“Yes’m, Judge. You can count on me, swear to God.” Money raised his right hand as an oath of reassurance.
“No need, no need,” said the Judge. “Just be sure you stay in that apartment and make arrangements for your grandmother from there.”
“I will, I will, Your Honor.”
“You stay in the courtroom until Ms. Trainor verifies what you have told me about your situation. Then you’ll go with the Marshal so he can process you, and then you’ll be released—if what you said was true.” The Marshal moved next to Money and nodded toward a door on the side of the courtroom. Money nodded and walked ahead of the Marshal. “God bless you, Judge,” he said over his shoulder toward the bench.
The Judge hesitated, glancing at Money silently until he left the Courtroom. “Next, we have Mr. Hardie.” said the Judge. “United States versus Hardie,” she said to the stenographer for the Record. “I see, Mr. Luca, that you are representing Mr. Hardie for the purpose of sentence.”
“Yes, Your Honor.”
“Mr. Dineen, do you, on behalf of the Government wish to be heard?”
“No, Your Honor.”
“Very well, Mr. Luca, let me do what I did in Mr. Dozier’s case, which is to save the Court and everyone else some time. I have many other matters on today. According to the P.S.R., Mr. Hardie is in the same offense category as Mr. Dozier; that is, thirty-four. However, I realize that Mr. Hardie has made steps toward rehabilitating himself over the last several years, and has been extraordinarily generous and giving to his community, providing people in need with breakfast programs, medical programs, scholarship programs—you see, Mr. Hardie, I do read the reports carefully, and I think that your life in the last several years has been exemplary. You have been convicted, of course, but I am not unmindful of your activities. As a result, I am not going to give Mr. Hardie a two-point enhancement for more than minimum planning. Nor, do I intend to give him two points for being an organizer or leader. In fact, I am going to give him a two point downward adjustment for minor participation, which brings him down to a level thirty-two.”
Everyone in the courtroom, except for Dineen and Geraghty, was astounded by what they were hearing. Courthouse cognoscenti had been speculating as to just how high the Judge would ratchet up Hardie’s sentence.
Red half-turned toward Sandro. “This is a set up,” he whispered.
“Mr. Hardie, do you want a moment to confer with Mr. Luca?”
“Yes, Ma’am, I would.”
“They’re setting me up,” Hardie repeated softly in Sandro’s ear. “The Judge is in on it. They’re trying to make me look like a rat.”
“Something is up, that’s for sure. I haven’t said a word, and she’s peeling the points off.”
“The Government wants it to look like I’m getting a light sentence because I’m cooperating,” said Red.
“There’s no way I can complain that the Judge should put the points back onto your offense level.”
“Look at Dineen, he’s not the slightest bit surprised or angry. They’re boxing me in.”
Sandro, glancing toward the Prosecution table, saw both Dineen and Geraghty gazing straight ahead, quietly, calmly.
“As I’ve said, I have a great many matters on before me this morning,” said the Judge. “As a result, I must move along. Level thirty-two calls for one hundred twenty one months to one-hundred-fifty-one months. I am, as with Mr. Dozier, going to err on the side of lenity and give Mr. Hardie one hundred and twenty-one months in the custody of the Attorney General. As there is a ten year mandatory minimum for Mr. Hardie’s crime, this is the lowest sentence allowed by law, followed by a special supervision period of five years, and a fine of one hundred thousand—no make that seventy five-thousand dollars. Advise Mr. Hardie of his right to appeal.”
“Your Honor,” said Sandro, “I have already advised my client of his right to appeal. I also have a Notice of Appeal which I would like the record to show, I am serving on the Government.”
“I acknowledge that, Your Honor,” said Dineen, rising, taking legal papers from Sandro.
“Would Your Honor consider bail pending appeal in Mr. Hardie’s case?”
“Oh, no, no indeed. Mr. Hardie has already been remanded. May I see Counsel at the side-bar for a moment?” the Judge said, moving to the side of the bench. Both Dineen and Sandro approached the bench. “As I’m sure you have been informed, Mr. Luca, and please inform Mr. Hardie, that he has been remanded for his own safety, and I am going to continue that status. Not even two or three weeks. As I understand it, it is much too dangerous for Mr. Hardie to be let out of the custody of the Attorney General.”
“Mr. Hardie does not need—does not want—protection, or anything to that effect, Your Honor,” said Sandro. “This is all a ruse—”
“Step back”, said the Judge. Dineen and Sandro resumed their places at Counsel table.
“That is the sentence of this Court”, said the Judge. “Marshal.”
Red sighed and shook his head. “I’ve been fucked,” he said softly to Sandro as the Marshal directed Red to the door on the side of the courtroom.
Riker’s Island : July 26, 1996 : 2:50 P.M.
Sandro was seated in the Visiting Room on the 12th floor Bridge of the Criminal Courts Building, waiting for the Department of Correction to deliver Hettie Rouse for a Counsel visit. As he sat, watching all the activity, listening to the cacophony of voices in the long main artery that fed defendants to the courtrooms of the Supreme Court on the 11th and 13th floors, Sandro was reminded of something from Philosophy 101; the only constant in life is change; indeed, the only way to gauge life is to detect change. Nowhere was this basic truth better honored than in prison. The last time Sandro had been in the visiting area, it was one very large cell with approximately twenty small, yellow or orange Formica topped desks spotted around a converted, large holding cell where attorneys and clients could confer. Since then, steel and mesh partitions had been installed, segregating the defendants in two outer corridors which paralleled the outer walls of the cell, while the lawyers sat on chairs in the center core, facing their clients through the steel.
Some distressed prisoner must have attacked his Legal Aid Lawyer to bring about this change, thought Sandro. Since most of the detainees were represented by appointed lawyers, either Legal Aid or private lawyers paid by the State under County Law 18-B, a common grouse was that the defendants were being supplied broken down hacks instead of competent lawyers. Freud was right, thought Sandro; since the detainees didn’t pay their own money for the lawyers, they didn’t value or appreciate them. As a result, the detainees often disparaged the only persons attempting to help them, sometimes to the point of violence.
Changes in the prison routine were also necessitated by the fertile minds of the detainees. Technically, not having been convicted, the inmates were not prisoners, but detainees—although, regardless of nomenclature, being locked away was being locked away, whatever word was used. Nevertheless, detainees, unlike prisoners, could not be assigned work projects, lest some civil libertarian bring suit on the basis that the State was forcing detainees, citizens merely accused of crime, as slave laborers. Thus, with so much idle time on their hands, the detainees formulated all sorts of schemes, plans, intrigues to use against the system or other prisoners in order, first, for the perverse fun of it, to cause the system problems; second, to escape. This eternal us-against-them dynamic, required the Correction Department to constantly change the prison routines, lest the prisoners clock the rhythm and use that rhythm for escape or adventure.
As he waited, Sandro’s thoughts ranged back to Hettie Rouse and her arraignment in front of Judge Rothwax. It had proceeded, pretty much, as Sandro had expected. When Hettie entered the courtroom, Ruben Alvarado, her former boyfriend, now co-defendant, and, if Quintalian were telling the truth, antagonist, was already standing at the Defense table with Sol Walter Cohen. Alvarado was short and thin, with a large slash scar on the left side of his face that
coursed from his temple to the point of chin. Hettie’s presence energized the members of the media seated in the first row of the Courtroom. Reporters leaned forward. Sketch artists with single barrel monocular lenses, permitted to sit in the front row of the jury box, began sketching.
There was a special squad of Court Officers, which, when assembled, looked like the short yardage defense line of the Chicago Bears, but with gun belts and handcuffs. Ordinarily, these Officers were separately assigned to various courtrooms in the building. However, when there was, or when it was anticipated that there might be, trouble or a potential disturbance, these large, beefy men, would receive an alert from the Major in charge of the Court Officers. Four of these beeves had been placed shoulder-to-shoulder just behind frail Hettie and an almost equally emaciated Ruben Alvarado during the arraignment, in front of the waist-high wooden railing, in order to separate them from the audience. Such precautions seemed ludicrous, seeing the size of the defendants. Actually, trouble hadn’t been anticipated from the Defendants; rather, it was to forestall some emotionally aroused or mentally disturbed spectator who might have come to avenge the abused, innocent child, to register a protest against violence with knife in hand.
There had been no disturbance, however. Hettie stood quietly next to Sandro, looking straight ahead, calm, cool, unmoved by any of the activity around her. She said only two words: ‘Not Guilty’. The same for Alvarado. The rest of what had occurred relative to the Defendants was between the Judge, A.D.A. Quintalian, Sir Walter Cohen, and Sandro Luca. During the entire proceeding, Hettie stood or sat with exactly the same expression and attitude of body: unmoved and unmoving, staring blankly ahead.
Although Sandro hadn’t asked for it, Judge Rothwax, in an excess of caution, anticipating difficulties that might be lurking behind such a hideous crime and the placid, unaffected accused, and to avoid delays arising later, ordered a 730 Examination for Hettie.
Pursuant to Article 730 of New York’s Criminal Procedure Law, the Court can order a psychiatric examination of an accused person anytime the Judge is of the opinion that the defendant might be mentally unfit to stand trial. Fitness for trial did not equate to being able to perform reasonably and rationally as a member of society in real life; rather, it meant only that Li’l Bit had to have the capacity to understand the proceedings against her, and had to be able to assist in her own defense. In practical terms, lack of fitness for trial had to border on the bizarre in order for the judge to make note of it. Most of the time, the extent of a preliminary mental examination to determine fitness would be no more than a judge’s observation of the defendant as he or she stood at counsel table, interacting with their Counsel, a mere ‘he or she looks all right to me’ layman’s determination. When a court did order an examination, despite the fact that a great many of the defendants, if they lived next door to you, would cause you to board up your windows or run screaming to the nearest precinct for protection, the vast majority were pronounced fit by the court, and proceeded to trial.
Hettie’s next court appearance was scheduled a week from today. Quintalian had already provided Sandro with the minimum legally required Discovery. Although Quntalian was a nice guy, in the main, prosecutors were not necessarily interested in providing criminals with a level playing field or with information with which to erect a formidable defense to a case that same D.A. had to prosecute. As ninety percent of the judges were former prosecutors, their mindset didn’t stir them to provide any more than the bare minimum of Discovery, lest the inmates take over the whole institution.
Sandro now had thirty days to make any motions he thought necessary to protect Li’l Bit’s rights. The D.A. had two weeks to answer Sandro’s papers. Sandro then had approximately another week to respond to the D.A.’s arguments. Then, the Judge would make a decision on the motions. According to that statutory time table, motion practice would take almost two months. Despite this, in the State courts, imprisoned defendants would be scheduled to appear, for some mindless reason, approximately every two weeks, with the case being adjourned on each occasion because motions were pending. In the Federal system, after a case began, a trial date was set for some time in the future, and in-between, all preliminary motions—not hearings—and other steps to prepare for trial, didn’t require the presence of the defendants. There wasn’t the same compulsion in the Federal system to see the defendant’s face on a bi-weekly basis.
Sandro had developed a theory as to why the State detainees were brought to court so often and needlessly. He opined that there was actually a twenty percent overcrowding condition in the City’s Correction system, but by having approximately twenty percent of the detained population on buses at all times, overcrowding riots were avoided. Perhaps, in addition, some genius had determined that the occasional bus ride over the bridges and through the streets of the City soothed the detainees, helped ease the tensions of being caged.
Perhaps, too, that same genius had determined, that if a defendant is inconvenienced often enough, the wearying effect, the sense of disgust and frustration, mixed with the fear of conviction, increased the potential to obtain a plea of guilt to some lesser charge that would mercifully end the mindless continuum of transportation, waiting, and imprisonment. In the age of computers, the percentage and number of dispositions were essential, particularly since there were so many Acting Supreme Court Judges in the New York State Judicial System.
Sandro stood and walked to the Officer seated at the desk outside the counsel visiting room.
“Anybody seen hide or hair of my defendant, Rouse?” he asked the Officer.
“Counselor, you know that I have no interest in keeping you from seeing your client. When they arrive, you get ’em. Until then …” The Officer shrugged.
“Thanks.”
Sandro went back to his seat.
From the time of the Kings Court, long before the American Revolution, imported with the British system of justice, cases were divided by the seriousness of the crime. Misdemeanors, minor crimes, with penalties of one year or less were handled in an inferior (lesser) jurisdiction court known as Special Sessions. All other crimes, where the potential sentence was more than one year, were called felonies and were handled in General Sessions.
The last case ever handled in Kings Court for the County of New York involved a man named Hercules Herring, who was released on bail May 10, 1776. On that date, Mr. Herring’s case was adjourned to the next term of the Court which was scheduled to convene in August, 1776. Of course, the American Revolution intervened, and Mr. Herring’s case never returned to Kings Court. Nor, for that matter, did the Kings Court. In April, 1783, after the Treaty of Paris recognized the United States of America as a free and independent nation, Court in New York County re-convened as General Sessions of the People of the State of New York.
General and Special Sessions continued to function in New York City until approximately 1960. The name ‘General Sessions’, not the function of the court, was thereafter to be known as the Criminal Division of the Supreme Court of the State of New York. The court of lower jurisdiction became the Criminal Court of the City of New York.
At the time of the transition, there had been nine General Sessions judges in New York County, handling approximately 5,000 felony cases per year. These nine judges were each elected for terms of 14 years. To accommodate these judges, on the upper floors of 100 Centre Street, the Criminal Courts Building, there were nine courtrooms, one for each of the now Supreme Court Judges. In 1966, the Warren Bench began sitting in the Supreme Court of the United States in Washington, deciding in Miranda v. Arizona, that the police had to advise a defendant of his legal rights; otherwise, any statement obtained from that defendant, particularly an admission of guilt, would be stricken as obtained in violation of the defendant’s constitutional privileges. Also not far down the track of the Warren court was the Mapp case, which struck as impermissible any evidence obtained in violation of a defendant’s expectation of privacy; and the Huntley decision tha
t struck down involuntarily obtained confessions—even if Miranda warnings had been given; and the Wade case, which struck down impermissibly suggestive identification procedures. All these safeguards faithfully track the strictures of Thomas Jefferson’s Bill of Rights.
To this very day, conservative administrations, both Federal and State, have been trying to undo, or, at the very least, minimize the rights protected by the Warren Court, because, in the Conservative view of the world, such procedures serve only to deter the swift administration of justice, coddling criminals while directly endangering the public. It never dawns upon these critics—except if their son or daughter happens to be arrested—that a defendant in a criminal case is a citizen accused of a crime, entitled to all the protections the Constitution allows, becoming a criminal only if and when he or she is convicted of a crime.
In order to accommodate the wider range of protections resulting from the Warren Court, 55 judges now sit in the Criminal Division of the Supreme Court, New York County, handling approximately 10,000 felony cases a year, a fivefold increase in the number of judges over the original nine State Supreme Court Justices, handling approximately twice the number of felonies. The need for additional judges has not been filled by the legislature through the creation of new Supreme Court Justices. Rather, the balance of needed judges are culled from the Criminal Courts—where judges are appointed by the Mayor—temporarily designated ‘Acting’ Supreme Court Justices. When this elevation occurs, so does the salary paid, to bring the Criminal Court Judge in parity with a Supreme Court Justice (from approximately $90,000 per annum to approximately $132,000 per annum), not to mention the prestige garnered from sitting and functioning in the Supreme Court.
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