It is no secret that the COVID crisis poses a risk to criminal defendants, particularly those who are incarcerated or come from at-risk groups.  It is also no secret that the New York’s Office of Court Administration (the “OCA”) has been pushing hard to “return to normalcy,” in part to make sure that cases of all kinds, including criminal cases, don’t linger and create an insuperable backlog.  We covered the court re-openings here, here, and on our COVID-19 resource page for New York lawyers.   

On July 7, 2020, the OCA announced that it was returning to in-person court appearances in criminal cases the following day.  This came as a complete surprise to New York’s public defense bar, which had been in negotiations with OCA about this, had hired an expert to consult on the risks of a return to in-person appearances, and had not yet received the expert’s conclusions.  The public defenders feared for the safety of both their clients, their lawyers and court personnel, given that jails (where many of their clients have been awaiting trial for months) are breeding grounds for COVID. 

OCA refused to delay.  On Tuesday, July 14, 2020, six of New York City’s most prominent public defense organizations – The Brooklyn Defenders, The Bronx Defenders, The Legal Aid Society,  The Neighborhood Defender Service of Harlem, The New York County Defenders and The Queens Defenders – filed suit in the U.S. District Court for the Southern District of New York.  The lawsuit argues that OCA’s plan violates the Americans with Disabilities Act (ADA) by depriving thousands of people who have medical vulnerabilities or other disabilities the opportunity to seek and help develop necessary accommodations from the Court and thus forcing people to choose between their health and possible incarceration for failure to appear. The suit also alleges various state and federal statutory and constitutional violations.  According to a public statement from Justine Olderman, Executive Director of The Bronx Defenders, “OCA’s policy does not consider a persons’ disability, does not provide enough advanced notice, and does not provide reasonable modifications, including the option of virtual court appearances.”

The case was assigned to the Hon. James Carter.  The plaintiffs sought an immediate Temporary Restraining Order.  The motion was denied, but was immediately converted into a preliminary injunction motion that remains pending.  Meanwhile, according to some reports, the in-person appearances continue, even of ill and at-risk people.  We will report further as the case develops.