Jimmy Emerson, DVM

The Brooklyn Criminal Courthouse

One of the foundational principles in the United States is that in our criminal courts, a person should always be considered innocent until proven guilty. The recent prosecution of Jazmine Headley—a young, tired mother arrested while sitting on the floor of a social services office in Brooklyn, whose ordeal went viral after NYPD officers were caught on video ripping her one-year-old son out of her arms—exposes how far we have drifted from that ideal.

Ms. Headley’s experience has now been roundly condemned by a wide host of elected officials, including, eventually, the Mayor. But left out of those critiques was an acknowledgement of what the incident exposes about the widespread failure in our criminal legal system to protect due process and the presumption of innocence, and our own numbness to the disproportional punishment meted out by police and criminal courts on a daily basis. The Brooklyn District Attorney, who could have declined to prosecute Headley, but chose not to, has been seen by most as doing what he could in a challenging situation to alleviate Headley’s suffering—even though that meant five days on the notorious and condemned Rikers Island.

Broken Windows—the wide-scale arrest of primarily people of color for low-level crimes and violations—has come to define the past two decades of policing in New York City and beyond. The police have arrested so many people that the courts cannot stay up to speed, lowering the bar for which cases prosecutors will actually bring into the system. The standard practice has become process first, ask questions later—with less and less scrutiny of the facts of the case coming in, or of the police who are typically the sole witnesses in criminal cases.

Manhattan District Attorney Cy Vance has said he has no idea if the cops bringing him cases have histories of lying in court or brutality, because the New York City Police Department refuses to share that information with him.

District Attorneys have tremendous discretion that makes them the most powerful gatekeeper to the criminal legal system. They have unilateral authority to decide which cases to allow into court, whether a case comes in as a felony or a misdemeanor, or is thrown out before ever entering a courtroom. In the current regime, almost every single arrest is converted into criminal charges—in Brooklyn about 95 percent of cases, a historical norm. Although some may believe that those charged will eventually get their day in court, that’s wrong too—less than 1 percent of cases in New York City end with a jury trial, the rest dismissed or disposed of through guilty pleas.

Ms. Headley was arrested in a crowded Human Resources Administration office on a Friday and spent the next five days in jail, while her attorneys negotiated with judges and prosecutors in both Brooklyn and New Jersey to secure her release. On the following Tuesday, Brooklyn District Attorney Eric Gonzalez put out a statement announcing that he was dismissing charges against Ms. Headley and that he was “horrified” by the violence shown in the videos. All of this could have happened on the day she was arrested if the District Attorney had processed the case differently.

No investigation took place before charges were brought against Ms. Headley and she was booked into Rikers Island. This is par for the course in New York State, where a simple accusation, requiring almost no evidence whatsoever, is considered sufficient cause for prosecutors to move forward with a case. A simple arrest can do generational harm, particularly for already vulnerable communities—those who law enforcement target and the criminal legal system prosecute almost exclusively.

The reality is that at the onset of a case, almost nothing is known about what events actually transpired. In New York State, people accused of even the most serious cases—violent felonies—have a better chance of having their case dismissed (33 percent of cases) than it ending with a sentence to jail or prison (25 percent)—and yet many people accused of these crimes spend time in jail (sometimes years) as the case winds its way through the system. In misdemeanor cases, which include the charges brought against Ms. Headley, the data is even more stark: 39 percent of cases are eventually dismissed, while just 8 percent end with a jail or prison sentence. No one charged for such minor incidents should ever set foot in a jail cell and should probably never be arrested for them in the first place.

Ms. Headley’s arrest occurred about ten blocks from the Brooklyn District Attorney’s Office. There were a significant number of witnesses, cell phone videos and city employees involved in the incident. So how is it that Ms. Headley’s case wasn’t immediately dismissed the moment she was brought by NYPD to Brooklyn Central Bookings, sometime on Friday night? What effort was made to learn about what actually transpired?

All District Attorneys rely on the police to bring cases to their office. What did the police actually report happened in Ms. Headley’s case? If the officers were not truthful, what happens to them now? What process did the District Attorney go through to decide what charges to bring against Ms. Headley? We will never know because those decisions are made outside the scope of public inquiry. If the case was worth dismissing 5 days in, under tremendous pressure from advocates and elected officials, how was it not worth dismissing right away? How is it possible that we can so cavalierly throw the mother of a young child into jail, upending her life, and then five days later, much of the damage already done, simply take a mea culpa? How has that become normal?

This situation is not unique to Brooklyn and to be clear, the Brooklyn District Attorney is not uniquely bad on this issue. This is just how the people have allowed the system to operate.
The reality is that the criminal legal system, burdened by decades of mass arrest practices, has significantly changed for the worse. Investigations occur after charges have been brought, and the process is the punishment. With notable exceptions such as Harvey Weinstein or Eric Schneiderman, who are given every possible benefit of the doubt because they have the power and resources, all sense of innocent until proven guilty has been lost.

The mayor and City Council should immediately hold hearings with all New York City District Attorneys to learn more about their charging practices, what they know about the cops bringing in those cases, and get creative with how the city can raise the barrier for which residents are charged and what charges are actually prosecuted. They could cut police and district attorney budgets, for example, and force them to prioritize cases rather than just take any little thing that comes through. This same interrogation should occur in every county in the state.

The State Legislature should immediately pass legislation to force some changes. Chief among these should be decriminalizing a host of low-level offenses, a repeal of police secrecy laws and the passage of discovery reforms that includes a specific evidentiary burden at first appearance and prior to plea negotiations. No case should ever be prosecuted, let alone concluded, without all parties having access to a review of at least basic evidence—more than just the word of police. The leadership of the state of New York needs to take an all-hands-on-deck mentality to addressing the crisis unfolding in criminal courts across the state every day.

Nick Encalada-Malinowski is the Civil Rights Campaign Director at VOCAL-NY.

Response by Oren Yaniv, spokesman for the Brooklyn DA’s Office:

The Brooklyn DA’s office shares this writer’s concern about the ordeal that Jazmine Headley and her young child underwent in connection with her arrest at the HRA building, and we are always looking to improve the way we write up and process cases to minimize the time people accused of crimes spend in the system unnecessarily. We believe that our office acted appropriately in this case, given the information we had at the various stages of the process.

Ms. Headley was arrested on a Friday afternoon. The Police Department determined that she had a New Jersey warrant. By that evening, Brooklyn Court personnel had determined that New Jersey intended to extradite Ms. Headley on the warrant, effectively creating a hold that would have kept her detained regardless of any action taken by our office.

Nevertheless, we consented to Ms. Headley’s release on the HRA case when she was arraigned on the following day, Saturday. That case was not the reason she remained incarcerated; she was detained on the warrant.

The writer argues that we should have investigated the charges against Ms. Headley more thoroughly before writing up the case at all. While the idea that a case should be fully investigated before a charge is brought against someone is appealing, it conflicts with our constitutional obligation to have someone accused of a crime arraigned within 24 hours of their arrest. Investigating Ms. Headley’s case thoroughly would have entailed serving subpoenas on a government office that, while not far from our agency, was closed over the weekend; identifying witnesses and questioning them; obtaining the officers’ body-cam videos, which were not uploaded immediately, and reviewing them; scouring social media for evidence; and taking other investigatory steps. This would have resulted in the case taking much longer to arraign and, had Ms. Headley not been held by the New Jersey warrant, might have resulted in her spending even more time locked up.

In fact, we completed all of these investigatory steps at the first opportunity we had – on Monday – and made the decision to dismiss the case, which we did on Tuesday morning. At this point, Ms. Headley was still being held in on the New Jersey warrant, but when her attorneys asked that she be released on the warrant to appear on her own, we consented, even though the New Jersey prosecutor had urged us not to do so.

Dealing with a high volume of cases every day, we do our best to gather as much information as we can in a short period of time, and move cases quickly to minimize the time people accused of crimes spend in jail. While we are always open to suggestions about how to do our work better and to make the system more fair and more just, the proposals in this op-ed reflect a lack of understanding of how the process works and how seriously we take our obligation to reduce arrest-to-arraignment time.