifteen was an unlikely worst-case scenario and the more likely outcome would be a five or seven years sentence, but I learned it was good early on to have the defendant thinking worst case so that if I obtained a good plea offer later, he would realize that he should take the deal.)

 I went out to talk to the family. Two people were there. His mother, who was surely not yet forty, and his girlfriend, who was fifteen and looked to be eight months pregnant. (I met many thirty-eight-year-old grandmothers in my work.) The girlfriend said again and again, “You gotta get my man out tonight!” The mother was quiet. I explained the charges and the evidence I had been told about. I told them that the maximum sentence was twenty-five years. The girlfriend almost yelled, “You gotta get my man out tonight!” I calmly said that with the nature of the charges and the judge who was sitting, he was not coming home tonight and probably not for maybe another fifteen years. Both mother and girlfriend became hysterical in the courthouse halls. Of course, there was nothing I could do to make it better.  Sometimes the job was very hard.

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