Courthouses, Crime

Criminally Yours: Navigating Criminal Arraignment

So you've been arrested. Now what? Columnist Toni Messina will walk you through what happens next.

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justice-handcuffs-e1372182679824-300x286So you’ve been arrested. Now what?

Well, police will have either given you a summons (also called a desk appearance ticket (DAT)) or put you through the whole processing nightmare — fingerprints, mug shot, and then jail, until you see an arraignment judge and bail is decided.

Obviously, you’d prefer the former — a simple ticket with a time and date to come back to court to be arraigned. People who have prior criminal records or who have been charged with felonies are automatically put through the system, i.e., not just let go with a DAT.

In New York City, if you are jailed, the law says you are supposed to see a judge within 24 hours of your arrest. Sometimes this happens; sometimes it doesn’t. It just depends on how many bodies (that’s what defendants are called by the Department of Corrections) are in the system ahead of you. It’s kind of like getting a ticket at the deli — you’ve got to wait until your number, or in this case, name, is called.

If put through the system — processed and jailed — you’ll first arrive in the bowels of the courthouse, a dungeon-like place with no natural light, then be moved upstairs into a large pen behind the courtroom. Generally it will be chock full of other people also waiting to be arraigned. You’ll have no privacy and sometimes no place even to sit. The floor will be littered with day-old crusts of white bread from discarded prison food and dotted with cockroaches. The smell, enough to knock you over, will be absorbed by your clothes, skin, and hair, and very difficult to wash away when you’re eventually released.

At some point thereafter, you’ll meet your public defender. You’ll be so happy to hear him or her call your name that you’ll want to hug that person but the bars or cloudy plexiglass will prevent this.

A public defender is assigned to every case at arraignment. He’ll carry with him the complaint, an official paper listing the charges against you and sworn to by a cop. It will include a brief description (generally one line or two) describing why the prosecutor believes you are guilty of the crime. It might read: “According to the deponent, a store security guard at Target, the defendant was seen removing headphones from a rack and placing them in his bag. He then attempted to leave the store without paying for the items.”

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He’ll also have your rap sheet and a brief outline of where you live, what you do for a living, and your risk-rating for returning to court, called the CJA sheet. The rubric the Criminal Justice Agency (CJA) uses is a bit old-fashioned and includes items like “has a home telephone” (they mean a land-line), “lived at the address over two years,” or “expects a relative in the courtroom.”

Often the public defender you meet will not want to know if you’re guilty or innocent. He’ll just want to get his notice of appearance for your case into the metal bin already filled with such notices so you might be able to see the judge before court closes for the night (1:00 a.m. in New York City).

You’ll be placed on a pew in front of the courtroom, and will get up from that pew once the bridgeman (the court officer who calls all the cases for the night) shouts out your name. It will feel like being called before the Wizard, except more embarrassing.

The room will be packed with people, many in uniform — police officers, court officers, corrections officers — plus an audience of family members of those waiting to be arraigned, and the stray Dutch or French tourist.

Once before the judge, the charges against you will be read into the record and you’ll hear whether the prosecutor is offering a plea deal or whether bail is being requested. This is the guts of the arraignment. Sometimes it all happens so fast it’s tough to keep track of what’s going on.

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It’s a rather humiliating moment. The bridgeman will tell you to stand next to your lawyer and then ask, “Do you waive the readings of the rights and charges?” Except with his New York accent, it all sounds like one long run-on sentence. Your lawyer will waive that right, as there’s no need to have the charges spelled out on the record since it takes up extra time and you’ve just been told about them in the back anyway.

The prosecutor will then put on the record all the bad things that support why he believes you’re guilty of the crime, in addition to any statement you made to police and whether anyone picked you out in a line-up, point-out, or photo array. He’ll often include other tasty details about the event or your history that might prompt you to think — I did what?

The prosecutor will then argue bail, either consenting to your release on your own recognizance (ROR) or asking the judge for bail. This number is generally ridiculously high, especially considering that most NYC defendants are so poor they couldn’t even afford bail at $50.

The judge then hears from defense counsel, who either proposes ROR or suggests a much lower bail than the prosecutor. In my experience, the judge either adopts the prosecutor’s position right off the bat or strikes a balance between the two sides.

If you’re lucky enough not to be put in jail at your arrest, you’ll simply appear in court on the date listed on your ticket and will still get a public defender assigned to your case. (This is one of the banes of the private criminal defense bar in NYC. There’s virtually no vetting by judges on which defendants deserve free counsel. My theory is there are just too many cases in the system for judges to wait for defendants to hire their own attorneys. Other states do this much more effectively. They actually make defendants fill out financial affidavits or bring in tax forms before assigning a free attorney. Because of this, the private criminal defense bar in those places has an easier time of making a living.)

With a DAT or a summons, you will be arraigned in a similar way to the jailed defendants except you’ll walk to the front of the court from the audience as opposed to the jail cells in the back. Your moment in front of the judge will be brief. All you’ll be asked to do is enter a plea of Not Guilty, unless, of course, you decide to plead guilty if a good deal, like an ACD (adjournment in contemplation of dismissal), is offered. If you decline to plea, you’ll be given a slip of paper telling you when next to appear in court to continue your case.

Don’t forget to come back — or a warrant will be issued for your arrest and you’ll be brought in wearing handcuffs.

This is the drill in New York City. I’m guessing it’s similar in most large cities, give or take the amount of time it takes to see a judge, the cleanliness of the courthouse, and the availability of public defenders.

If you are brought in by police, two reminders: 1) get rid of whatever you can that’s incriminating (knives, pot, fake ID cards) before they arrest you, although preferably not where they can see you getting rid of it, and 2) do not talk to the police! (I can’t seem to say this enough in my columns.)

If you’re among the lucky to be given a summons to return, dress the part. You don’t have to look like you’re applying for a job at a Biglaw firm, but look neat, don’t chew gum, get rid of the any obvious facial or tongue piercings, and again, don’t say anything. Let your lawyer do the talking.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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