Criminal Justice New York State

The Secret Memos New York Courts Refuse to Give Up

New York Focus revealed routine secret instructions used to guide judges’ decisions. Civil rights lawyers are suing to make them public.

Sam Mellins · September 5, 2023

By the time the next appeal is heard, civil rights lawyers will have waited two years for the court system's secret memos. | Illustration: Maia Hibbett

Staying Focused

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In June 2021, lawyers for the state court system sent a memo to some of New York’s top judges. Labeled “confidential” and for “internal use only,” it instructed the judges on how to interpret a recent ruling from a state appeals court.

The ruling sprang from a case in which Bronx defendant Shamika Crawford had been rendered homeless for months after an order of protection barred her from her own apartment. She sued the judge who issued the order and won: The higher court ruled that defendants in her situation are entitled to a prompt chance to argue against orders of protection that threaten to separate them from their homes or families.

Defense lawyers hoped the case would be a watershed moment. The court system’s response ensured it wasn’t.

In the confidential memo, which was obtained and published by New York Focus, the court system’s lawyers sought to limit the impact of the ruling, narrowly interpreting its requirements and discouraging judges from holding separate hearings or allowing witness testimony when they reviewed orders of protection. Criminal defense lawyers and experts said the instructions effectively undercut the higher court’s effort to protect defendants’ rights.

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When New York Focus revealed the memo’s existence, a spokesperson for the court system described it as “normal practice.” But these documents are generally kept secret, leaving New Yorkers in the dark about the instructions their judges receive on issues ranging from bail to evictions.

That reporting, and the state’s response to it, led the New York Civil Liberties Union last summer to sue the Office of Court Administration, the agency that runs the state courts, seeking to force it to release a decade’s worth of the memos.

“The court system’s spokesperson tried to brush it off by saying this is a routine practice,” said Terry Ding, an attorney for the NYCLU. “It seemed to suggest that they issue instructions like that with some frequency. That’s when we started looking into it.”

In October, a state judge ruled in the NYCLU’s favor, finding that the public is entitled to access the instructions under the state’s freedom of information law. But OCA appealed the ruling, continuing its fight to keep the documents secret. The appeal is still pending.

“Is what’s in these memos something that the public would be upset to learn about?”

—Evelyn Malavé, Hofstra Law School

Other states and even some subsections of New York’s court system make similar documents public. Watchdogs say that it’s essential for transparency and accountability that OCA join them.

“Is what’s in these memos something that the public would be upset to learn about?” said Evelyn Malavé, professor at Hofstra Law School and author of a forthcoming academic paper on OCA. “It’s impossible to make that assertion right now, but the fact that there’s been so much resistance to releasing them has been very unsettling for that reason.”

OCA spokesperson Lucian Chalfen declined to comment, citing pending litigation.

Transparency advocates had hoped that a change in leadership this spring might shift OCA’s recalcitrance: In April of this year, Rowan Wilson became chief judge of New York, a role that includes running the entire court system.

Since joining the Court of Appeals, New York’s highest court, in 2017, Wilson has built a reputation for expansive views on civil liberties and government accountability. In one early sign that he might lead the court system in a new direction, he oversaw an order that banned court-sponsored security for former judges — a perk that Wilson’s predecessor, Janet DiFiore, received for years off the books as a judge, and for months following her retirement in 2022.

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In the lawsuit over the memos, though, nothing seems to have shifted.

“We have discerned no change in the court system’s approach to this case,” Ding said. “We’d welcome a conversation if they wanted to engage, but we haven’t seen that yet.”

When the lawsuit was first filed, OCA had called for it to be tossed out of court, arguing that the memos did not determine how judges rule on cases and therefore didn’t need to be disclosed. The court system’s bureaucracy has “no authority” over judges’ decisions, and the secret memos merely “aid judges,” the agency claimed.

Jonathan Oberman, professor at Cardozo Law School and an expert in criminal law, said that this argument “could be legally correct, but practically is a distinction without a difference.”

“Individual judges may deviate, but the great majority of judges would likely read the memorandum and think, ‘This is how we’re being instructed,’” he said.

Justice Lyle Frank, who issued a decision in October 2022, rejected all of the agency’s arguments and ordered it to turn over the documents within 180 days.

That didn’t happen. Instead, OCA indicated that it would appeal to a higher court. The deadline to complete the appeal was in January of this year, but OCA blew past the time limit and the appeal was automatically dismissed. Then, six months later, OCA asked the appeals court to give it a second chance to appeal, explaining that they hadn’t realized when the deadline was. The agency “was under the mistaken belief that it had six months instead of sixty days,” its lawyers wrote.

NYCLU’s lawyers objected to this plea of ignorance and asked the court to toss the appeal, but the court granted OCA a second chance in August. The appeal is slated to be heard in December — more than two years after NYCLU filed its initial public records request.

“It’s quite troubling that OCA is working so hard to prevent the public from having this kind of transparency,” said NYCLU attorney Daniel Lambright.

“I’ve been surprised by how much they are fighting this.”