Wednesday, August 31, 2011

Juvenile Crime

Found this article on yahoo today.

What I can gather from the facts is that two teens, a fifteen year old and a sixteen year old, walked up to a 73 year old man, each brandishing a black gun, knocked him to the ground, punched him in his face, and stole his money (which happened to be seven cents). The fifteen year old confessed to the crime, but said they were BB guns.

Quick thoughts on my first read:

1) The headline is "Teen gets branded a felon for life . . ." The headline would be more appropriate as "Teen's actions brand him a felon for life." Let's not blame the jury and judge for the defendant's actions.

2) What's the difference between seven cents and seventy dollars in a robbery? Robbery is a crime of theft no matter the amount. It is based on the force used. In this case, two guns, punches, and kicks. Should the defendant get a lighter sentence because he chose his victim poorly?

3) The defendant claims they were BB guns in his statement. Much like the amount of money taken, I doubt it mattered to the victim at the time.

In case you were wondering, this was not my case. Not even my county.

I prosecute felony crimes and specialize in juvenile offenders, which is why the article caught my attention. JO's are thirteen, fourteen, and fifteen year olds charged with certain murders, robberies, burglaries, and rapes, among others. These defendants would normally be prosecuted in family court in sealed delinquency proceedings, but these charges are considered so serious that these defendants are charged and tried in superior court just like adults. Anyone sixteen and up in New York is treated like an adult when they commit a crime.

The sentencing range for JO's is significantly lessened when they are in superior court. If the defendant in this article was sixteen, he would have faced up to 25 years in prison. Since he was fifteen, he faced a maximum of 10 years and the judge sentenced him to serve a minimum of two years in jail. This seems fair for what the defendant did.

What do you think? Should there be any exceptions for juveniles or should they all be handled in family court? What is an appropriate age to determine someone is an adult when they commit a crime?

Thursday, August 25, 2011

Eyewitness (Mis?) Identifications

The New York Times had an article over the weekend concerning eyewitness identification. What struck me about the article was the generalization of all cases based on eyewitness identification without providing any data to support the claims. I realize my argument will not be based on scientific studies either. I will only discuss my experience.

For instance, the author states that "every year 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest."

One of the reasons I wanted to start this blog was to address issues like this from a prosecutor's standpoint. My caseload consists of hundreds of felonies every year. For easy math, let's say I handle 99 a year. Based on this assertion, 33 of those cases are based on mistaken identification! While there are a handful of cases a year that I am not confident in the identification, my office disposes of such cases before they are even presented to the grand jury. We are not interested in prosecuting anyone when we have a doubt about.

The key is corroboration in cases. As a prosecutor, corroboration is the lifeblood of an eyewitness ID. What does this mean? A few examples:

1) A robbery victim calls 911 and reports to the police that the robber was a white male, six feet tall, with a shaved head, wearing a red hooded sweatshirt with white letters. A half hour later a police officer stops a white man, 5'11" tall, bald, and wearing the sweatshirt described. He's only one block away from where the robbery took place, but he doesn't have the purse on him.
2) The suspect has the watch that was stolen from the victim on him when stopped by police
3) The suspect says they were in the area when the robbery happened. Maybe they even say they saw it. This coupled with an ID is good corroboration.
4) Three gas stations are robbed in three weeks. The identified suspect lives smack in the middle of all three.
5) Two separate witnesses are shown a series of photos of the suspect in separate rooms at the same time and both identify the suspect's photo as the robber.

Should the suspect be charged with the robbery if the victim identifies him and that's the only evidence? The prosecutor should look at single eyewitness identifications with a critical eye as it is abhorrent to prosecute an innocent man. If there is nothing to contradict the ID though, justice for the victim and the community demand the person be charged.

Are the police supposed to let the suspect go because their is no forensic evidence? As I tell juries, the defendant decides where the crime happens and how it happens. He decides whether to leave any forensic evidence behind. We cannot reward smart criminals and only punish the sloppy ones.

There is no DNA or fingerprints in the majority of cases. There's not even an opportunity to gather some as the defendant was wearing gloves or threw the only evidence in a river never to be recovered. Justice demands that crimes be prosecuted, not just the easy ones. I applaud and encourage the work being done by the Innocence Project and have a friend working hard to exonerate the wrongly accused. I subscribe to some of their suggestions as well like a double blind line-up (where the detective conducting the line-up doesn't know who or where the suspect is in the line-up so they can't even inadvertently suggest who it is). I don't agree that these exonerations should require more evidence in cases than the law currently requires.

In New York State, a judge determines whether a police arranged identification was "unduly suggestive" during pre-trial hearings. The law recognizes that all identification procedures are somewhat suggestive. The court is looking for those procedures where it is so suggestive that the witness picked the defendant based on the improper police conduct. Also, the identifications are then subjected to cross-examination by defense attorneys in front of juries. These are two levels of already established review and the judge instructs the jury on how to judge the credibility of a witness and the factors to consider in weighing an identification.

The debate will rage on and eyewitness experts will keep gaining in popularity. Experts like that, however, are a topic for separate blog. I'm trying to find statistics of identifications that have been confirmed through forensic testing after new testing is ordered. Does anyone know of any?

Should cases based solely on eyewitness identifications require additional evidence to proceed? Should charges be barred if the only evidence in the case is the victim saying with certainty the defendant committed the crime?

Sunday, August 21, 2011


A prosecutor holds a lot of power over the lives of citizens. There is a specific name for this - prosecutorial discretion. A District Attorney can choose who to charge with crimes, what crimes to charge, whether a plea bargain should be offered, and has the ability to recommend what sentence is appropriate to the court.

Think about that. One person has the power to bring charges against a citizen and present evidence to a grand jury. One person has the power to choose whether a citizen should be charged with a murder, manslaughter, or not charged at all because a killing was legally justified. One person has the power to offer a plea bargain to a reduced charge that may allow a person to seek treatment or probation whereas the higher charge could lead to state prison.

The powers are broad and each prosecutor must remember our ethics when making such decisions. There is a tremendous responsibility in this discretion and I watch the people in the district attorney's offices work hard everyday to remember this responsibility.

That is why I wanted to start this blog. There are wonderful people in law enforcement doing their absolute best to uphold the laws of this country and I hope to give the public a forum to understand exactly what we do. I'll use my discretion on here to talk about criminal law issues, the court system, police work, amusing court stories, books, and probably a lot of other issues that may relate to criminal prosecution.

The idea for this blog came to me when I answered a question for the thousandth time - What do you do? It's simple enough to answer. I usually tell people I work for the DA's office, or the District Attorney's Office. 999 times out of 1000 the response from the person asking the question is a variation of "how does it feel representing those criminals?"

Maybe they think DA stands for defense attorney? I usually follow this up with "No. Have you seen Law and Order? I'm like Jack McCoy. The prosecutor." Then, they nod to say they understand. I hope they do and the conversation ends while the questioner probably thinks I'm a little full of myself for acting like I'm a famous actor. It would take me hours to explain what a prosecutor does, which is more than the polite cocktail conversationalist was looking for. So I take the shortcut and give them an example. Now that the show is cancelled, I'm going to have to work on my answer. Or, we can get a few million people to read this blog and understand what a prosecutor does.

I hope to enlighten, inform, and amuse. I appreciate your feedback in any form you wish.