A Courtroom Lacking Due Process
On Wednesday (Nov. 19), I showed up in Courtroom 4 of the Coney Island Traffic Violations Bureau for my hearing.
I walked in confidently and checked in with the clerk. The judge entered the courtroom and put out her nameplate: “Judge Evelyn Waltrous.”
She called my ticket. Going first, Officer Bruno gave his testimony, reading from a pre-written script into some type of recording device describing why I had received a ticket.
I asked the officer one question: “Was there a sign on the traffic signal?”
I then turned to Judge Waltrous and noted that the intersection was improperly signed. I gave her a copy of the photo of the intersection and the pages of the federal and state law that undergirded my position.
The judge parried in annoyance – “this is a federal regulation.”
I responded – “As you know, New York has adopted the federal regulation as its own law, so its also state law.”
She said, “I find you guilty” without asking any additional questions.
I asked, “Why?” and looked at her for a response.
She repeated “guilty.”
No explanation provided.
Background: My Left Turn
Lets go back to April. Right after making a left on Avenue J from East 14th Street, I saw a police car pull up behind me.
A fresh faced rookie officer, Officer Bruno explained that because the intersection was very busy and the site of some prior lessons, there was no longer turns allowed onto Avenue J on weekdays. He said that I had missed signs that had recently been put up on the corners.
Due to the fact that the street was completely empty due to it being Passover and Good Friday, he apologized and said he had no discretion.
This is a picture of the intersection from the viewpoint of an approaching car. Note the No Turns signs are at the corners along with the parking signs, but there are no signs on the traffic light.
Something felt wrong about this. Aren’t these signs usually on the traffic light so a driver can see them more easily? That was my recollection.
An Airtight Argument
I plead not guilty and was assigned a date for a hearing.
In preparing, I found that there is a 800 page “Manual on Uniform Traffic Control Devices” that governs signs and signals used on streets and highways in the US.
Page 61 of the Manual squarely addressed the intersection at which I received the ticket:
My initial instinct was right. The red rectangle says that a No Turns signs should be placed adjacent to the traffic signal face. That is, it’s not sufficient to have signs placed on the corners as they were at this intersection.
I turned to the New York Department of Transportation website which confirmed that the New York State Vehicle and Traffic Law automatically adopted the Manual as the law of New York State.
So, jubilation. In 15 years of law, I have never seen something so black and white. The intersection was inappropriately signed according to New York State law, so the ticket would be thrown out.
Municipal Administrative Law Hearings : Lawless and Arbitrary, Unaccountable Judges
So what happened to my open and shut case?
On a certain level, traffic courts are kangaroo courts meant to generate money for the municipality. Indeed, a New York Task Force looking at the traffic courts in NY found the judges were pressured to maintain a 65% conviction rate.
This is not unique to New York. Indeed, there is startling analysis on the systematic harassment of the citizenry in particular the poor and minorities by these administrative processes. Many of these were written during Ferguson. See this analysis from the Washington Post. (I am not comparing my situation to that; not even close. I am very lucky. But others surely in New York before this same judge fall into the same trap and cannot afford to.)
But this went even beyond. My hearing was the very definition of lawless and arbitrary, the product of some other country than ours. First, this was a black and white legal issue. Second, the judge made a lawless decision and refused to explain herself.
Still puzzling was that judges, as a rule, hate getting overturned, so why would she give a decision so recklessly wrong. That left me troubled as I sat on the subway to my office in Manhattan.
As I read the appeal form, I understood better.
I faced a $138 fine (and two points). In order to appeal, I had to pay a $10 appeal fee as well as a $50 fee to get a transcript of the hearing. I also had to pre-pay the $138 fine. See Appeal form:
And the appeal was by a body within the same agency, with the same incentives to find a conviction and the same lack of accountability to the outside world. What kind of dope would put out a $60 sunk cost for the possibility of getting the $138 fine back. So, not appealing, means at best a $60 loss, and at worst $198 (or a probability adjusted cost of about $150 assuming the 65% conviction rate).
Or I could just fold my hand, cut losses, and pay the $138.
The system has been set up so its not rational to appeal regardless of the misconduct on the trial level. That is, there is no due process. (Btw, the second option on the form above where you concede liability but fight the penalty is a meaningless fig leaf crafted as a way to maintain the illusion of due process despite the illegal $50 transcription fee necessary to fight liability. Conceding liability is the whole ball game here, as these are simple violations where penalties follow liability like clockwork.)
Coming back to my case, the judge knew that in all likelihood that she would not even be called on it; and even if she did the higher ups would approve as her mandate was to come up with a conviction and move money into the government coffers.
This means an imperial judge. Someone who can ignore the law and then:
GRUNT, SHRUG, STARE BLANKLY, “GUILTY”
Replacing Judges With Transparent Data And Algorithms
This is the most effective scam. I spent 15 years practicing law and litigating at the DOJ and at one of the world’s best law firms and I am confounded. Everyone else is going to walk away; and it’s rational to do so.
This is the perfect legal level at which we could use algorithms and code to dispense better judgment. The issues (matching facts to rules) should be simple and data and transparency would clean things up fast. A perfect place for Balaji’s leviathan:
— Balaji S. Srinivasan (@balajis) July 5, 2014
In conjunction, to push this solution, you need a litigation campaign that overcomes the individual financial incentives to litigate. Ultimately by shedding light on such absurdities, it would undermine public confidence in these unconstitutional administrative law procedures that exist and stain across our country. This is work that would have real impact on people’s lives.
P.S. A Lack of Judicial Temperament
I figured these things are usually not isolated, so I looked around and came up with this troubling set of allegations made against Judge Evelyn Waltrous. It concerned that a Second Circuit appeal upholding the case of a gay, Jewish colleague judge who had sued her and others for discrimination. Sadly, the plaintiff tried to commit suicide soon after this case.
Read this and ponder that unaccountable “power corrupts” and that the Judge is still on the bench fifteen years after such incidents. Read this and also consider whether almost anything would be a step forward in terms of judicial integrity, demeanor, and confidence, not least of which is a transparent algorithm.