De Blasio and Shea discuss public safety (photo: Ed Reed/Mayor's Office)

Mayor Bill de Blasio and Police Commissioner Dermot Shea are marooned on an island with few substantive details to sustain their claim that one of the biggest drivers of New York City's recent increase in gun violence is a pandemic-stalled court system.

The two have repeatedly offered largely unsupported claims that the coronavirus-related suspension of grand juries and a slow-down in gun offense prosecutions has made the courts a major contributor to the surge in shootings throughout the city over the last several months. But representatives from the state courts, district attorney offices, and public defender services have all refuted the administration's claims, while available data paints a somewhat murky picture.

On Monday, the mayor published an open letter to New York Chief Judge Janet Di Fiore and the city’s five district attorneys in which he urged them to work with the city to "do much more," and said he would be reaching out to arrange a meeting with all parties.

Convening grand juries again, which had been halted to prevent the spread of COVID-19, "is important progress, but we will have to do much more in order to reduce the backlog of cases that have, for the most part, been held in abeyance for several months — delaying justice for victims and accountability for perpetrators," de Blasio wrote.

From June 22 to July 19, there were 328 shootings incidents in New York City, more than three times the number in the same period last year, according to CompStat, the NYPD's crime tracker. Over roughly the same 28-day period, even with so many more shootings, gun arrests have dropped by about two-thirds from 2019. The mayor has blamed the uptick on "massive societal disruption" triggered by the coronavirus pandemic and its fallout, regularly pointing to a court system that “is not functioning” and emphasizing the lack of grand juries and gun prosecutions. But he has been vague on specifics and has dodged questions about the falling arrest rate.

"It's a pretty few places where we're seeing the uptick, a relatively few people causing the violent crime. We're going after them," de Blasio said on CNN Thursday after questions about the increased shootings and decreased arrests. "We need them prosecuted again. That's the big missing link here because we can't get them off the street if there's not prosecution and the court system functioning."

"We know we don't necessarily need more gun arrests, we need the people that are caught to be prosecuted fully, and then we need the court systems open to get them off the street as quickly as possible," Shea said, seated next to de Blasio at a press briefing on July 17, where they announced an anti-gun violence campaign focused on increasing patrols in high-shooting areas, organizing gun buy-backs, and better deploying the Community Affairs Bureau.

Until recently, de Blasio has largely credited growing joblessness and the upheaval of daily life for the recent violence, while also repeatedly mentioning the courts. Shea has gone further by explicitly blaming recent bail reforms and COVID-related jail releases, which have been backed by the mayor for the most part. The state of the court system is their major area of agreement in explaining the recent gun violence, even as they continue to publicly butt heads on new police reforms backed by the mayor.

Lauding the police department's "precision policing," which focuses on rooting out a smaller number of individuals who officials say are responsible for most violent crime, de Blasio and Shea have blamed the courts and the prosecutors.

"When those courts are opened up, we have a line of cases ready to get the most violent people off the streets. We need the court's help," Shea said at the July 17 press conference.

In an open letter to Chief Judge Janet Di Fiore and the five district attorneys released Monday, de Blasio said 2,000 people had been charged with firearm offenses in New York City, but only about half had been indicted by a grand jury -- a point he and Shea have made before.

Yet the Office of Court Administration, a state entity, insists that the courts have remained open virtually, and district attorneys and public defenders say arraignments have continued by video conference.

Governor Andrew Cuomo has suspended some elements of the Criminal Procedure Law, including the convening of grand juries, as part of the state's emergency response to the virus. But public defenders say no grand juries only means people accused of violent felonies have fewer avenues to be released from jail while they await the administration of justice.

"The idea that a lack of grand juries is somehow increasing shootings is utterly absurd," said Alice Fontier, managing director for Neighborhood Defender Service of Harlem, in an interview. "To the extent that the court is not functioning to its full capacity, the result is more people being held in jail than previously would have been."

Grand juries are a constitutional protection that give defendants a chance to have their case thrown out before trial if prosecutors can't show probable cause. In the pandemic, that ability was suspended and only later replaced with a judge's discretion in preliminary hearings where minimal evidence is presented, according to Fontier and other defense attorneys Gotham Gazette interviewed.

Before the pandemic, when a person was arrested for an alleged violent felony, they would be arraigned -- meaning they are formally charged -- and a grand jury would review evidence to decide whether the case would proceed toward trial or be dropped. If the decision was made to indict, the defendant would remain in jail unless bail was set and paid. If the decision was made not to indict, the case was closed and the accused would go free.

During the state of emergency, arraignments have continued and judges still set bail. But with grand juries suspended, the opportunity to get out of jail before trial without taking a plea deal or paying bail has disappeared, multiple public defenders said.

In the past, if a grand jury wasn't convened within five days of an arrest -- which was not uncommon if prosecutors couldn't line-up witnesses or evidence in time -- the defendant would be released under a state statute known as Section 180.80 while their case proceeded. That provision was also suspended by Cuomo's executive order, leaving individuals to take a plea deal, pay bail (if bail is set), or sit in jail, according to the defense attorneys.

"In fact the right to get out based on whether or not a grand jury has indicted you is also suspended as long as they have what's called a preliminary hearing," said Lisa Schreibersdorf, executive director of Brooklyn Defender Services. At preliminary hearings, which are being conducted virtually, a judge decides whether there is probable cause to proceed to trial, she said.

"Right now just based on the prosecutor’s charge and the judge saying that feels like a bail case, people are held on bail," Fontier said. 

"And there is no grand jury review, so it's all prosecutors and judges who are deciding who is in jail and who is not," she added.

Since the mid-March state of emergency, the New York City Criminal Court has held nearly 19,000 arraignments and over 600 felony preliminary hearings, according to the Office of Court Administration. Virtually all gun possession and use cases are felonies, according to prosecutors and court representatives.

"Although we share your goals of a safer and stronger city, your plea for a 'functioning and open' court system wholly ignores the reality that the courts have not only always remained open, but have excelled and adapted in ways that were unimaginable only a few months ago," wrote New York Chief Judge Janet Di Fiore in a letter to de Blasio on July 16 (the letter was first reported by The New York Post).

But a day later, at the July 17 press briefing with Shea, the mayor repeated his claims, even raising his voice to a reporter as he was asked again to prove his assertions: "With great respect to my colleagues in the media, I'm going to challenge you to actually report what I said. Listen, the court system is not functioning! You can't have the ability to get people off the streets if the court system's not functioning!"

"There's nowhere near the level of court activity that we had as recently as February, before the coronavirus," the mayor said on WNYC radio a week later, this past Friday, July 24.

"The Mayor’s narrative regarding the operation of the State Court System throughout the pandemic is at best totally factually incorrect and at worst an attempt to shift the blame for an increase in street violence," wrote Lucian Chalfen, the courts' director of public information, in an email to Gotham Gazette.

"Despite what some people would say, they should walk into 161st Street or walk into Jay Street," Shea said at a July 16 CompStat meeting with police brass, referring to the locations of state courthouses and ignoring the proceedings that have continued digitally. "Don't tell me that the courts are open. The courts have been shut down for months."

In some cases, like with long-term investigations, prosecutors obtain an indictment through a grand jury before an arrest is made. In the open letter to Di Fiore and the district attorneys Monday, de Blasio indicated this may be hampering the police department's ability to go after the gang activity underwriting the increase in shootings: "Because grand juries have not been sitting, we also cannot present the major cases used to take out the most violent street gangs," he wrote. Nothing prevents the NYPD from arresting someone they suspect of being involved in a shooting, however.

Prosecutors have largely denied any reduction in the vigor with which they pursue gun charges.

“It is wrong to say that the District Attorneys are not prosecuting or that the court system is not functioning,” wrote Bronx District Attorney Darcel Clark, in an email to Gotham Gazette. “It is certainly wrong to suggest that the recent uptick in shootings has been caused by the changes in court process that have resulted from the pandemic. It is true that grand juries and trials are on hold. But for months the Bronx DAs office has prosecuted and continues to prosecute cases especially violent offenses. There was no 'slow down.'"

"When an arrest is made, we draft the appropriate complaint and file it with the court," Clark wrote. "Every defendant who has been arrested and charged with a crime has been arraigned."

Similar word came from Manhattan. "Our office aggressively prosecutes violent crime and we have not observed a correlation between the uptick in gun violence and court operations," said Danny Frost, a spokesperson for Manhattan District Attorney Cyrus Vance. "Thanks to the hard work of our prosecutors, professional staff, and court system colleagues, our arraignments never stopped and our preliminary hearings have enabled us to meet our statutory obligations in the absence of a sitting grand jury."

Oren Yaniv, a spokesperson for Brooklyn District Attorney Eric Gonzalez, told Gotham Gazette that all prosecutions in the borough had slowed during the height of the pandemic and have only recently begun to pick back up. But he said that hasn't impacted the number of arraignments or people released from jail while they await trial.

"Everything is getting arraigned and those accused of violent felonies can and are being held on bail or remand," he said in an email. "So, no, it doesn’t affect the number of defendants who are at large (leaving aside COVID considerations that are sometimes applied by judges when deciding on bail)."

There is some data to back up de Blasio’s and Shea's claims that defendants in weapons cases are being released at higher rates than in the past, although other data suggests these aren't the main contributors of recent gun violence.

In Manhattan this year, through June 15, there have been 319 arraignments for criminal possession of a weapon, only ten fewer than in the same stretch in 2019, according to Frost. But where 250 of those cases in 2019 resulted in detention, 177 did in 2020, a rate of 55 percent, down from 76% in 2019.

That may be due to a number of reasons, like the city's effort to reduce the jail population in response to the coronavirus, and the discretion given to judges at preliminary hearings, including to set bail.

According to a spokesperson for the Mayor's Office of Criminal Justice (MOCJ), 4,500 people had been released from jails between March 16 and July 5, a third of whom were released due to COVID-19 concerns. Of the COVID-related releases, 193 were re-arrested -- seven of those on gun charges.

The mayor has stood by the move to cut the city jail population, which is now below 4,000, during the pandemic. That figure came after years of reducing the jail census from 11,000 detainees when de Blasio took office in 2014 to roughly 5,400 at the start of the state of emergency in March.

"I am convinced it was the right thing to do because we were thinking about the health and safety of everyone involved and looking to save lives," de Blasio told reports in May in defense of the covid-inspired push to reduce the city jail population. "And, again, when this crisis is over, anyone who is awaiting trial who needs to be reincarcerated will be. So, this was the right approach."

MOCJ did not respond to requests for data on the total number of people with gun charges released from jail. A spokesperson for the New York City Department of Correction referred Gotham Gazette to MOCJ, which they said had received the inquiry.

A Gotham Gazette analysis of weapons arrest data provided by the Office of Court Administration revealed defendants in 48 percent of gun cases between March 16 and June 21 were released on their own recognizance or under supervision, compared with 25 percent during the same period last year. (Gun cases include criminal possession of a weapon and robbery with a weapon.)

In the three-month period between January 1 and March 15, 2020, after new state bail laws passed last year had gone into effect, defendants in 42 percent of weapons cases were released, close to the release rate during the pandemic. (Lawmakers have again increased the number of offenses that are bail eligible, which went into effect on July 1.)

But a New York Post analysis of police data showed only one person released under the 2019 bail reforms has since been charged with a shooting, amid the 528 shootings in the first six months of 2020.

The Office of Court Administration and public defenders have criticized the de Blasio administration's push to reopen in-person courtrooms to criminal proceedings, saying it will put people at risk of contracting and spreading coronavirus. Doing so could disproportionately expose Black and Latino communities, which have already borne a higher toll in the pandemic, defense attorneys say.

Grand juries will be convened again beginning on August 10.

"We have been working to reestablish full court operations, including jury trials," Chalfen, of the Office of Court Administration, wrote in a statement Monday. "While New York City still does not allow indoor dining, the Mayor blithely asks us to call in thousands of people a week Citywide for jury duty. Clearly he has absolutely no understanding of how the criminal justice process works."

Many people familiar with court procedures are alarmed by the push to reopen courtrooms for in-person proceedings.

"Now we have a situation where clients and attorneys are being forced to go to court in unsafe conditions," a caller, who identified themselves as “Lauren” and a public defender in Brooklyn, told de Blasio in an appearance on WNYC radio Friday. "The ventilation systems in the courts are very old." 

"I'm in a high-risk category," Lauren said. "I have plenty of clients who are high risk."

"If there's ways to use remote activity that works, great, but it's not an option to not have a court system because it is one of the things contributing to our – the challenges we're facing as we're trying to address violence," de Blasio responded.

"I have been talking to DAs, I've been talking to police officials and I believe them that there is nowhere near the level of activity that happened," he said. "I mean, it was just a pure factual statement."

While court activity has been reduced, the mayor’s claims it is connected to an increase in gun violence remains refuted by those working in the court system.

"There is no connection to what is happening in the street whatsoever,” said Fontier, the public defender in Harlem, “and I struggle to think how he could possibly make one if he actually tried.”