This story was published in partnership with New York Focus, an independent, investigative news site covering New York state and city politics. Sign up for their newsletter here.
In late June, a New York appellate court issued a landmark ruling intended to prevent people from being needlessly rendered homeless or separated from their families during their criminal cases. But a month later, the ruling is getting neutralized by the court system, defense lawyers contend.
The fight centers on orders of protection that judges routinely impose on defendants, commanding them to stay away from people to whom they pose a potential threat.
In a June 24 decision in a case known as Crawford, a state appellate court held that when a proposed order of protection threatens to deprive defendants of “substantial” interests — such as access to their home or children — a court should conduct a hearing shortly after the order is issued to determine whether it is truly necessary.
The ruling was widely perceived as a game changer. “A Judge’s Order Left Her Homeless. A New Ruling Will Help Others Like Her,” read the headline of an article in the New York Times recounting the saga of plaintiff Shamika Crawford, who had been barred from entering her Bronx home following a complaint from her boyfriend.
Defense attorneys say the ruling provides a long-needed change to a status quo in which judges routinely issue orders of protection at prosecutors’ request, without fully considering negative consequences for defendants.
“These orders have been rubber stamped by the courts without any opportunity for defendants to contest them,” said Meghna Philip, an attorney with Neighborhood Defender Services. “Our clients are displaced from their homes, unable to see children or spouses, or provide care for their elderly parents.”
Defense attorneys had hoped for an end to such ordeals — and some have successfully asked judges to reconsider harsh restrictions. But in the weeks since the ruling, they say, many judges have barely budged, effectively denying people like Crawford their new right to a review.
Judges may be taking cues from a memo produced by the agency that runs New York’s courts, the Office of Court Administration.
Addressed to court administrators by a counsel for the court system, the memo emphasizes — using bold type — that the decision “should not be read as to require live witnesses and/or non-hearsay testimony.” That gives judges the option of holding a hearing that simply uses the evidence prosecutors already presented in their case.
The memo goes further to discourage judges from permitting witness testimony — saying that “anything approaching a full testimonial hearing” would be more than courts can bear, with “significant negative operational impact.”
“The memo is this kind of ahistorical effort to… instruct trial judges to take the most restrictive reading of the decision, whether that reading is actually supported by the case or not,” Jonathan Oberman, a professor at Cardozo Law School who specializes in criminal law, told New York Focus.
Lucian Chalfen, a spokesperson for the Office of Court Administration, responded that it’s “normal practice to issue memos with context on cases that have potential significant operational impacts on the courts.”
Some attorneys have experienced success using the Crawford ruling on behalf of their clients. “I got all these emails back from lawyers who said, ‘Oh I used it, it’s great!,’” Legal Aid attorney Corey Stoughton told the New York Times.
And in other cases, the ruling had led some prosecutors and judges to “think twice” about requesting and granting orders of prosecution, Philip told New York Focus.
But defense attorneys practicing in multiple boroughs told New York Focus that judges have been applying the ruling in a highly limited fashion, if at all.
“What we’ve seen so far is troubling. There is a legitimate worry that the Crawford ruling is not being followed, at least early on, in Kings County,” said Matt Robison, an attorney at Brooklyn Defender Services. Defense attorneys practicing in Queens, Manhattan and the Bronx expressed similar concerns.
Homeless by a Judge’s Order
Crawford was left homeless for nearly three months when a judge issued an order of protection against her after her boyfriend accused her of assault. The order barred her from her own apartment and prevented her from seeing her two children. It was lifted when the criminal complaint against her was dismissed — as most cases involving orders of protection eventually are — 88 days later.
Crawford and her legal team sued the judge who issued the order of protection, arguing that the court should have held a hearing to determine whether the move was necessary, rather than simply deferring to prosecutors’ requests.
“There are certainly situations where full orders of protection are warranted and necessary, but it cannot be the default, because there’s too many devastating consequences that flow from that,” said Eli Northrup, Crawford’s lawyer and an attorney at Bronx Defenders.
In a unanimous ruling, a four-judge panel held that not only should a judge have held a “prompt” hearing on whether to continue the order of protection, but that all trial courts in New York state should do so in similar high-stakes situations.
“If it is not not scuttled by the courts, this is a significant effort by the First Department [appellate court] to rebalance rights of indigent people that had been really trivialized by the wholesale issuance of orders of protection,” Oberman said.
A Vague Ruling
The appellate court declined to detail what the hearings reviewing orders of protection should look like — opening leeway for the Office of Court Administration to issue its own guidance to judges on how to conduct such hearings.
The memo is dated June 27, just three days after the Crawford ruling was issued.
The memo — which Oberman called “among the more explicitly cynical responses that the court administration could make” to the ruling — serves to limit the scope of the ruling in Crawford’s case.
By stressing that witness testimony is not needed, the memo’s take on the Crawford ruling gives judges leeway to accept a prosecutor giving a secondhand account of alleged actions, or an uncorroborated police report of an incident, as enough to show an order of protection is warranted.
Kate Mogulescu, a professor at Brooklyn Law School, raised doubts about whether using uncorroborated police reports to argue for an order of protection complies with the spirit of the decision.
“That’s just restating the facts that are usually recited in the [criminal] complaint. That doesn’t seem to fill the role that the Crawford court is envisioning,” she said.
Consistent with the memo, judges have held that presenting criminal complaints or police reports is sufficient to satisfy Crawford’s requirements in multiple hearings since the decision was issued, defense lawyers said. At one hearing held in Bronx Criminal Court and attended by a New York Focus reporter, a judge explicitly denied that witness testimony was necessary to meet Crawford’s demands.
The memo also contends that the hearing mandated by the Crawford ruling can be conducted at arraignment, the initial stage of a criminal proceeding at which a judge has a first opportunity to issue an order of protection.
But the speed at which arraignments are conducted by New York courts — usually within minutes — would make conducting in-depth hearings at that stage in a criminal proceeding impractical, if not downright impossible, Northrup said.
“That’s the problem Crawford is trying to address. We understand arraignments is a really hectic time. You need to have a prompt evidentiary hearing right after to make sure that [an order of protection] is warranted,” Northrup said.
Kim Barr, an attorney at Queens Defenders, said that within days of the Crawford ruling, she faced a judge who attempted to get the required hearing over with at arraignment.
Her elderly client, who uses a wheelchair and is medically infirm, had been accused of misdemeanor assault and harassment by his girlfriend, with whom he shared an apartment leased in his name.
The judge was considering issuing a full order of protection, which would have resulted in Barr’s client being denied access to his home.
When Barr requested that a hearing be scheduled, the judge contended that the arraignment itself was the hearing mandated by the Crawford ruling.
“Her immediate response was, ‘This is the hearing, the defendant is not entitled to an additional or separate hearing, I’ve reviewed the defendant’s rap sheet and the allegation before me, and I’m issuing the full order,’” Barr said.
A full order of protection was issued against Barr’s client, who was banned from his home and is currently awaiting trial while living at a veterans’ homeless shelter. He has not been given an opportunity to contest the full order of protection since the arraignment, Barr said.
Robison also described an arraignment judge recently outright denying a request for a hearing when an order of protection threatened two of his clients’ ability to see their children.
While the judge did provide for a way the clients could see their children without violating the terms of the order, no Crawford hearing was scheduled.
“The fact that the judge was unwilling to grant the hearing was of great concern,” Robison said. “Given what information was presented to the court, and what was at stake — a parent’s ability to see their children — Crawford was certainly implicated.”