DAs trained how to keep people in jail despite new bail law

Jed Painter, an assistant district attorney from Nassau County, has been giving presentations on New York’s new state laws that limit bail, expand discovery in criminal cases and encourage speedy trials to audiences of lawyers and legislators across the state. But critics say Painter’s presentation helps prosecutors find legal loopholes to hold more defendants on bail and to delay trials.

Painter, who serves as general counsel to Nassau County District Attorney Madeline Singas, a Democrat, has been delivering a presentation on the new laws as part of the New York Prosecutors Training Institute, or NYPTI, the training arm of the District Attorneys Association of the State of New York. DAASNY was a major voice in the debate over the reforms that passed in this year’s state budget, and suggested less ambitious reforms than plans proposed by Gov. Andrew Cuomo and Democratic lawmakers.

In the course of the nearly 90-minute July 13 presentation provided by NYPTI as a podcast, Painter gave tips to the audience of prosecutors on how to jail people that otherwise would be released under the new law. Under the law going into effect on Jan. 1, 2020, defendants can be held pretrial if they miss a court appearance and don’t appear for 30 days. So Painter gives what he called a “practice pointer you can tell your police”: If a defendant warranted on a felony doesn’t show up to court, “don’t pick them up right away. Don’t be their Uber,” he said. “You’re not going to get bail on them for that violation. Wait the 30 days, and then you’ve got your bail jumping charge waiting for them.”

Painter added that “if public safety is an issue, you don’t want to wait the 30 days,” but he seemed to be encouraging prosecutors to find a way to hold defendants pretrial.

Later in the presentation, Painter gave a strategy for when you have a “problem child” – presumably, an uncooperative defendant who won’t show up to court dates. That situation would obviously frustrate prosecutors, but defendants can be held in jail awaiting trial if they have “persistently and willfully” failed to appear. Painter suggests asking the judge to require the defendant check in daily by phone or Skype. If they fail, then the defendant could be arrested – ensuring their attendance in court. “Can you do this by yourself? No. Can you talk to your administrative judges about doing this? Absolutely,” Painter said. 

But one critic from a criminal justice reform organization who spoke to City & State on condition of anonymity said the strategy felt disingenuous, calling the daily check-ins “a way of tripping people up so they can be charged with a bailable offense.”

Another critic took issue with the whole presentation. “A district attorney’s office that is sending someone out to go train people across the state on how to subvert the law is extremely problematic,” said Erin George, civil rights campaigns director at Citizen Action of New York, a progressive group that advocated for the new criminal justice laws.

Painter is clearly no fan of those laws. “I have a problem with all of this,” he said during the presentation, while listing some crimes where prosecutors can still ask a judge to set bail. At another point, he says the writers of the bill text “screwed up.”

In an emailed statement, Painter told City & State that the quotes above are “an oversimplified misrepresentation of the training that I have offered to promote compliance with these well-intended but flawed laws.”

He said that asking cops to wait 30 days before an arrest actually gives defendants that much time to voluntarily come back to court and avoid additional charges.

“Only if the Legislature’s intent was to allow felony defendants to evade justice with impunity, which it was not, would this practice point frustrate the law’s objective,” he wrote.

Painter also criticized the way the laws were passed, as a part of the annual budget which was, as is typical, passed late at night with minimal time for legislators to review the language upon which they were voting. “Passage of these laws was rushed without a single public hearing on the legislation that was ultimately enacted,” Painter said. “Though laudably seeking to promote a more just and efficient system, these laws impose massive and immediate unfunded mandates upon local governments resulting in many legal and practical concerns compounded by the short window afforded by the Legislature to comply.”

Miriam Sholder, spokeswoman for the Nassau County District Attorney’s office, where Painter works, responded in a separate statement, saying that the office supports the goals of the legislation and has worked diligently to prepare for its implementation by offering training. “Claims that this training in any way seeks to frustrate or undermine the objectives of this legislation are factually inaccurate and border on defamatory,” Sholder said.

Left-leaning criminal justice reform groups have long criticized district attorneys offices as opponents of decarceral changes. And Laura Bennett, policy manager of criminal justice reform at progressive group FWD.us, saw Painter’s presentation as proof of a lack of support for the new laws. “Throughout the process of pretrial reform, some prosecutors have shown an alarming comfort with the status quo, which leaves 15,000 innocent New Yorkers jailed away from their families and jobs simply because they can’t afford to buy their freedom,” Bennett told City & State.