Domestic Violence, ICE, and the Presumption of Guilt: How I became “Radicalized” Against the Criminal Justice System (Part Five)
My experiences navigating the abject cruelty of the criminal justice system while representing misdemeanor defendants in the Bronx.
During my third year of law school, one of my courses was a criminal defense clinic, where I represented misdemeanor defendants in Bronx Criminal Court under a student practice order under the supervision of our professor and an incredible organization called the Bronx Defenders. I am sharing some stories about that time. These stories are based on notes, memoranda, and filings that I saved from that time, as well as my own recollection. Names and other identifying information have been changed to protect the privacy of the people involved. You can read previous posts here, here, here, and here.
Olivia was the mother of two children, and had recently separated from her husband, Jerry. According to Olivia, for the duration of her 15 year marriage, Jerry had been both mentally and verbally abusive. She was called a bitch and a slut on a regular basis. Once Jerry told her that if they were still back home, she’d have three bullets in her head. She’d left Jerry after he’d threatened to kill her.
After leaving Jerry, Olivia had endured multiple harassing and threatening phone calls. She sought and received an order of protection against Jerry, which prohibited him from contacting her in any manner. He quickly violated that order by calling her at her job in Manhattan several times. Her boss called the police, who arrested Jerry for Aggravated Harassment.
When I met Olivia, she had been arrested and was charged with three counts of Aggravated Harassment in the Second Degree and one count of Harassment in the Second Degree. The arrest report alleged that six weeks prior to her arrest, Olivia had called the alleged victim on the telephone and threatened to kill him and his girlfriend.
The alleged victim was Jerry.
The same day that Jerry was released from lockup in Manhattan, he traveled to the Bronx, walked into a police station, and made his complaint against Olivia. We obtained the arrest report from Jerry’s arrest from the Manhattan DA to confirm the timeline.
There was no actual evidence that Olivia’s alleged crime actually occurred other than Jerry’s statement to the police. In the six weeks that passed in between Jerry making a complaint to the police and Olivia’s arrest, the police had not actually investigated a single allegation. There was no witness who claimed to see or hear her make the call. There was no recording of the call. The police did not obtain the phone records from either Jerry or Olivia’s phones even though police have long standing relationships with telecommunications companies who are extremely responsive to police investigations. A simple phone record could determine if Olivia’s phone had even used to call Jerry. Jerry had walked into a police station in the Bronx and told officers that the call was made. They neither obtained nor asked for a sworn statement from Jerry. They listened to Jerry, took some notes, and six weeks later went out and arrested Olivia.
At arraignment, the DA offered a deal in which Olivia would plead guilty in exchange for a sentence of Conditional Discharge and a small fine. Given how long these cases could drag on and how disruptive they could be to the defendant’s life, no jail time and minimal fine was a decent offer. We advised Olivia to decline the offer and plead not guilty, which is what she did.
The DA had a bad case and we were ready to fight. But we had an extra reason for declining:
Olivia was undocumented.
As if the banal cruelties of the criminal justice system aren’t enough, undocumented immigrants face even more agonizing consequences from their interactions. If the judge at arraignment had set bail, she would have been transferred to Rikers Island. Back then, ICE agents had their own trailer at Rikers. Once ICE found undocumented prisoners, they were taken into ICE custody and deportation proceedings were initiated. If Olivia had taken the plea bargain offered by the DA, she’d be subject to deportation at any time and lose any chance of eventually getting legal immigration status. If she was deported, she’d be separated from her children for an indeterminate amount of time.
If we could keep her out of jail and win the case however, Olivia might be eligible to obtain legal immigration status under a provision of the Violence Against Women Act, which created a pathway for undocumented women who are victims of domestic abuse to end abusive relationships without fear of deportation. If she had been convicted or pleaded guilty, she would not be eligible for these protections.
At arraignment, I argued that Olivia should be released without bail because she had no record and was arrested as a result of a complaint that was made immediately after she had made a complaint about Jerry. She was released.
Since the police and DA had not even attempted to obtain Olvia or Jerry’s phone records, I subpoenaed them from the wireless carrier. If we could show that Olivia’s phone never called Jerry’s phone, we could request that the DA drop the charge due to lack of evidence. This is, of course, antithetical to the way criminal law is supposed to work. It is the DA and the police who bear the burden of proving the Defendant’s guilt beyond a reasonable doubt. Instead, we were put in the position of proving Olivia’s innocence. While telecommunications companies usually respond to police and district attorney requests immediately, the carriers frequently take months to respond to defense attorney subpoenas.
We planned on playing the waiting game until the subpoenas were answered, but help soon came from the unlikeliest of sources. The Manhattan DA asked Olivia to come down to their office and help them prove their case against Jerry. We agreed on the condition that I could be there to make sure that the statement she would make would not contain anything that could potentially incriminate her in her case in the Bronx. Olivia and I traveled to Lower Manhattan where we met with an ADA in the Domestic Violence division. We worked together to write an affidavit for Olivia that would help Manhattan prove its case against Jerry. In return for our cooperation in Jerry’s case, the Manhattan DA provided us with documentation showing that Jerry’s complaint had been made the same day that he had been released.
We now had two ways to help Olivia. First, I contacted the ADA on Olivia’s case and presented him with documentation showing that Jerry had made a complaint in retaliation to Olivia’s complaint. He agreed to dismiss the case. Then, we helped Olivia find an immigration attorney who would take her case at a reduced rate.
Ultimately, this case had a happy ending. The beginning and middle however, were absolutely brutal. An innocent woman was accused of a crime and arrested without a single shred of evidence and then forced to navigate the justice system of a foreign country just so she could stay in the same country as her two children.
