Chapter 6: Bail, Truth and Consequences

Lorin Duckman had few allies when he went down, perhaps with good reason. After all, he admitted to some of the in appropriate behaviors of which he was accused. But one of the alleged acts of misconduct for which Duckman was removed was an exchange with a prosecutor in which Duckman said: “Who stays in jail for not having $200? Poor people. That’s not right . . . You deprive a person of his liberty; made them go to jail for five days because he didn’t have $200. That’s not right. Outrageous.” From his current office in Vermont, where he works as a public defender, Duckman asks the kind of question that judges grapple with: “What does the Eighth Amendment [which prohibits ‘excessive bail’] mean right now? Does reasonable bail mean reasonable in terms of a number, or reasonable that the person can pay and that the person will recognize as an important figure?”

Judge Newton, the city criminal courts chief, believes her judges do not deliberately set bail that people cannot make. But while judges are supposed to consider a defendant’s financial resources in setting bail, there is no explicit requirement for judges to make bail affordable for defendants. When prosecutors discuss the affordability of bail, it’s usually only to stress the danger that it will be too affordable for wealthy people. “The only way it comes up is when a person has a great deal of money, you probably adjust it upwards,” says Manhattan prosecutor Kindler.

On the lower rungs of the income ladder, however, even very low bail can be too high to make. Staten Island DA Donovan acknowledges this impact of financial conditions on release. “I do believe there are many people who are in jail because they didn’t post a minimal bail,” he says. “Some of our indigent defendants, their family and friends can’t afford it either.” Low bails are “tantamount to remand for most of our clients,” says Saft from Brooklyn Defender Services. One of her agency’s clients was jailed for three weeks on $250 bail for her first arrest, an assault case. “She was ROR’d finally,” says the woman’s lawyer, Elizabeth Latimer. “The case ended with a disorderly conduct plea and five days community service. She was pissed off.”

The question is, what’s the purpose of setting bail in cases like that? Critics don’t think it’s really to bring a person back to court. They think it’s intended to coerce guilty pleas. Veterans of the system acknowledge that this occurs. “The judges and the DAs both do it,” says Steinberger, the former Bronx ADA. At least one judge agrees. “That is certainly the case, unfortunately, and to me it’s appalling,” says Judge Z. “And it occurs, I think, more where a judge feels that this is a case that he’s concerned about how many cases get pleaded out at arraignment so the statistics look good. Unfortunately, where low bail is set in cases where people cannot afford a $10 bail, it is to coerce a plea. And no one will admit that.”

Coercing pleas is sometimes about the math. In New York, sentenced inmates typically serve two-thirds of their time. On a five-day sentence, an inmate might serve only three days. But a defendant who is held in on bail at arraignment might not be able to see another judge, who could release him, for five days. So if you’re offered a five-day sentence in exchange for a guilty plea, you can say yes and go back inside for three days or say no and do five days behind bars. In other words, for short jail sentences, staying in jail to fight your case means you’ll do nearly as much or more time as if you pleaded guilty.

But defendants can also be pressured when longer sentences are at stake. One day this summer in Brooklyn arraignment court, Judge William McGuire released several defendants and set bail on others. Then McGuire (who declined to comment for this piece) took up the case of a Ms. Brown, a repeat offender accused of possessing two glassines of heroin. The ADA recommended a year behind bars. McGuire offered her 60 days in jail, and warned that if she rejected the deal, her case “would come back to my court and there would definitely be a sentence of more than 60 days,” then added to the ADA: “Just hold off on the bail offer.” The defense lawyer asked that Brown be given a couple days to arrange for her children’s care. “No,” McGuire said. “Sixty days today. While she’s thinking about it, what’s your bail request?” The ADA asked for $2,000. McGuire turned again to the defense side. “Is there a disposition or not?” he asked. There was no deal. “She’s not working,” the defense lawyer said. “She’s not in a position to make bail.” The judge set bail of $1,000.

Not everything in arraignment court is obvious to the casual observer. An audience member can’t know what the judge and prosecutor are seeing in the defendant’s case file—the rap sheet, the criminal complaint, the statement he made to cops. But there are cases where it seems clear that bail is being used as a stick to get defendants to bite the carrot of a plea deal. “Of course that’s not supposed to happen,” says the Bar Association’s Kamins. “Does it happen? I think occasionally,” Judge Newton says she “hopes that answer is no,” and adds, “That would be an inappropriate use of bail.”

Prosecutors interviewed deny that they use bail coercively. Truth is, it’s sometimes the defense lawyers who do the squeezing. One afternoon in Manhattan arraignments, a man named Koram was accused of illegal vending, and it looked like the judge was going to set bail. The plea offer was four days in jail. “If you’re not going to make bail by tomorrow you should plead guilty,” his defense lawyer told him. Koram agreed. But when Judge Coin asked, “Did you exchange the sneakers for money?” Koram hesitated. His lawyer grabbed his arm. “Perhaps you were unsuccessful [selling the sneakers]. You’re playing too many games now. Listen to me. The question is, ‘Were you going to sell them or not?'” she yelled, furiously cross-examining her own client. Throwing up her hands, she told the judge, “There is no disposition.” Koram relented. “I was selling it. I was selling it,” he yelled. Then he went to jail.

Some defense lawyers might use the threat of bail to shed some caseload. Others sincerely think they’re doing the best thing for their clients by getting them to plead and walk out of jail as soon as possible. Many try to leave it up to the defendants. “You have to have a really honest conversation with your client,” says Bronx Defenders attorney Riley. “You say, ‘I will fight this case as quickly as possible but you’ll be fighting it from the inside.'”

Then the accused has to consider his options. “They’re kind of weighing the principle of, ‘I didn’t do it so I won’t plead’ with a certain practical element: ‘Do I want to be here 24 hours or five days?'” says former public defender Zeke Edwards, now with the Innocence Project, which pursues the exoneration of the falsely accused. “They make a decision which is not really related to guilt or innocence. It’s related to ‘out’ or ‘in.'”

Staying in jail to fight your case means accepting an uphill battle. Detained defendants have a harder time meeting with their lawyers. They can’t visit the scene of the crime or introduce their lawyers to witnesses who are hard to track down. And detained defendants can look worse for wear in court. It’s no surprise, then, that pretrial detention is linked to higher conviction rates: Of defendants facing misdemeanor or lesser charges who are released pre-trial, CJA research has found that about half are convicted, versus 92 percent of those who are jailed before trial. Even those detained for a short time and later released had higher conviction rates than those never locked up at all. It’s possible that some of that impact has to do with the strength of the cases: In other words, the defendants facing stronger cases were less likely to be released and more likely to be convicted because of the evidence. But research has found that detention is an important independent factor in how cases end—especially if they end by plea. “It’s one of the factors that plays on a defendant’s mind when they consider plea deals,” says Bronx DA Johnson, a former defense attorney. “There are cases that we think merit a jail sentence and it’s a lot more difficult to get a defendant to acknowledge or accept that when they’re out.”

Even if the threat of bail doesn’t lead to a plea at arraignment, the pressure of being locked up on unaffordable bail will encourage a plea later on. “A $1,000 bail is really enough to get a conviction that you wouldn’t get from people who could afford bail,” says Brooklyn de fender Latimer. Presiding over night court in Manhattan one evening in August, Judge Abraham Clott is setting high bails. He imposes $7,000 bond or $3,500 cash for a cell-phone robbery. A drug sale defendant gets $20,000 bond over $10,000 cash and another felony drug defendant is hit with $200,000 cash or fully secured bond. But one thing Clott is doing—that many judges don’t—is telling defendants what a guilty plea really means.

Of the guy pleading guilty to marijuana possession to get out with time served, he asks, “Do you understand that this will give you a criminal record?” and “Do you understand that this plea might make you ineligible for several kinds of employment, for public housing, for school aid. It can have effects for some time.”

Defense lawyers would agree. “Nowadays there are huge collateral con sequences to taking a plea offer for a crime—or even a violation,” says Knecht of Neighborhood Defender Services. It’s always been true that convictions had an impact beyond jail. But years of tough-on-crime legislation have expanded those consequences.

Take public housing. In 1988, the U.S. Department of Housing and Urban Development implemented a “One Strike” policy that evicted public housing residents who engaged in “criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises.” That seems very reasonable: No resident should be forced to live amid violence. But a 1990 law added “any drug-related criminal activity” to the list, which lumped in nonviolent crimes com mitted in the projects. And after President Clinton called for a tougher policy in 1996, the rules were amended once more to include crimes that occurred nowhere near the public housing where the defendant lives, sought to block new applicants who had criminal records, and made criminal history files more accessible to public housing authorities.

A Class E felony (the lowest level of felony, encompassing charges like “criminal injection of a narcotic drug”) now makes NYCHA housing of f limits for five years. Most Class A misdemeanors like making graffiti taint you for four years, and most Class B misdemeanors like third-degree criminal trespass for three. Even some violations, like disorderly conduct, come with a two-year ineligibility period. Separately, drug-related convictions and violations can also impair your eligibility for Section 8 vouchers.

But that’s just the beginning. In New York, incarcerated felons cannot vote until their sentence is complete and cannot serve on a jury without court permission. Drug convictions can block you from student aid and college tax breaks. Some convictions come with a driver’s license suspension of up to a year, and under some circumstances a commercial driver’s license can be yanked for life. Some convictions trigger the forfeiture of property. If you have a drug-related felony, you cannot ever get food stamps and most federal cash assistance unless the state you live in opts out of that provision. New York has opted out, but if a defendant moves to a state where the rule is still applicable, the ban binds. People with government contracts can lose them, and military service might be off limits after a conviction. Other countries can bar your entry. The State Division of Criminal Justice Services tells public employers when their workers are arrested, and this can lead to suspensions. People with some jobs, like barbers and funeral directors, can lose their licenses because of a conviction. State law now requires people convicted of low-level, nonviolent crimes like petit larceny to provide samples to the DNA database.

Within the courts themselves, convictions have obvious consequences: Today’s guilty plea is tomorrow’s “prior conviction” for a defendant unlawful or unlucky enough to get arrested again. But collateral consequences in the criminal justice system are multiplying. In 2002, Mayor Bloomberg initiated Operation Spotlight, meant to target repeat misdemeanor offenders. DAs now red flag defendants who have two or more misdemeanor convictions in their lives and three or more arrests in the past year—including arrests that might not result in convictions. Judges see that information anyway, but Spotlight is an effort to highlight it so judges take a harder line. And research indicates that it’s working: Spotlight defendants have been denied bail more often, even though there’s sometimes confusion in arraignment court over who merits the designation and why. On a couple occasions in arraignments that City Limits witnessed, an ADA was heard to lament, oddly, that a defendant had been charged with a felony in a past case—because, if he’d been charged with a misdemeanor instead, he’d qualify for Spotlight.

Meanwhile, employers and credit rating companies are increasingly using private criminal records databases to check applicants’ backgrounds. In New York State, misdemeanor and felony convictions can never be sealed, and criminal records are sold at $52 a name. Most public records of violations (like disorderly conduct) are automatically sealed, except for DWIs and prostitution, but private databases can still record them.

“You get this, like, domino effect of consequences that are produced but don’t necessarily relate to the criminal proceeding,” says Bronx Defender Smyth. “We’re kind of sitting in the middle of this perfect storm. On one hand you’ve got the steady accumulation of life consequences—that affect everything from housing to education to welfare, to child welfare—that every single year get added to because they’re politically easy; they seem to be low cost for legislators. On the other hand is the unprecedented access to criminal history data. This is reinforcing the problem because everybody has access to everything.” Smyth works with indigent clients fighting evictions from NYCHA. “Either the entire family loses their housing because they want to stay together or they rip apart the family,” he says. “The choices that the system is forcing these families to make because they are poor are abhorrent.”

The growth of collateral consequences “is probably the most serious issue in the criminal justice system,” says Judge Newton. “When I started an independent training session a few years ago, one of the very first topics we looked at in depth was collateral consequences for criminal convictions. I think that all of the judges are now very aware of this. Once again, the question is, what do you do with it?” When a defendant refuses to plead guilty in order to avoid the long-term collateral consequences of a conviction, she has to accept the immediate life consequences of pretrial detention: missing work and school, being separated from children and facing potential custody problems, skipping appointments with doctors or welfare administrators and being held in the potentially dangerous environment of a city jail. And perhaps not for just a few days. “Let’s say you have a client who says, ‘No. I’m innocent. Let’s go to trial,'” says Garcia of Neighborhood Defender Service. “That takes months.”

There are consequences as well for the taxpayer—namely the more than $600 million it probably costs the city annually to hold pretrial detainees—and for the people who work in the jails. Norman Sea brook, head of the Correction Officers’ Benevolent Association, says pretrial detention can turn into “a real nightmare” for both detainees and guards. “A young man or woman that’s brought into the city’s jail system [on bail]—now here’s the dangerous part—he or she is then put into the general population housing with someone who’s been charged with murder,” he says. “So what you’re doing is contaminating these youngsters. They may be subjected to joining a gang. The correction officer has to work twice as hard to hear that person calling for help who’s not calling [out loud] for help. It makes it that much more difficult.”

It’s unclear if Matthew Cruz called for help. But he may have paid a higher price for his pretrial detention in 2006 than others.

Not much is known about Cruz. He apparently grew up in New York, lived in Brooklyn, had an ex-wife who’d gone to court over his alleged failure to pay child support. He was a licensed stockbroker who in the late 1990s through 2005 had jumped from one firm to another, including a few reputed “boiler rooms” that used aggressive tactics to sell stock. People who knew Cruz say he was trying to put his association with such controversial firms behind him. “He was trying to get out,” says his last employer, who didn’t want to be named. At two of the firms in Cruz’s past he worked with a man named Christopher Janish, who is now accused by a Manhattan grand jury of costing his clients $13 million by hyping stock in his uncle’s company and making trades with little regard for his investors’ wishes.

Janish faces enterprise corruption, grand larceny and other charges (which he denies) that could earn him up to 25 years in prison. When Janish was arraigned last summer, Judge Arlene Goldberg at first remanded him. Then she set bail, asking for a fortune—$5 million. The seven other stockbrokers who were indicted in the case with Janish also faced high bails. Cruz, then 38 years old, was held on $10 million bond or $5 million cash.

Janish’s family hustled to put together enough cash and property to post a bail bond. It wasn’t the highest bail ever demanded—the judge in the Robert Durst murder case in Texas set bail at $3 billion. But Durst didn’t post it. Janish did. “It took me four months,” bail agent Ira Judelson says, claiming it was “the highest bail ever made in the United States.” Janish walked out of Rikers in December.

But Cruz was already gone by then— not on bail, because with no assets and about $10,000 in the bank he had no chance of posting even a tenth of what the judge was asking. In early November 2006, the Department of Correction reported that Cruz had died in his cell of “an apparent suicide.” The medical examiner’s office concluded that he hanged himself. But Cruz’s lawyer, Barry Turner, isn’t sure that his client took his own life. “There was some expectation that we were going to get him out of jail soon,” by having his bail reduced, Turner says. “He was a great father and very much in love with his child. It just didn’t make sense. He wasn’t depressed. He was getting optimistic.” What’s more, in a letter he sent to Turner before his death, Cruz had said he’d learned of a plot against him. “He says in the letter that here was a hit set up for him. It was supposed to occur on the way to dinner,” Turner says.

Turner says his client’s bail was “excessive.” The Manhattan DA claims it asked for such high bail because Cruz tried to flee and was arrested outside the county, but Turner insists that his client surrendered to the DA.

Janish was indicted this year, along with his wife, on new criminal charges—for criminal contempt. Prosecutors allege that he moved company stock and took money out of his company’s bank accounts in violation of a restraining order. He was returned to jail and will likely remain there until trial.

Since he’s safely behind bars, Judge Goldberg on August 17 released Janish’s bail, one day short of a year after she set it.