‘Unacceptable and contemptuous’: Judge finds DOC in contempt for Rikers arson unit debacle

A federal judge found the Department of Correction in contempt of court on Thursday after it failed to communicate with the federal monitor about the opening of a secure housing unit in November. Eagle file photo by Jacob Kaye

By Jacob Kaye

About an hour into a federal court hearing about the continued violence on Rikers Island, former Department of Correction Commissioner Louis Molina had difficulties communicating.

Appearing virtually – despite the crucial court appearance being on the books since the summer, Molina told the court that a previously planned family engagement would prevent him from appearing in person – Molina, who recently was “promoted” to serve as the assistant deputy mayor of public safety, asked federal Judge Laura Swain if she could hear him over the phone.

“No,” the judge said.

Unfortunately for Molina, much of Thursday’s hearing, the first since the Legal Aid Society formally called on Swain to strip the city of its control over Rikers Island and hand it over to a federal receiver, focused on the Department of Correction’s alleged failure to communicate and be transparent with the federal monitoring team tasked with tracking conditions in the failed jail complex.

In the end, Swain found the city in contempt of court on Thursday after the DOC last month opened up a secure housing unit meant to house detainees accused of habitually committing arson without first consulting the monitoring team, and later chalking the whole episode up to a mundane series of miscommunications.

Though the city attempted to defend the opening of the unit on Thursday, Swain said the lapse in judgment was evident of a larger issue with transparency the department had under Molina’s leadership.

“The court has repeatedly ordered the city to consult with the monitor,” Swain said. “Because the court has offered the department a number of opportunities to improve its cooperation with the monitoring team [the opening of the unit] is unacceptable and, in a word, contemptuous.”

The debacle of the opening of the unit, known as the Arson Reduction Housing Unit, appeared to serve as a disappointing bookend to Molina’s nearly two-year tenure as commissioner, which officially came to end last week.

After resolving the tech issues that prevented the judge from hearing his testimony on Thursday, Molina attempted to defend his tenure leading the agency, which saw 28 detainees die under its care in the 22 months Molina led it.

“I felt that I and my team communicated with the monitor a great deal,” Molina said. “I’ll leave it to the court to decide that.”

Anna Freidberg, the deputy monitor, appeared to take offense to Monlina’s assertion that he had been open and communicative with the monitoring team.

“We are entirely exhausted and frustrated by these issues,” Friedberg said.

Swain, who is overseeing the ongoing civil rights case known as Nunez v. the City of New York, wasn’t swayed by the city’s defense, which she called “preposterous.” Later in the hearing, she said that proof of the city’s noncompliance with the court orders requiring collaboration and communication with the monitor was “clear and convincing.”

The federal judge, who is separately weighing the extreme request for federal receivership, ordered the DOC to elevate the role of the current DOC staffer charged with coordinating communication with the monitor, to create a “high-profile communication program” that makes clear to staff and DOC leadership that they must cooperate with the monitoring team and to develop a set of data and metrics to accurately evaluate use of force incidents, violence and security in the jails.

Should the city fail to meet her orders, Swain said that she would “not hesitate to consider the very serious imposition of a heavy fine” of at least “four figures a day.”

“I urge the department not to put me in that position,” Swain said.

The city will have until February to prove that it is in compliance with the orders Swain handed down from the bench on Thursday.

A reason for hope?

Despite showing little approval of the DOC’s actions under Molina, Swain said on Thursday that she was encouraged by the recent appointment of Lynelle Maginley-Liddie as the agency’s commissioner.

Maginley-Liddie, an eight-year veteran of the department, most recently served as the DOC’s first deputy commissioner and has taken part in the agency’s attempts to comply with the Nunez consent judgment in all her positions there.

It was suggested several times during Thursday’s hearing that her appointment – and Molina’s transition to City Hall – were directly related to the city’s attempts to stave off receivership and show that they are willing to comply with the court’s orders.

“We must be honest – the department’s issues are complex,” Maginley-Liddie said during the court conference. “I promise there will be action.”

Swain said Maginley-Liddie’s appointment gave her hope that the city’s posture toward the monitoring team was changing.

“I find the remarks of the commissioner…particularly encouraging to me,” Swain said.

Noting that her appointment came at a “crucial time,” Maginley-Liddie will be charged with attempting to convince Swain that the city should remain in complete control over the management of Rikers Island and not be subject to federal receivership.

The question of receivership loomed over Thursday’s hearing, though it was never directly litigated.

However, Swain said that she will likely view how the city responds to the contempt order in the context of the necessity of a receiver.

“It could persuade me that that is not necessary,” the judge said.

What comes next?

Last month, the Legal Aid Society formally asked Swain to institute a receivership, arguing that the city has failed to cure the violent conditions in Rikers during the near decade since the consent judgment in Nunez was first ordered. Attorney General Letitia James, the NYCLU, the city’s bar association, numerous public defender firms and a handful of other officials and organizations joined the call for receivership through a number of amicus briefs filed with the court last week.

Though the filing has been made, it will be some time before its finer points are actually argued in court.

The city successfully had their deadline to respond in writing to the receivership request pushed back by two months on Thursday by Swain, who said the city could take until April to submit their response.

The changed deadline also pushed back the date of the next court appearance in the case, which has now been scheduled for May 15.

Despite allowing for more time to pass between appearances, Swain said on Thursday that “we cannot waste time.”

“We are dealing with the lives and safety of real people who have no choice about being in the jails,” she said.