Brooklyn’s Project Clear - The Birth of a Lawyerless Transaction in a Criminal Case in the United States of America.

Project Clear is a new policy out of Brooklyn where the District Attorney’s Office offers to settle criminal cases of some people arrested for crimes who qualify for Desk Appearance Tickets. In general, the settlement offer from the DA’s Office involves the arrested person agreeing to participate in assessment based services. Upon successful participation in the services, the District Attorney’s Office agrees to decline to prosecute the criminal case further, and the matter is dismissed and sealed. The case therefore never makes it to Court.

This offer of settlement in a criminal case to a person arrested for a crime is made by the Government directly to the arrested person, without regard for whether the arrested person has counsel, and there is virtually no effort made to encourage those arrested for crimes to obtain counsel prior to deciding whether to participate in Project Clear.

I believe that while some of the underlying motivation behind programs like Project Clear is unquestionably good and kind (the motivation to help people who suffer addiction to drugs), these types of programs (lawyerless transactions in the criminal justice system) raise substantive legal and Constitutional issues that have either not been considered or unwisely ignored.

The problem comes from the fact that this good and kind program is triggered by a serious event implicating important rights of Constitutional dimension as well as implicating several more practical concerns : an arrest for a crime.

In this instance, the Government wants it every which way. The Government wants to arrest people and charge them with crimes, but it also wants to help people who may well need help. Both of these desires are of course legitimate, but it is hard, I think, for the Government, by itself, in this particular way, to do both things in a manner that gives full meaning to the Constitutional and legal implications of the arrest for a crime.

Right off the bat, of course, it is tempting to hear the words "Desk Appearance Ticket" and assume that I must be being overly dramatic. Many people, especially those who receive DATs, fixate on the word ticket and simply assume that this thing they have is like a parking ticket and is therefore as trivial as a parking ticket.

People also think things like “just a low level misdemeanor”. But saying the words “low level” before the word “misdemeanor” doesn’t mean anything other than that there are more serious crimes on the books. (Robbery in the third degree is a low level robbery. So what?) It doesn’t change the reality that a misdemeanor is a crime and that conviction for a misdemeanor gives you a criminal record. (Imagine saying that you have an ugly painting or that you have a painting that isn’t worth very much. It is still a painting.) Tell your prospective employer that while you do have a criminal record, it is for “just a misdemeanor”. See what that gets you in today’s competitive job market. Tell Immigration that your conviction is for “just a low level misdemeanor” and see whether that saves you from immigration consequences.

People have a hard time even believing that they have been arrested when they get “DAT Tickets”. In part, this is fueled by a seemingly common practice among NYPD officers and Detectives to wrongly tell people that they aren’t being arrested, they are “just getting a DAT”. I can describe this practice with confidence because I have had to undo this bit of misinformation so very many times in conversations with people who have been given DATs.

But the simple fact of the matter is that if a person gets “just a DAT” and gets charged with “just a low level misdemeanor”, this person has been charged with a crime by the Government, an event that could in theory lead to conviction for a crime and a sentence of jail.

So the question becomes, when this arrest event happens, and a person is facing prosecution by the Government, which prosecution carries such serious potential consequences, should this person seek legal advice? Is legal advice in this situation a kind of optional, “if you want to be a pain in the neck about it” kind of thing, or shouldn’t anyone who isn’t himself or herself a criminal lawyer at least seek some sort of basic legal advice?

The hard reality, despite the given truth that programs like Project Clear are thought up and supported by wonderful, well-meaning people, is that once the Government undertakes an arrest, the Government is the adversary of the accused. Period.

Instead of pretending that a person who gets a DAT that would be eligible for Project Clear is “only charged with a low level misdemeanor,” let us frame such a person’s position in more carefully crafted legal terms. In legal terms, the summary of Project Clear is that a person is arrested, charged with a crime carrying potential punishment of one year in jail, and ordered to appear in Court on pain of a warrant being issued. In this circumstance, then, without the automatic intervention of counsel or any automatic independent legal advice, the Government approaches its new adversary with an offer of settlement of the criminal case it has just brought. Further, it is the Government that undertakes the job of explaining this offer.

Framed in this way, which is the reality of it in terms of legal significance, it is ludicrous to conclude that no legal advice is necessary. Ask any Judge, any criminal lawyer, any prosecutor, any person who supports Project Clear, whether they would seek legal advice for a loved one arrested for anything. How many would say, “No, if my son gets arrested, I’ll just let it ride and see what happens. No legal advice needed.”

This situation, where the same Government that arrests you then comes to you with an offer to settle the case is not substantively different from a Detective, post arrest, advising a suspect to speak to him without a lawyer because if he does, the Detective just might decide to let him go. Go right ahead, Mr. Suspect, talk to the nice Detective. If you just tell him the truth, he might void the arrest, or he might tell the Judge you cooperated so that the Judge will go easier on you. There is absolutely no legal difference between Project Clear and this scenario. The only differences are that Project Clear involves “just low level misdemeanors” and is probably more likely to deliver on the promise. These are hollow differences of little comfort. As a criminal defense lawyer, I believe that being arrested and charged with a crime is serious. The Constitution believes it is serious too.

There is some suggestion that The Legal Aid Society or other indigent defender organizations may be “available” in some unspecified way. The involvement of these organizations suggests that they approve of this potentially lawyerless transaction in the criminal justice system, in the sense that they make themselves “available” somehow, but only if the arrested person thinks it is necessary. I find this position of the assigned defender organizations surprising, although I think I understand the motivation to get cases dismissed for potential clients. It seems so nice and good.

I find the willing participation of The Legal Aid Society and other defender organizations surprising because this loose “availability” of a lawyer along with the implication that legal advice might not really be necessary even though there has been an arrest for a crime is directly in opposition to their own advice they post on the internet for the world to view.

Here are excerpts from how The Legal Aid Society publicly answers the question, “What should I do if I am arrested by the police?"

…Look around to see if there are any witnesses and ask for a lawyer. Do not make any statements. Remember that you have the right to remain silent and to consult with a lawyer. Give the police your name and address, but do not give any explanations, excuses or stories about the matter for which you are being arrested. You can make your defense later in court, after consulting with your lawyer. If you have a lawyer, ask to see him or her immediately. If you can’t afford a lawyer, you have a right to have one appointed when your case goes to court. You can ask the police to contact a lawyer, but remember not to say anything without a lawyerRemember not to make any statements or decisions without talking to a lawyer first.

This is a quote from a “Know Your Rights” page posted on the internet by The Legal Aid Society here.

So when a person is arrested, according to The Legal Aid Society, “no decisions” should be made without talking to a lawyer first. By “no decisions” then, I guess The Legal Aid Society means “mostly no decisions”, because their glowing praise for Project Clear suggests that they are more than happy to witness a lawyerless transaction like Project Clear spring into being.

In a press release from the Brooklyn District Attorney’s Office about Project Clear, The Legal Aid Society allowed itself to be quoted singing the praises of this new lawyerless transaction in the Criminal Justice System:

Dawn Ryan, Attorney-In-Charge of the Brooklyn Criminal Defense Practice at The Legal Aid Society, said, “We laud this announcement from Brooklyn District Attorney Eric Gonzalez that prioritizes treatment over incarceration. Our clients and others suffering from addiction are best served from diversion programs that lead to self-sustaining lives. Addiction should be met with compassion not prosecution. The Legal Aid Society implores New York City’s other District Attorneys to take notice of these effective and progressive alternatives.”

Press Release March 6, 2018 from Brooklyn DA’s Office

I suppose we are to take comfort from the knowledge that advice is “available” (how, when, where?) to the subset of people who have the presence of mind to follow The Legal Aid Society’s advice posted elsewhere on the internet that “no decision” about a criminal matter should be made without consulting a lawyer.

But I wonder what “available” legal advice means exactly, and equally important, how this availability is communicated.

I can’t claim to have conducted a scientific study, but having spoken to hundreds and hundreds of people who have gotten DATs, I can tell you that a great many of them tell me that the police have advised them that they didn’t need a lawyer because it was “just a DAT.” In that context, where there is what I believe an institutional attitude affirmatively discounting the need for legal advice even apart from Project Clear, the notion of “available” legal advice being communicated in a real way in this context seems unlikely.

I have seen a letter making a Project Clear type offer from a similar program in Manhattan, and the letter does not mention the word lawyer or attorney at all. Certainly, to my knowledge there is no lawyer stationed at the Precinct to advise people before they engage in conversations with the Government and it’s agents.

More likely, the arrested person will be told about this wonderful opportunity to have his or her case dismissed before it goes to Court. This opportunity for the police to act as social workers and referrers to drug counselors provides police an excellent cover to obtain uncounseled statements from suspects in pending criminal matters. (Remember how this situation is similar to a Detective telling a suspect that if he talks to him without a lawyer it will be better for him.) Further, I can only imagine what the reaction (in the real world, as opposed to what is supposed to happen) would be at the smallest hint of an expressed desire to consult a lawyer. “We are giving you a chance to have your case dismissed. Why do you need a lawyer [you idiot]?”

The truth is, of course, that you need to talk to a lawyer to know whether the deal offered by the Government will be good for you. Leaving to people who are inevitably going to be “encouraged” not to bother will inevitably mean that some people, even most people, will probably never talk to a lawyer. These people will negotiate their own settlements with the Government that just arrested them.

All that I am saying is that every person that the Government bothers to arrest for a crime ought to have some minimal contact with a lawyer who will explain their circumstances. Every person charged with a crime ought to have a conversation about the nature of the offense charged, what sort of evidence the Government would need to prove the case, the potential consequences of the arrest, both within the criminal justice system and without the criminal justice system. In many cases there are potential consequences of even an arrest in areas such as employment, school, and immigration for non United States citizens.

Every person the Government charges with a crime ought to have an attorney provide information about potential Constitutional issues in the case. For example, especially in drug possession cases, there are frequently issues of search and seizure in play. Who is going to advise people as to the existence of such issues in their cases and of the potential for these issues to severely diminish the ability of the Government to obtain a conviction? Are the police going to tell the people they arrest, “Hey I really didn’t have sufficient justification to order you to open the trunk of your car, so if you press the search issue and a Judge agrees, the case will likely be dismissed.”

Now to be sure, many people who are advised that they may have Constitutional issues in their cases will choose to forgo those issues in favor of a favorable settlement. But people properly advised about their legal position at least have a choice. People who are not criminal lawyers generally have very little accurate understanding of Constitutional issues such as search and seizure. Without some basic review by a lawyer, people will not even know that there is a choice about how to proceed.

Similarly, people who don’t have some minimal legal analysis applied to their cases will not have an independent assessment of the strength of the Government’s case. Maybe the case against the person is preposterously weak, but a person who isn’t a lawyer has no idea. Ought not a person accused of a crime by the Government at least have some basic analysis of his or her case so that the choices made about how to proceed are fully informed?

Isn’t it a bit paternalistic to simply make the systemic decision that “We know what’s best for Project Clear candidates and they don’t necessarily need to have even a minimal legal review of their situations?

The funny thing is that there is an easy, time tested, Constitutionally sound solution to this lawyerless transaction.

It is called arraignment.

All that needs to be done to fix this is to take advantage of the system that is already well in place.

Here’s a wild idea: Don’t offer Project Clear until arraignment on the Desk Appearance Ticket.

This simple solution undoes everything that is wrong risked by Project Clear and the other similar lawyerless processes in New York City. By forcing there to be an arraignment on the DAT, which is the natural next step in the criminal justice system after someone is arrested for a Project Clear eligible offense, this means that a lawyer will be involved and every person will have legal advice about their criminal cases without question. Either a person who has means to hire a lawyer will hire a lawyer and get the necessary legal advice by arraignment, or the person who is indigent will be assigned a lawyer at the DAT arraignment. Everyone who is arrested gets legal advice before settling her case and there is no doubt about whether or not a person who should have taken advantage of “available” legal advice, actually did.

Is this so terrible?

If the Government wants to offer the ability to have a case dismissed and sealed upon participation in assessment based services, this offer can be conveyed to a criminal lawyer who can then properly explain it to the client. This same lawyer can provide the client a professional assessment of the case, any constitutional issues that might be present, and also make sure that there isn’t some peculiarity in the client’s circumstances that would make Project Clear a problem.

And if the Government claims that by declining to prosecute the case, they have made some benefit available to people that would not occur if the case is dismissed out of Criminal Court, then perhaps the Government shouldn’t be arresting people in the first place for these offenses. This notion suddenly causes people to back off the “just a low level misdemeanor” position. Faced with the prospect of not making an arrest, it suddenly becomes more serious. And there it is.

If it is serious enough to make an arrest, it is serious enough to have an arraignment in Criminal Court.

People who appear in Court for arraignment on DATs get the legal advice they both deserve and need after they are arrested. Of the people who accept Project Clear, who knows how many of them bother to get legal advice, even though it is “available”. The question is whether or not it should be left to uninformed non-lawyers, in the absence of counsel, and in a context where a clearly tempting offer is made to them by the same Government that arrested them to make the effort to take advantage of the “available” lawyers or to contact private lawyers if they are not indigent.

This really isn’t, or shouldn’t be, a conundrum. So, in addition to the good and kind motive to help people with addiction issues, what is the motivation to turn this into a lawyerless transaction? Why transform a system where every single arrested person receives the benefit of a lawyer into a system where getting legal advice becomes an issue of whether the arrested person understands how important it is to get legal advice?

I would say one possible motive would be money. This is a train that’s never late.

The DAT courtrooms have historically dealt with a great many cases like those that Project Clear targets. Every case on the calendar, I suppose, to the Court system, represents a cost. In a kind of bigger financial picture, more DATs, means greater costs. If you were trying to cut back on the costs of managing a large number of cases in the NYC Criminal Courts, one way to do that would be to invent some way to make fewer cases. Since the Court pays the organized defenders on a per case basis, I believe, eliminating substantial numbers of cases from ever hitting court, means that the amount the Government will need to pay the organized defenders will diminish accordingly. Further, the DA’s Offices will have fewer cases, and the Court will have fewer cases. Fewer cases means less money.

But the arrests stay the same, and you get to eliminate pesky lawyers from the equation. It’s a win/win for everyone…

Everyone except people accused of crimes.

And that's the sort of scary part to me, as a criminal defense lawyer. To be a little dramatic about it, criminal defense lawyers represent the last line of defense against the potential for Government tyranny of its citizens.

Eliminating criminal lawyers from criminal cases, even "simple" cases,” even though some legal advice may be "available" seems more than a little frightening to me.

Don Murray, Esq.


Don Murray is a founding partner in the New York City criminal defense law firm Shalley and Murray. Mr. Murray has been defending people accused of crimes in New York City for more than 27 years. If you have been arrested and would like help with your case, call or text Don Murray at 718-268-2171.