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Why Carlos Montero Has Been in Rikers for Seven Years Without Trial

Blame the judge, lawyers, and DNA.

For those unfamiliar with the pace of justice in New York City, the New York Post story earlier this week headlined “Man arrested as teen has waited 7 years in Rikers for trial” likely came as a shock. The story of Carlos Montero, who so far has spent 2,431 days in jail without a trial (much less a conviction) immediately raises a series of obvious questions about due process and speedy trial rights under the Constitution. But Montero is one of hundreds of current jail inmates who are incarcerated indefinitely, despite the fact that no judge or jury ever has convicted them.

At Rikers, approximately 400 inmates have been waiting for at least two years for their cases to get to trial. As of April, The New York Times reported, there were at least five others who, like Montero, have been awaiting trial for more than six years. This week, The Wall Street Journal reported that the city’s municipal courts had “cleared” 591 of the 1,427 cases that, “as of mid-April, involved inmates who have been at Rikers more than a year, data from the state judiciary showed.”

So why has Montero been held for seven years? According to interviews with some of the people closely involved with the case, as well as with lawyers and other professionals who follow the New York criminal courts, I can sum it up this way: Pretty much everyone involved here blames someone else for the delay.

It is not a simple case, but it’s not the most complicated, either, and part of the problem is that each defendant — Montero has two co-defendants — is on his second set of attorneys. The trio, police and prosecutors say, killed a man on October 23, 2008. One of Montero’s co-defendants fatally stabbed the victim in the case, prosecutors say, and Montero’s other co-defendant attacked another man who was at the scene. One of those co-defendants has been fighting the introduction of DNA evidence found on the knives (and the alcohol bottle allegedly used to clean those knives). Montero? He’s on the hook for murder, claims he wasn’t at the scene of the crime, and reportedly rejected an informal plea deal a while back.

This whole story has unfolded for nearly seven years before the same judge, Manhattan Supreme Court Justice Ronald Zweibel, who has, the Post reported, presided over 77 appearances by Montero since 2008. Judge Zweibel was unavailable for comment this week and is restricted by judicial ethics rules from making any substantive public pronouncement about the ongoing case. For those reasons, he has not explained why he hadn’t, during any of those 77 appearances, forced a trial for Montero, or agreed (as some judges do) to sever Montero’s case from those of his co-defendants, or threatened to dismiss the charges against Montero because of the deprivation of his due-process rights.

A judicial spokesman I spoke with Tuesday, while careful to emphasize that he was not speaking on behalf of his boss, told me that no one involved in the case thinks that the delay is acceptable and that it was caused not by the judge, but rather largely by the furious “motions practice” set forth by defense attorneys and prosecutors, all of whom have different agendas, strategies, and tactics. The DNA issue alone, I was told, resulted in years worth of motions that have not been resolved.

“In one sense, it’s no one’s fault. In one sense, it’s circumstances,” Montero’s current attorney, Robert Jaffe, told me over the telephone this week. “There are legitimate DNA issues. You had to hire experts to deal with DNA, there had to be motions filed and responded to, and decided by the courts. And now, after years of arguing over testing, the DA has said that she is not going to use the DNA. Had she said that years ago, the trial would have taken place years ago.”

There is no constitutional speedy trial violation, Jaffe says, because prosecutors aren’t technically at fault for causing the long delay in trying his client (other defense attorneys are not so sure). People in the office of prosecutor Christine Keenan, meanwhile, agree with Jaffe’s assessment. It’s not their fault, they say. Cases with co-defendants are almost always longer, for example, and the science surrounding the DNA evidence has evolved since 2008.

“The length of time that this case has lingered is unacceptable,” Joan Vollero, a spokeswoman for the Manhattan DA’s office told me Thursday. “We have been monitoring its progress — or lack thereof — for years, at the highest levels in our office…. The people would like this trial on murder, robbery, and assault charges to begin as soon as possible, and hope these issues can finally be resolved.” But “as soon as possible” means different things to different people. Montero’s trial could have taken place years ago had prosecutors agreed then to sever his case from those of his co-defendants.

So you have co-defendants whom prosecutors stubbornly wanted to try together to better the chances of convicting all three suspects. You had different defense attorneys substituting into the case. You had lengthy DNA challenges that Montero was forced to wait on even though he neither gained nor lost from the challenge. You have late-discovery rules in Manhattan, which allow prosecutors to shield witness statements from defense attorneys until shortly before trial. And most significantly, you have a culture, I was told by several Manhattan court watchers who asked not to be identified, in which overworked trial judges fret about being overturned on appeal if they take bold, decisive action, even in long-running cases like this.

Before the Post story, I was told, there had been some recent progress. A pretrial hearing in the case was (and for now, still is) scheduled for August and the working plan was to try Montero, separately, sometime in November, after his two co-defendants are tried. That would mean at least another five months at Rikers, without bail1, before Montero and prosecutors finally get to make their case to a jury.

After the Post story and the international publicity it drew to Montero’s case, Judge Zweibel hastily scheduled a Monday “conference” at which time the attorneys may expect an expedited trial schedule. What could possibly go wrong? The new schedule reportedly interferes with the long-planned vacation schedules of some of the key players in the case.