Sunday, January 4, 2015

How a Grand Jury Actually Works

This post is a little late to the party, but I thought it necessary to explain how a grand jury actually works in New York State with all that was written and reported over the last few months.

The grand jury consists of twenty-three jurors, who are citizens in the county they are called to serve in. They are asked to serve for a period of time, usually a month. The number of times they meet per month varies by the size of the county. In New York City, the grand juries will meet twenty times during their term. In small counties, they might meet four times.

In simple terms, every felony must be presented to a grand jury in New York State, unless the defendant pleads guilty prior to the presentation. The grand jury has the power to indict a person (formally accuse the person of a crime) or file a no bill (dismiss the charges). Twelve of the grand jurors must vote to indict or twelve must vote to dismiss. If you do the math, a majority is needed to do either action.

The grand jury may vote to indict a person if there is reasonable cause to believe the person committed an offense. That is significantly less than the standard at trial a jury must follow which allows the jury to convict only if they find the person guilty beyond a reasonable doubt. Due to this, many cases will pass the grand jury stage, but fail at trial.

There are really two types of cases a prosecutor presents to the grand jury. Most often we present cases where the police have investigated a crime and arrested a suspect (We'll call these "charged crimes"). Probably once a year in a large jurisdiction, each prosecutor presents a case without charges filed and uses the grand jury as the investigating body (We'll call these "uncharged crimes").

The difference? The charged crimes are usually fully investigated or close to it. The grand jury is a safeguard to decide if there is enough evidence to proceed to trial. The uncharged crimes are usually not fully investigated and require the power that only a grand jury can provide. A prosecutor usually has an idea that a crime occurred and a possible suspect at this point, but is never sure of where the proof will actually lead.

A grand jury can issue subpoenas, demanding to hear testimony or see documents. The police can merely request. If a person refuses to talk to the police or the prosecutors or provide requested evidence, a grand jury is how the prosecutor will force the person to testify or turn over the evidence. Many times I have had witnesses refuse to talk to anyone, but I obtained information they were an eyewitness or an earwitness (heard a confession). This required me to present the case to a grand jury and force the potential witness to testify. Granted, the grand jury is the last step in the investigative process because once the grand jury issues subpoenas the secret investigation no longer exists. We try to do everything we can without using the grand jury's investigative power, but sometimes cases require it.

Everyone is sworn to secrecy concerning the grand jury proceedings, except for the testifying witness. This is meant to protect the witness' privacy and alleviate pressure. Once the testimony is presented, the prosecutor then charges a grand jury by reading the applicable penal law violations and leaves to let the grand jury decide. The grand jury can request to consider charges the prosecutor does not submit, but the request must be based on evidence. If a grand juror wants to consider murder in the first degree even if the defendant is sixteen, the prosecutor cannot submit the charges because an element of murder first is the defendant be nineteen or over.

The issue arises as to a prosecutor's ethical obligations. If the grand jury investigation does not yield the expected evidence should the case be prosecuted further? To put it another way, if the prosecutor feels they cannot prove the case beyond a reasonable doubt at trial but is confident there is enough evidence to satisfy the lower grand jury standard, should they indict it or ask to file a no bill? Should the victim get their day in court in an unproveable case? Isn't that how innocent people get convicted because the prosecutor just takes a chance?

My office has a policy that we do not indict a case unless we can prove it beyond a reasonable doubt at trial. This is to guard against wrongful convictions. My District Attorney gets a lot of negative publicity for this stance because they claim he only takes the "winners" and "slam dunks." Even with his policy, we still lose some cases after trial. There are no winners or slam dunks before a jury. If it is a close call as to the proof at trial, we will let the grand jury decide and then move the case to trial.

The grand jury is a screening tool for the prosecutor just as much as it is a procedural safeguard for the defendant.

Wednesday, December 10, 2014

ABA Top 100 Nominee!











For the first time since I started doing this, the American Bar Association has nominated the lowly staff of one over here at Prosecutor's Discretion for its annual inclusion in the top legal blogs (or blawgs).

I am very excited to be nominated and that means that someone reads all of this and appreciates its content. But it's not over. Voting is open for an even more exclusive club, to be a member of the top 100 Blawgs of the year. Please visit the site here and vote for your favorites, including Prosecutor's Discretion which is under the criminal justice section.

Voting ends soon so head over quickly and thank you for voting and reading!

Wednesday, December 3, 2014

The Prosecutor's Decision

On Monday, I posted a hypothetical fact pattern based on different cases we see in my office. Check it out here.

This is a difficult case as it is laid out. There were many comments and emails from readers with good questions and suggestions on what type of evidence should be collected.

Let me put what the prosecutor looks at. If these are the only facts, we cannot prove the case beyond a reasonable doubt. The police have probable cause to arrest based on the witness statements, but it is not even clear the case would survive grand jury. With just these facts, the question arises of whether we should prosecute the case. Is this the case where innocent men might be convicted? If we choose not to go forward, how do we tell the victim?                                

Prosecutors receive cases like this every day. It's called an incomplete investigation. We are not investigators, but many time the prosecutors have to pick up where the police left off. Once police officers put the cuffs on, they move on to the next case.

One suggestion was to get the Facebook messages between the victim and boy she was talking too. That is the first thing I would do. Then, I would find out where the boy posted his messages from. A cell phone? We would obtain a search warrant for the cell phone to get the messages. Does the boy's Facebook page contain a video? Then, we can access his videos on his phone through the warrant too. Maybe these boys took a video of the incident which would show what happened.

If the victim reported the crime early on, we would obtain a search warrant for the house where it occurred to try and find evidence too.

Every investigation starts with obtaining some evidence and then any good prosecutor follows all the leads from that piece of evidence. One of my mantras is that every file has the potential to turn into numerous files. A gun case means we might be able to find out who sold the gun to the person. One robber probably did more in the area. If we get a cell phone of a rape, there is a good chance more exist on there.

It creates a never ending cycle.

Once we exhaust the possible evidence, we can make the decision. Again, if no other evidence existed but the victim's word this case would be difficult, if not impossible to prove. Those are the worst conversations with victims. They were robbed or raped and are certain we have the right person, but there is nothing to corroborate the identification. With what we know today about DNA and wrongful convictions, can I as a prosecutor justify the prosecution of that person? Does the victim deserve their day in court?

This is the cases we must decide every day. Prosecutorial discretion is a great power that we need to wield responsibly and still respect the rights of the victims. There are rarely easy choices in this line of work.

Monday, December 1, 2014

Make the Prosecutor's Decision

A girl meets a boy on Facebook through a mutual "friend." She thinks he's pretty cute so she decides to send him a message. He accepts the friendship and invites her over to his house. Welcome to teenage dating in 2014.

You're already thinking to yourself that this kind of story can only have a romantic ending, right?

The girl goes to the boy's house in the middle of the day. She knows she's meeting up to have sex with the boy. It's just the way things go where she grew up. She goes in the house and her and the boy partake in the agreed upon acts. But this is where it starts to go wrong.

The boy's friends are all in the room and they decide to have sex with the girl too. She protests, after all she did not sign up for this, but the boys do it anyway.

The girl calls the police once the hours long ordeal is over. She wants the boys arrested and charged with rape. The boys are all interviewed and claim she consented to the group sex. It was why she came over.

Essentially we are left with her testimony versus the boys statements. She admits to consensual sex with the first boy, but says it quickly became nonconsensual and it definitely was not consensual with the other boys. If we can prove the charges, it is definitely rape. The police call me as a prosecutor and ask, "What should we do?"

These are the types of situations we face every day. Can we prosecute this case? Should we prosecute this case? Check back on Wednesday for a view into how we decide what to do and how to do it.


Wednesday, November 5, 2014

When the Secret is Out

Next week I begin a trial that I finished last month. Why is that? The court severed the two defendants and required they be tried separately because they each made statements that implicate the other one. It's what we call a Bruton issue.

This basically means that when one defendant makes a statement to the police implicating the co-defendant, the defendant who did not make the statement has the right to sever his trial from the confessing co-defendant. The reason is that the defendant who did not make the statement cannot cross-examine the defendant who made the statement to test its veracity in front of the jury. This violates the Confrontation Clause of the Sixth Amendment.

In my case, both defendants made statements and moved to sever from each other. We tried the main actor in the first trial and now try one of his conspirators. This second trial is more of a legal argument than a factual one. The ultimate question is whether the jury can find a person guilty in a shooting if they were not the one to pull the trigger. It is a question of accomplice liability.

Under New York State discovery rules, the prosecutor is not required to disclose witness statements until just prior to opening statements. In most cases of this violence, we follow these rules to eliminate the issue of witness intimidation. Obviously, this puts the defendant and defense attorney in a difficult situation when discussing strategy prior to trial.

The second defendant to be tried next week has ordered all the transcripts from the first trial. That means there will be no surprises in this case. The attorney, with his client, will have ample amount of time to prepare for the witness' testimony and will even know our arguments well in advance to be able to prepare for them. This trial will be more like a civil trial where all discovery is done well in advance of trial.

There is a movement across the country and specifically in New York State to require disclosure of witness pedigree information and statements months ahead of trial. Where you fall on this issue usually depends on which side of the criminal justice system you have been on. As prosecutors, we routinely see our witnesses approached, threatened, bribed, and tricked when their name leaks prior to trial. How many times does a victim need to be victimized? Why should we risk the identity of people when they are actually willing to come forward? And it is only getting worse. Defense attorneys and defendants want the ability to investigate a case fully and speak with all the witnesses, and demand that fairness dictates early disclosure of statements.

I have seen the threats that occur with early disclosure, but see the merit in the defense attorney's argument. Should there be early disclosure even if it leads to further harm to a victim or a witness? Does a defendant have a right to early discovery?

Monday, October 27, 2014

A Trial Nobody Cares About

Part of this site's purpose is to provide a glimpse into the world of the prosecutor. I want to give you a view into who we are and what we really do. There are television shows, books, and movies where famous actors portray the prosecutors and defense attorneys as they battle in some high profile case.

That's not me. I'm one of thousands of anonymous women and men. I'm in the trenches fighting over territory long abandoned by most of society. I'm what you'd call an upper middle class prosecutor. The cases I'm assigned are very serious, very complex, but not usually the ones that end up in the news. The cases that receive daily coverage are reserved for a few select prosecutors. The only ones that end up caring about the results of my cases are the defendant and the attorneys, and sometimes the victims.

That's part of the reason you have not heard from me in so long. I just finished a trial where a defendant tried to execute three people on a city street. His target was one man who he had a feud with and two other people who happened to be witnesses. There is a pending co-defendant whose trial is a few weeks away so I am barred from saying much more than that right now.

The amazing part to me is that the media ignored this horrific and brutal violence. The local news reported on fist fights at wealthy locations, graffiti at high schools, and other low level crimes during this trial. A reporter never set foot in the courtroom to catch a glimpse of what life is truly like on some of the streets in a major urban center. No one ever asked a question of what motivated a man to commit such heinous crimes.

It's not that I want my cases in the news. Heightened media attention brings with it a heightened scrutiny both from within the office and outside of it. I do my best work in anonymity and far away from the spotlight that shines when a case is on the front page. It just struck me as a reflection on the world we live in where this horrific act, which would have been a mass homicide if successful, barely registers as news because of where it occurred and maybe who the targets were. One of the frustrations with this blog is that I cannot shine the light on cases or issues that should get attention. It's part of the rules I created this by though. I cannot discuss pending cases.

Plenty of drama occurred in this trial, including witness intimidation, the defendant discussing how good our opening statement was in his jail calls, and how we waited for the defendant to open the door to allow us to use his confession as evidence. But it all has to wait. The verdict was guilty, which is another story for a different post.

I apologize for the delay between posts, but maybe I should take more breaks. My daily and monthly views are more than double than when I was posting a few times a week. Supply and demand? Absence makes the heart grow fonder? There's probably no correlation, but I do hope a few new readers and old ones enjoy when the curtain is pulled back a bit in the criminal world.