Assistant Corporation Counsel Jessica Latour paces back and forth in Kings County Family Court judge Mary O’Donoghue’s courtroom, staring down at the frightened witness, a Pakistani immigrant mother of three.
“Your honor,” says Latour, “this goes to credibility.”
The judge nods expectantly.
“Ma’am,” says Latour, “has your son ever thrown snowballs before?” Her voice is shrill. “At anyone? Ever?!”
The witness, stumbling over her words, replies, “Not . . . no, he not throw. He don’t throw them!”
Latour smiles knowingly. ACC Latour believes she has caught the woman in a lie—a transparent attempt to cover for her angelic-looking teenage son, who is accused of waking up early on a snowy Saturday morning to bombard their mentally retarded neighbor. The 40-year-old man was only trying to get his newspaper, he later testifies, when the child’s first snowball met its target. The Corporation Counsel says they were “iceballs.”
Brooklyn kids unlucky enough to get themselves arrested for alleged mischief have always had to deal with Corp Counsel prosecutors in the Kings County Family Court building. Some kids arrested for scarier, brutal crimes are tried as adults in the Supreme Court building on the other side of Adams Street. But in January 2004, the Brooklyn District Attorney’s Office closed its satellite office in Family Court and handed over to the Corp Counsel the cases that fall somewhere between silly and scary. Previously, such cases in the city’s busiest Family Court were sifted through by seasoned assistant district attorneys, who used their judgment to separate the pranksters and tagalongs from kids on the road to lives of crime.
Now that the Corp Counsel lawyers are handling those in-between cases (designated felonies, or “removals” in court jargon), defense lawyers and advocates of children say, Brooklyn’s families are paying the price. Accurate statistics are hard to come by because the change is so recent, but observers say more and more Brooklyn kids are being uprooted from their families and sent to juvenile jails, instead of getting counseling, mentoring, or other attempts at community-based rehabilitation.
Legal Aid veteran Katherine Mullen says the Corp Counsel’s office “thinks ‘designated felony’ sounds bad, so they treat everything very harshly. Sometimes the charges look awful on paper, but when you find out the details you realize the truth is more complex.”
The new group of prosecutors, she says, is eager to point to the number of kids remanded to detention facilities. “Now there is a great emphasis put on statistics and placement,” Mullen adds.
Larry Busching, the Corporation Counsel’s new Family Court chief, doesn’t contest his critic’s observations. But he says there is a disconnect in how the two sides view the role of the state-run detention centers. A prosecutor may recommend that a kid be placed with the state’s Office of Children and Family Services for any number of valid reasons, he says, not simply because he or she should be harshly punished. Sometimes the kid’s home life is unstable and the parents have no control, he says. The structure offered by placement, he adds, can give a delinquent kid relief from physical or sexual abuse.
But using state facilities to foster “discipline” or “good values” has never been effective, says Margaret Loftus of the nonprofit Juvenile Justice Project.
“It’s all very well and good for [prosecutors] to say they are remanding kids for their own benefit,” she says, “but studies show it doesn’t work. Taking kids out of their homes to ‘fix’ them ends up making them worse.”
Busching says he expects criticism from people like Loftus, who used to work for Legal Aid. “It’s an adversarial system!” he exclaims. “Of course the defense attorneys are going to complain. In their best world, every kid would go home. Corp Counsel’s mandate is to prosecute.”
Still, Martin Feinman, the deputy attorney-in-charge of Legal Aid’s juvenile rights division in Brooklyn, points out that New York’s Family Court Act says kid offenders must receive rehabilitative services in the least restrictive environment possible.
“Call it what you like, but these places are fortresses—jails,” he says. “It’s easy to sit in a courtroom or office and forget what it’s like: away from home, being ordered around, locked up.”
Although kids aren’t exactly going to jail for throwing snowballs, it’s close. The vast majority of youths in upstate lockups are serving hard time for nonviolent infractions, according to the nonprofit Correctional Association of New York. Cynics chalk it up to a justice system that needs young bodies—criminal or not—to stay in business.
Brooklyn used to be an exception, say defense lawyers and child advocates, but not any longer.
Insiders say that when the seasoned prosecutors were around, all cases were reviewed through a more discerning lens. There were more dismissals, pleas, and referrals to mentoring programs. While this may not please “get tough” purists, the DA’s wide use of discretion was good for families, say advocates.
“Now there are no more attempts to ferret out true criminal behavior from the rest, so that a 15-year-old isn’t scarred for life by being remanded,” says defense lawyer Ken Jaffe. “Every case is the crime of the century!”
Steven Bernstein, an attorney in private practice, says most Corp Counsel lawyers lack perspective because they’ve never prosecuted what he calls “real” crimes.
“They have trouble differentiating between what’s serious and what’s not,” he says. “They’ll prosecute anything that comes through.” Corp Counsel attorneys, Bernstein says, tend to seek the harshest penalty—juvenile lockup—over less drastic, more effective alternatives.
That juvenile jails fail to rehabilitate is borne out by available statistics. A 1999 study commissioned by the New York State Office of Children and Family Services found that 81 percent of boys and 45 percent of girls released from state lockup were rearrested within three years.
Uprooting kids is not only ineffective, it also damages already fragile communities, says Sam Anderson, education director at the Center for Law and Social Justice at Medgar Evers College. Boys see juvenile jail as glamorous—doing time “upstate” is worth a certain amount of street cred. They come home with tougher fronts and prison values, which rub off on kids who were never troublemakers before. “So many go through the system,” he says, “it has become a rite of passage.”
Family Court is a place where families can be turned upside down after noisy arguments. Difficult kids can be locked up for acting like difficult kids. And if the judge is someone like Mary O’Donoghue, they might get a dose of parenting from the bench.
With the peevishness of a Judge Judy, she interrogates each child on his or her aspirations. Not too long ago, she asked a defendant, “What do you want to be when you grow up?”
The kid, smirking, replied, “A bus driver!”
To which the judge said, “Well, that’s a wonderful aspiration. Do you know you have to be able to read, you have to take a test, to do that? And you can’t be on drugs, right?”
On the other hand, O’Donoghue is just as likely to reprimand an overeager new prosecutor. In a recent case, ACC Craig Hanlon was out of his seat every few minutes while a police officer was being cross-examined by a defense lawyer. Finally, O’Donoghue gently asked Hanlon, “Why do you make so many objections?”
Less than a year out of law school, Hanlon was struck dumb. O’Donoghue then advised him, “Search for the truth.”