OPINION: In-person court proceedings are dangerous to all involved, especially people of color
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A court officer administers a courthouse temperature check. Photo courtesy of OCA
By Evelyn Malave, Spencer Smith, Alexandra Smith and Haley Pessin
As the City mourns the death of 30,000 residents, New York’s Office of Court Administration inexplicably announced they were resuming in-person operations in July. At least four of those deaths are directly linked to the court's egregious decision to remain open in March. Two judges, a court officer, and our colleague, an 1199/SEIU paralegal, lost their lives from COVID-19, dozens of staff were infected, and countless community members were exposed. Once again, despite the evidence that COVID-19 continues to threaten our existence and despite the success of virtual courts, OCA is demanding in-person appearances—thereby creating COVID Courts.
OCA's actions in March were irresponsible, and today they are again acting with a callous disregard for human life. We, attorneys and support staff from The Legal Aid Society’s Criminal Defense Practice, will not participate in this dangerous and unnecessary plan that targets Black and Brown New Yorkers.
Resuming in-person operations in COVID Courts is dangerous. Social distancing will not protect our clients from an airborne virus in New York’s aging courthouses with inadequate ventilation systems. Temperature checks and health inquiries will not prevent transmission when studies show the majority of virus transmission is attributable to people who are not exhibiting symptoms. This capricious plan requires New Yorkers to travel by mass transit, another hotbed of exposure, into city centers and then return back to their communities. OCA’s insistence on in-person appearances effectively turns court staff, attorneys, and our clients into a new wave of COVID superspreaders
Health experts advise Americans to avoid congregating indoors and our Governor demands indoor restaurants, theaters, and malls remain closed. OCA, however, is needlessly forcing people to expose themselves, their families, and their communities to a risk of infection and death. It is dishonest and deceitful of OCA to suggest they are taking a “conservative, measured and deliberative approach,” as OCA spokesperson Lucian Chalfen claims.
COVID Courts disproportionately harm Black and Brown people. People of color are disproportionately targeted by the police and are unjustly overrepresented in the criminal court system. The vast majority of our clients and many of our staff are Black and Brown New Yorkers, whose communities are already decimated by COVID-19. The state cancelled the September bar exam, recognizing the dangers presented to a body of law students where BIPOC communities are underrepresented, while OCA and Chief Judge Janet DiFiore continue to promote in-person appearances from our clients. As experts continually unearth new evidence of racial disparities in this pandemic, OCA turns a willful blind eye and intentionally puts Black and Brown New Yorkers in harm’s way.
This is what racism looks like: forcing poor people of color to risk their lives in COVID Courts even as the state continues to suspend jury trials and other criminal due process rights. OCA’s indifference to the health and safety of BIPOC communities is unacceptable.
COVID Courts are illegal. Governor Cuomo’s operative Executive Order only permits in-person appearances when “there is consent.” For all of the reasons above, we, as public defenders, do not consent. Our ethical obligations as attorneys, at a minimum, include protecting our clients from danger. We continue to be available by video, phone, and e-mail, as we have been throughout this pandemic. We will not, however, participate in COVID Court.
Virtual proceedings prove that COVID Courts are unnecessary. In-person appearances will not change the outcome of cases. Virtual court operations are successfully conferencing cases, reaching dispositions, and holding preliminary hearings. The courts claim in-person appearances are required to alleviate the supposed backlog of cases. By New York City’s own count, the courts have heard over 50,000 cases since mid-March. Given that the Governor’s Executive Order suspends all jury trials and speedy trial rights, it appears that the courts’ only motivation to order in-person appearances is to pressure our clients to compromise or “plea bargain” just to avoid risking their lives. We will not allow that to happen.
Life in post-pandemic New York City, where schools are still closed, childcare services are inoperative, and mass transit is no longer a safe means of travel, requires that all of us adapt. If we can adapt as individuals and as a city, OCA must adapt as an institution.
Evelyn Malave, Spencer Smith and Alexandra Smith are staff attorneys and Haley Pessin is a paralegal with the Criminal Defense Practice at The Legal Aid Society. They are members of the ALAA-1199SEUI Union Coalition Committee.
