Getting the memo …

… or how to get your case dismissed in NYC Criminal Court in three easy lessons …

So the day had come for me to return to New York County Criminal Court to finally get my charges dismissed for the arrest I suffered while photographing Occupy Wall Street’s anniversary protests on September 17, 2012. How I ended up in this situation you can read here and here.

My lawyer, lead counsel for the National Press Photographers’ Association Mickey Oesterreicher had, as he put it, “found a live one” at the District Attorney’s office, meaning a member of District Attorney Cyrus Vance’s staff who agreed that there was no point in pursuing my case further given the underlying set of circumstances, and to allow dismissal of my case at my next court date, slated for February 14, the day now best known for celebrating those we love.

I didn’t feel the love much, however, as I arrived in court still reeling from having a gun pulled on me in broad daylight the day before by three men engaged in a nasty fist fight on a Brooklyn bus. Things didn’t much improve when I was called up to the bench, fully expecting to have my case dismissed, yet heard the Assistant District Attorney present say instead “the people are offering an ACD in this case.” ACD stands for Adjournment in Contemplation of Dismissal, usually coming with conditions of 6 to 12 months during which one cannot get rearrested or face the original charges. While technically not placing a defendant on probation, this legal proceeding does serve as a chilling effect on those issued such orders, as during a second arrest the original charges could be combined with whatever the second arrest brought about into a more severe judgement.

First thinking I didn’t hear correctly, I looked over and saw that my attorney, Jonathan Wallace from the National Lawyers Guild, who had agreed to stand up with me for the dismissal, looked equally perplexed and started to argue with the judge that this was not what we were lead to expect as the outcome of this proceeding. The ADA denied any knowledge that this case was to be dismissed, stating that she didn’t have a note to that effect in her file. My attorney requested a second call, which clearly annoyed the judge who accused him of being ill prepared, but she granted it. I think it seemed obvious that we had been surprised.

We quickly left the court room and both hit the phones, Jonathan communicating with NLG headquarters, and I contacting Mickey Oesterreicher to understand what had happened. I had just learned that a note had been sent but may have gotten lost when we were called back on a rush into the courtroom for our second call. The ADA again insisted that all that she had to offer was the ACD, that she had spoken to the attorney in the trial bureau who was assigned my case, and said that he was absolutely not going to dismiss the case. So, we pleaded no disposition and left the court expecting to file a motion to dismiss to maybe get this resolved at the following court date, now set for April 1st, the irony of the date not entirely lost on me; nor the fact that on this date Occupiers are preparing some protest marches and other actions. Keeping witnesses and key organizers away from Occupy events by tying them up in court on those dates is a tried and true tactic employed by the New York County courts.

Walking out of the court room I couldn’t help wondering if the ADA might have pulled a fast one on me and his boss, the head of the trial bureau in the District Attorney’s office, who had agreed to dismiss the case. In relations to Occupy-related court proceedings, keeping a bullshit arrest alive in court with a jackass move would have only been par for the course. Still that thought doubly disappointed me, because obviously now my court follies would drag on, and I would loose even more work days over an arrest that in my opinion had no justification in the law, but also because I frankly do have higher expectations in an public servant charged with upholding law and public interest in the place I call home, no matter what the circumstances may be that bring me to stand on opposite sides of the bench with him. Now, to the ADA’s defense, it may have really just been a case of a notice of dismissal getting lost on the way from the trial bureau to the court room, but it seemed a little odd how quickly we were called back for our second call. Usually one goes to the bottom of the pile in such instances and often spends hours waiting for the return call. The way the presiding ADA insisted in offering me that ACD, it struck me that they really, really wanted me to take it.

Once outside the courtroom, I called back Mickey Oesterreicher to break the unhappy news to him, but he refused to let go. He pleaded with me not to leave and he’d be back with me. So I waited a short while, in which my attorney had wandered off to tend to another case he was handling in the court house that day. When Mickey called me back, I learned that a copy of the notice for my dismissal was now being walked over to the court house on behest of the head of the trial bureau, and I should give his name and phone number to the ADA if she had any issues with that. So, I had to reconnect with my attorney, get him to convince the ADA to call us back for a third time, and hope the note would arrive before that happened. Jonathan was shaking his head, saying that a third call and such a chaos over a dismissal of a disorderly conduct charge was something he had never experienced in his twenty years of legal practice in New York.

As we stood up for our third call, the judge, now fuming, was regaled with the fact that while the ADA still believed my arrest was justified, she had “received information that I was working as a member of the press that day and therefore she would move to dismiss the case.” The judge immediately granted the request, if for no other reason than to finally have us go away and not come back before her. She didn’t seem at all happy about how this entire morning went down, and I can’t say I blame her.

Even though I ultimately got what I had come for, the process as it presented itself to me deeply concerns me. I was fortunate enough to have two committed lawyers working my case, one on the ground with me pushing through call backs until we got it right, and the other working the back room getting the paperwork sorted. Only thanks to that did I get this matter resolved the same day and in my favor. If we do believe that justice is blind to special circumstance, it cannot be a function of whom my lawyer knows and has a phone number for to get the proper procedural treatment in court. Irrespective of the question whether my arrest was justified or not, once in the trenches of the court system, it shouldn’t be about whom you know, but about why you are here and what you have to say in your defense.

Maybe I’m naive to expect I might find actual justice inside a court house, but I grew up with the image of America as the beacon of justice and liberty, for all the world to see and follow. For me to finally catch a glimpse of that making a fleeting appearance along the corridors of 100 Centre Street, it required the dedicated wrangling of two highly experienced and well connected attorneys. Land of the free, is that what you’ve come to?

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