May 2015
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Poor People's Courts

by Jonathan Wallace

The courtrooms in which I practice in New York state have some symbolic features which fascinate me. In almost all of them, the first two rows are reserved for attorneys. In the criminal courts, police also are permitted to sit there. In some of these courtrooms, if you sit further back with your client, court officers are startled, and will even remind you that you have a right to sit in the first row. In the New York City summons court earlier this week, I was reproached for taking the original of the summons (they do not provide you with a copy) back into the audience, to show the client what she was charged with--not the first time this has happened. New York City criminal courts have a feature which is quite baffling-- a chain across the entry to the "well". The well is the area where the judge, counsel and jury actually sit. In many courtrooms, there is a wooden barrier differentiating the well from the audience, but only in criminal courtrooms is there a chain you have to detach to enter, then re-attach behind you. This serves no possible security purpose--too easy to jump over--and seems instead to offer a Dantean message: "Abandon all hope, ye who enter here".

There are two styles of courthouses and courtrooms--those in which wealthy clients and lawyers are expected to appear, and those in which the poor, often without lawyers or with disrespected appointed ones, are expected to be the majority of "customers". The former tend to be in huge, ornate marble buildings, with huge entrances flanked by columns, and quotes from John Locke or Thomas Jefferson engraved in the marble. At the lowest level, courts intended solely for the poor, such as landlord-tenant, are often in crowded, dirty and plain office buildings barely converted for the purpose. (Complete afterthought, added after I first posted this essay: you could say we have "Lockean" and "Hobbesian" courtrooms in New York, and it might be appropriate actually to post quotes from Hobbes over the latter. Something about life being nasty, brutish, short, a war of all against all.)

A couple of years back, I stumbled into the New York City summons court, on lower Broadway, one of those converted office buildings (in fact, it still houses numerous administrative offices in addition to its three courtrooms). The Dante metaphor is exact: summons court is a vision into one of the less bloody circles of the Inferno. It is where you go when an officer gives you a ticket for drinking alcohol from an open container, public urination, leaving your car running unattended, bicycling where you are not supposed to, a noisy muffler. While all courts, like all public institutions, are consensual hallucinations--they exist because we all agree they do-- summons court is a double hallucination, a court that doesn't actually exist. When you arrive in the security line waving your summons, you are funneled into an office to your left to "check in". You are handed a small yellow sheet of paper, which everyone signs without reading and understanding, which is actually a consent to the jurisdiction of this doubly imaginary entity. By signing, you waive your right to be tried before a judge, and to demand discovery relating to the charges. At one time, you also waived your right to an appeal, though I think this changed recently.

In a recent book, ethics professor Peter Singer suggests that choosing to be a guard at Auschwitz may be a moral choice because you can be the kind, helpful guard. Others would say there are systems we should refuse to enable. I have seen the public defenders in summons court stand up to the judge. I have also observed the open container trial, a ten minute scene undoubtedly repeated hundreds of times a week. A seventy five year old African American man, brimming with honest indignation, tells the judge he was watching his grandson play baseball in Central Park, drinking a bottle of cranberry juice for his bad kidneys, when a cop came up to him and said, "That is alcohol", and gave him a ticket. The officer testifies, "I smelled it and it smelled like Hennessy". "Yes," says the tired, elderly public defender, "What does Hennessy smell like?" The cop visibly hesitates; he doesn't know. "Sweet" he finally says. Hennessy is brandy, which has a sharp smell to most of us. The judge doesn't care; he convicts. After all, only a $35 fine is at stake. It is a tax on being outside drinking a beverage, while poor.

You could not be convicted for carrying cocaine without the prosecution having performed a chemical test, to establish that what you had was not baking powder. But, for an open container violation, the officer is allowed to testify that it smelled like alcohol. I was so outraged I approached several civil liberties attorneys; I wanted to bring a federal action to break the open container law, to require the city to test for alcohol the way it tests for drugs. I was met with a unanimous shrug. "If you did that and won", I was told, "the fine would go from $35 to $500, to make them pay for the test".

There is no prosecutor in summons court. The judicial hearing officer, who is a retired judge or attorney being paid $300 a day , therefore must play both roles, asking the testifying officer any questions necessary to elicit guilt, then purportedly switching gears to listen to the defendant with a neutral mind. Every trial I observed resulted in a conviction. In reality, summons court is not a court at all, but a mill producing millions of dollars in fines for the city every year.

You can't say that its minimal because the risk is "only" thirty five dollars. That's a lot of money to someone who is broke (its still a lot of money to me). And that isn't limited to thirty five dollars a year, because there isn't any restriction against giving you another summons the next day for your car running at the curb, or driving your bicycle in the wrong place, or wheeling a wheelbarrow full of boards without a construction permit, or the catch-all, disorderly conduct for shouting or talking back to a police officer. Even jaywalking. There are all kinds of taxes applied just for being poor in New York City.

I know about summons court because, sometimes when my clients are arrested for protesting, they are issued a summons instead of a desk appearance ticket. Apparently the police officer, or more likely his lieutenant or captain, gets to decide which kind of paper to write, but the consequences are major. You and I could be arrested side by side, while holding opposite ends of a sign saying "No Justice No Peace". The charges are identical: disorderly conduct, blocking pedestrian traffic. I receive a desk appearance ticket and a date to appear at 100 Centre Street. An assistant district attorney is assigned to my case and I receive a "Voluntary Disclosure Form" with any evidence being used against me, and, most usefully, any video shot by the Technical Assistance Response Unit (which in fully half the cases I have handled shows the defendant did not do the thing he was charged with). You receive a summons, appear at 346 Broadway, are asked to sign the waiver form. If you refuse (which I have all my clients do) you are sent across the street to 100 Centre, where the DA's office still refuses to get involved and you still don't get the TARU video, because its nobody's job to locate it, copy it and send it to you. That is clearly a basic due process and equal protection violation: why should your constitutional right to exculpatory material go away because a cop chose to write a summons instead of an appearance ticket?

The other poor people's court I visit is landlord-tenant, in Brooklyn and Manhattan. The vast majority of tenants are representing themselves, because they cannot afford an attorney. Several public defenders' organizations have set up operations in landlord tenant court, but are not well-funded and can take only a tiny percentage of the cases. This creates another gaping Constitutional hole: If you are facing a $35 fine for an open container violation,you are entitled to a free lawyer, but not if you risk losing your family apartment of thirty five years and becoming homeless. It doesn't make any sense. A left leaning New york City Council, to its credit, has been studying this issue but is baffled by the billions of dollars it would cost to make sure every tenant has a lawyer. So they are likely to continue letting the poor go gentle into that good night.

I remember figuring out that nobody else in high school could have my exact schedule, because then I would see that person in every class. In landlord-tenant court, I have never run into another private attorney doing pro bono work. Not one, ever, in any courtroom. When I go into neighborhoods in Brooklyn and meet tenants, I never hear about the other pro bono lawyer who was here yesterday. What I am doing is not that difficult, and everyone could take one client. But it isn't required, and no one does.

Criminal court is actually a sympathetic place to do pro bono work. There, no distinction is made between me and the paid lawyers, and the clerks, aware we have to be in three other courts the same day to earn a living, try to get us out within half an hour after we check in. In landlord-tenant, there is no paid tenant's bar, and the clerks treat me as pro bono counsel as badly as the tenant I am representing. Not because they are mean, but because the whole place is configured for the landlords' lawyers. They work in the building and are there every day, all day. Every time I go into landlord-tenant, I know I may be there from 9:00 a.m. until 2 in the afternoon just waiting for the landlord's attorney to show up in our courtroom. Once you get to know them individually, you can search the building, run them to ground and try to drag them back to your court. That shouldn't be required.

What's worse is the sense of being an outsider in a closed system. As a matter of public policy, court personnel should be officially happy when a tenant finds a free lawyer. In some courtrooms, that's true; I have had court officers and clerks beam at me, pleased to see me standing up for my client. Some judges actually do their best to protect tenant's rights, in the absence of an attorney. On the other hand, I have had that "Mr. Jones" feeling, when there seemed to be a perfect understanding between a judge and my adversary who was in her courtroom every day. One judge turned to me and said, "You may have engaged in some sharp practice, Mr. Wallace"--surprising and angering me, not only because I had not, but because I was in her courtroom for the first time, had been before her less than two minutes, and the only information she had about me was that my adversary, one of her regulars, did not like me.

The probable reason that you don't see any pro bono attorneys in landlord-tenant is that there is a huge chill in the air. There is no glory in it, just a lot of stress and extra work. Most people believe, rather reasonably, that its a mill for evicting tenants in the same sense in which summons court is a mill for taxing the poor. In landlord tenant court, like in summons court, you don't get discovery as the norm (you can ask a frequently unsympathetic judge to order it). In cases where the only issue is whether you have a lease or paid the rent, courts may be able to make fair decisions based only on the parties' testimony. But there are cases that are much more nuanced; sometimes, in today's overheated, gentrifying environment, landlords try to evict tenants who have lived in apartments for decades or lifetimes, claiming they are strangers. In these case, condemning tenants to summary proceedings without any discovery, without being able to search the landlords' files to prove they knew you, also seems like a due process or equal protection violation.

I have saved for last the following anecdote. New York has uniform rules for trial courts. This compendium includes a rule 202.7, which prohibits making a dispositive discovery motion without a good faith effort to settle any outstanding issues. This effectively ended the kind of crazy, bad faith environment we endured in the 1980's, in which no matter what you produced, the other side would then move to strike your pleadings, trying to win without a trial. No attorney in good faith would ever mind making a phone call first, to say, "I didn't see the trust documents", or "correspondence with Mr. Smith" or "the April 18 invoice" in your discovery, can you please produce it? The only attorney who wants to proceed directly to a motion to dismiss without the requirement of a phone call is the one who is hoping to win without giving you a fair shake.

Rule 202.7 shockingly does not apply in Housing Court. I have a case going right now in which we voluntarily produced thirty years' of documentation of a tenancy, only to face a 1980's-style motion to dismiss without the courtesy of even a phone call. Clients I represent in multi-million dollar cases who pay me hundreds an hour are protected against bad faith motions, but tenants in eviction proceedings who mainly don't even have lawyers, are not. I have already put in forty hours or so defending against this tactic, that wouldn't be required in any other court. Would anyone blame me for never taking another eviction case pro bono?

There is no Constitutionally acceptable rationale for having rights and protections, especially Constitutional ones, which are available to the rich but not the poor. Much of the time this discrimination, which no-one could possibly formulate reasonable words to defend, is completely unconscious, an acceptance of a long standing status quo, that things are just different in courtrooms of engraved marble than in courts which sit in crowded office buildings.