Scott Greenfield has an important post this morning about drug courts and, in particular, the one in Greenburgh that operates (well, operated since apparently it's been effectively shut down by New York's Office of Court Administration).
The Greenburgh drug court took a team approach. That is, there was a team that ran it: a couple of judges, a prosecutor, and an authorized lawyer or two. They did everything by majority vote - including decide whether other lawyers could practice there. John Caher in the New York Law Journal tells the whole story and gives the example, which seems to be what got the OCA's attention of what happened to Peter Tilem's client, Brooke Ahern. (Greenfield quotes the story, too - maybe it will go viral).
Mr. Tilem's client, Brooke Ahern, had pleaded guilty before Justice Friedman to petit larceny in August 2010 and was diverted to Greenburgh drug court. In October 2011, pursuant to a bench warrant, Ms. Ahern turned herself in and was remanded without a hearing by Justice Friedman to the Westchester County Jail, records show.
Several days later, Ms. Ahern appeared with Mr. Tilem in Greenburgh drug court, where Justices Forster and Friedman were presiding simultaneously, with one on the bench and the other in the jury box, according to court records.
Mr. Tilem said in an affirmation, supported by a verified petition from his client, that he was told by Justice Forster that he was not admitted to practice in the Greenburg drug court and the matter was adjourned for nearly a month while Ms. Ahern was in jail. Ultimately, a "team" that included the judges and two attorneys, Bernard Bacharach, the primary drug court attorney, and Alan J. Tomaselli, the alternate drug court attorney, voted to permit Mr. Tilem to represent his client, according to court records.
The records show that without a hearing, the team, along with Mr. Tilem, deadlocked 3-3 on whether Ms. Ahern should be immediately sentenced to a year in jail. Mr. Tilem said he voted against putting his client in jail, resulting in a 3-3 tie.
However, he said he was then asked to leave the room, and when he returned learned that his client was to be sentenced immediately.
"Presumably, with me out of the courtroom the vote was 3-2," Mr. Tilem said in his affirmation.
It's not unusual for folks like me to point out cases where courts and such "officers of the court" as prosecutors freely trample on the rights of the people. And what was going on in Greenburgh is really just another instance. More bizarre than some, less than others. It's the Law of Rule rather than the Rule of Law. Of course, there are plenty of courts that don't operate in such lawless (or in some cases openly lawless) a fashion. But in far too many cases, constitutional rights, like the Constitution itself, are considered (when they're considered at all) an impediment to be got around rather than a sacred obligation of our system.
Greenfield's point is that while the Greenburgh drug court may be an outlier, every drug court operates on the principle that while the goal is rehabilitation, the requirement is that constitutional rights must be surrendered. There are variations, but the general pattern is that you plead guilty to the charges and then everything is held in abeyance while you do court or probation ordered counseling and penance and agree to lots of Fourth Amendment violations and if you don't screw up for the requisite period of time the plea goes away. But if you aren't perfect (or sufficiently perfect), well, you had your chance. As he concludes,
[I]t's still a trade-off of constitutional rights for drug treatment.
I understand that the first step to recovery, they say, is acknowledging a problem. And I understand that the drug courts are, well, courts. Despite good intentions about rehabilitation, they operate in the midst of the criminal justice system (and of course as part of the war on drugs) where the first order of business is to convict and where the assumption is that rehabilitation is at best ephemeral.
And again, there's nothing new here.
Except that they got caught.
After exacting how much damage on how many people over how long a period of time, we'll likely never know. And mostly won't care.
Because, after all, Peter Tilem went from Greenburgh to the Office of Court Administration with a complaint. And OCA did its thing and pulled the plug on Greenburgh.
The Constitution saved.
And the lion did lie down with the lamb.