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February 2, 2007 - New York Times (NY)

Late For Court: Connecticut Case Draws Scrutiny

By Alison Leigh Cowan

Return to Drug War News: Don't Miss Archive

NORWALK, Conn. - Some call the "failure to appear" charge a prosecutor's best friend because it is relatively easy to prove and can swiftly bring a defendant to the bargaining table. Others see the long-accepted but little-discussed practice of punishing late or absentee defendants as a crutch for overworked judges to maintain decorum and keep criminal cases from clogging their courtrooms.

Now such criminal charges are being challenged in Connecticut, where nearly 1 in 10 of the cases not involving motor vehicles that ended in convictions over the past five years included a conviction for failure to appear. Those found guilty of what could be a procedural misstep can face up to five years in prison.

Bringing the issue into the open is the case of Ayanna Khadijah, 34, who was convicted of the felony version of failure to appear after she failed to wake up from a nap and arrived 45 minutes late to court one day in August 2003. Her case is extraordinary because she fought back.

It was the only court date Ms. Khadijah missed among 45 sessions over three years defending herself against a set of drug charges that were eventually dismissed, in 2005. Ms. Khadijah, a single mother with a criminal history, received a suspended three-year sentence on the failure-to-appear charge.

She had spent the day before she was late for court at her job as a community organizer and then delivered newspapers from 1 to 8 a.m. Prosecutors argued that she should have known better than to work all night before a court appearance.

Connecticut's appellate court overturned her conviction last fall after concluding that the inadvertent doze was not a willful shirking of responsibility. But the state is appealing to the State Supreme Court for fear the widely used tool could become harder to wield.

"We thought it set a bad example," said John A. East III, a senior assistant state's attorney, who argued in court papers that rather than rely on her boyfriend to rouse her, Ms. Khadijah should have set an alarm or perhaps brewed herself a strong cup of coffee.

But Gerald B. Lefcourt, a past president of the National Association of Criminal Defense Lawyers, said the case "is really right out of Catch-22." "There's no way to win when you have a system that is so inflexible and so lacking in understanding," he said.

At least 30 states treat failure to appear as a crime that stands alone, according to information in American Law Reports, with most tying the severity of the penalty to the seriousness of the underlying charge.

Statistics on how often such cases are filed or lead to convictions are hard to come by, because the Federal Bureau of Investigation lumps the information it collects into a catch-all bin it calls "other offenses."

New York State's Division of Criminal Justice Services said its records showed 444 convictions on bail-jumping last year and 465 the year before -- a fraction of Connecticut's 6,539 in 2006, and fewer even than the 596 in Norwalk (these numbers include those related to motor-vehicle charges).

Asked why New York's figures were so much lower than those across the state line, a spokesman for the agency, Mark Bonacquist, said he was "not making any comment as to whether our statutes are similar to Connecticut."

Here in Norwalk, some lawyers contend that prosecutors and judges are overusing the charge to solve all manner of other problems. Norwalk ranks sixth among Connecticut's 35 courts -- including many that are far larger and busier -- for the total number of failure-to-appear cases disposed of last year, and had by far the highest rate of conviction on such cases, just shy of 55 percent, of the courts with the highest volumes.

"Failure to appear should be a last resort," complained Jon L. Schoenhorn, a Hartford lawyer who is the president of the Connecticut's Criminal Defense Lawyers Association. "You can only put so much pressure on parties to move cases along before the pressure is seen as an abuse of discretion."

Alfred Blumstein, a criminologist at Carnegie Mellon University, called the Connecticut situation "mind-boggling."

"Showing up late for court is certainly inappropriate but to be convicted of it as a felony sounds so extreme," he said. If a defendant is not there when called, he wondered of the courts, "Can't they juggle their schedules a little bit?'"

Ms. Khadijah, who twice went to prison in the 1990s on drug and other charges, said she did not set out to take on the criminal justice system. Rather, she said, her focus over the last decade has been on supporting herself and her daughter, now 5, of whom she once lost custody.

"Because I'm a felon, it's hard to get a job," said Ms. Khadijah, a high school graduate who worked in a factory packing Nivea skin cream, delivered pizzas, and worked at a law firm. She has also been evicted for failure to pay rent, and sought bankruptcy protection in 2005 to cancel the $30,000 she owed her criminal lawyer, Sam Kretzmer.

The missed court date stemmed from a February 2002 police raid of the Round Tree Inn on Westport Road, where Ms. Khadijah was living. She was charged with possession of narcotics and risk of injury to a child, though she accused the police of entering her room without a warrant and claimed that the drugs they found were not hers. Court records show Ms. Khadijah kept 20 court dates over the next 18 months without a hitch.

She knows the drill cold. Dress respectfully, so court officials see that you understand the severity of the charges. Arrive early, leaving plenty of time to clear the metal detectors. Sit politely, even if you must wait all day to be called.

"We used to be there at 9 a.m. and leave at 5 p.m. every day, just like I worked there," Ms. Khadijah said of herself and her boyfriend, Darri Woodhouse, a co-defendant in the drug case.

According to her testimony in the failure to appear case, Ms. Khadijah arrived home from her Norwalk Hour paper route at 8 a.m. on Aug. 13, 2003, the second day of jury selection for the drug trial. She sat on the couch and told Mr. Woodhouse to wake her if she dozed. He didn't.

Instead she was roused by a telephone call from her lawyer about 11 a.m., 15 minutes after she had been instructed to arrive. Ms. Khadijah raced to the courthouse full of apologies, getting there at about 11:30 -- minutes after Judge Susan Reynolds had dismissed jurors and ordered her charged with failure to appear in the first degree.

Ms. Kretzmer had assured the judge that her client was on her way and asked for five minutes' grace. "This is not a cocktail party," the judge replied. "This is the most important thing in her life, and she's 45 minutes late."

The judge offered to vacate the arrest if Ms. Khadijah entered a guilty plea instead of going to trial, an offer her lawyer rejected. The charges were dismissed five months later by a different judge, who agreed that the police had erred by entering without a warrant.

So prosecutors pressed on to trial in January 2004 on the lone remaining offense -- failure to appear.

"It's like hitting an ant with a hammer," said Mary Anne Royle, a lawyer who has been helping Ms. Khadijah with her appeals. Mr. Schoenhorn, the leader of the state's criminal defense bar, called the decision to continue the prosecution after the drug charges disappeared "a sour-grapes type of vindictive act."

But Mr. East, the prosecutor, said "we have to be aggressive" in pursuing such cases.

"Failures to appear are a big problem in our courts," he said. "They clog up the docket and cost the state a lot of money."

Ms. Khadijah was convicted of failure to appear once before, 16 years ago, a misdemeanor that led to the first of her two stints at the York Correctional Institute in Niantic and that she said was a proper response by the system.

That conviction was used to cast doubt on her testimony in her recent failure-to-appear case.

As that case undergoes further review, both sides acknowledge that precedents on the subject are skimpy, since the issue rarely gets litigated. Both sides cite a 19-year-old Washington, D.C., case about a habitually late lawyer who overslept one day, called the court to say he would not be coming and went back to bed, according to the appellate panel's summary.

Connecticut prosecutors note that the resulting contempt charge stood on appeal, while Ms. Khadijah's lawyers use the case to highlight the contrast between the lawyer's response and her efforts to race to court once awakened.

Other lawyers reached back 23 years to find a Connecticut case, Gionfrido v. Wharf Realty, in which a plaintiff's lawyer left Middletown for Hartford on a lunch break to retrieve a file and was 26 minutes late returning to court because he "lost track of time" and hit traffic.

The Middletown judge dismissed the lawsuit moments after the lunch break ended when the plaintiff's lawyer did not show up. The Connecticut Supreme Court called the dismissal "harsh" but ruled that the lower court had not abused its discretion in light of the need to process cases "in a timely and efficient manner."

The treatment of tardy defendants is hardly uniform. On a recent morning here, some no-shows got a pass, in the form of a letter reminding them of their obligation to appear in court. Others had their bond increased. At least one was ordered rearrested.

Neatly dressed in a cowl-neck sweater, flowing skirt and brown wig to hide hair loss she said stems from stress, Ms. Khadijah arrived promptly for a 10 a.m. appearance on her most recent arrest, in December, in which she was accused of reckless driving and criminal mischief in a vacant lot. "Because I've been in trouble before, I'm an easy catch," she said afterwards of her seeming inability to stay out of court.

After 73 other names and nearly three hours, Ms. Khadijah's name was called. She stood.

The exchange took less than one minute.

"Are you Ayanna Khadijah?" Judge Reynolds asked, as if they were meeting for the first time.

"Yes," said the defendant.

The judge instructed the prosecution to talk to other people involved in the December case. Ms. Khadijah was told to return in four weeks for another appearance.

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