Why Proper Trial Prep Doesn't Matter

It's Wednesday at 1:45 p.m. I'm due back in court at 2:00 p.m. We are smack in the middle of my trial and on a lunch break. The current witness on the stand had finished her direct examination and the cross examination would continue after lunch.

However, that witness jumped off the witness stand as soon as she was excused for lunch. She jumped off without waiting for my instructions on what time to return and where to meet. 1:45 p.m. and all my phone calls to her are going to voicemail. If she doesn't show, the judge will tell the jury to disregard her entire testimony.

The doctor was supposed to come in at 1:00 to prepare his testimony for the afternoon. His office told me he left at 1:15. It's a ten minute ride with traffic. Still not here.

The stabbing victim and another witness were supposed to be in the office at 1:00 as well. They would testify after the doctor. Nowhere to be found.

Fifteen minutes until I'm supposed to continue the trial and I don't have any witnesses. Is it time to panic?

2:00 p.m. and I'm waiting outside the courtroom. The current witness on the stand saunters in and resumes testimony. At 2:45 the doctor appears and testifies. Shortly after, the next two witness show up and testify. Despite my arrangements and meticulous preparation everyone showed up late. As it happened their tardiness didn't affect the flow of the trial or the testimony.

Welcome to trial. No matter the preparation and arrangements, you can rarely control the situation. You can only control your stress level. Check back this weekend to see the result.

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Trial this Week

Six jurors selected and ready to go. Six more needed and two alternates. While I continue our trial this week, I thought I'd share a story I loved from the weekend.

A warden's wife helps an inmate escape and takes up residence with him? I thought this only happened in short stories and novels. Turns out fiction and reality merged in the Oklahoma prison system in 1994.

On a trial note - this case lasted for four months! 80 witnesses and 800 pieces of evidence! And I thought my week-long, twelve witness trial was taking a lot out of me.

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So You Want to Avoid Jury Duty?

I'm sticking with my jury selection theme this week.

Whenever I meet someone and they ask what I do for a living, one of two things inevitably happens. They either ask my legal opinion on an issue plaguing their life or they ask how to get out of jury duty.

As a trial lawyer, my conscience won't allow me to give out the top secret hints to avoid jury duty and as a prosecutor most times I lack the expertise in civil law to answer the legal question. I know what you're thinking - I'm a riot at cocktail parties. Before you judge, let me explain. In my experience, the people who are actively seeking to avoid jury duty would make the best jurors.

If you were accused of a crime and had decided to take it to trial, would you want rational and reasonable people thinking up excuses to avoid hearing the evidence against you? The system functions most effectively when twelve of our best citizens sit in a room and debate the evidence presented to determine if the defendant committed a crime beyond a reasonable doubt. Often the prospective jurors seeking to avoid service are those in a position of great responsibility at a job or at home who are required to evaluate credibility on a daily basis. What better jurors are there?

Those people who are creative enough to think of reasons to avoid the supposed inconvenience could instead use their abilities on a jury. It is frustrating as an attorney to watch juror after potential juror seek the court's permission to avoid serving. In every trial, I watch the judge agree to make tremendous scheduling accommodations which would address a juror's concern (be it work, childcare, doctor's appointments) only to watch as other reasons are then proffered until the judge relents and lets the person out of serving.

Before you consider trying to avoid jury duty because it's inconvenient, please think about whether you would want someone like you as a juror if you were on trial. If not, just raise your hand and we'll get you out of there.

One judge I know says this to jurors: There are only four times you are called to serve your country - 1) voting, 2) military duty, 3) pay taxes, and 4) jury service. Jury service is the best forum for a person to actually participate in the government system as a citizen. He says it is a privilege as well as a right of all citizens. I couldn't agree more.

There are many reasons that one cannot serve on a jury - family responsibilities, already paid-for trips, health reasons, and financial hardships. Speaking as a trial lawyer, please just consider whether your reason is really a hardship or simply an excuse to avoid an inconvenience. A right to a jury trial that is guaranteed to all under the Constitution cannot function without willing jurors.

By the way, are you wondering the best excuse I've heard yet? It was during an attempted murder trial and we were questioning jurors who have issues with serving individually in the jury room before doing group questioning of a panel.

Judge: Do you have an issue with serving on the jury?
Prospective Juror: Yes. I've got health problems.
Judge: Sorry to hear that. We just need to put them on the record. Can you tell us what they are
Prospective Juror: I can't hear out of one ear.
Judge: Which one?
Prospective Juror: I don't know.
She was excused for other reasons aside from health problems.

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Jury Selection

As I prepare for trial next week, it seems a good time to reflect on the process of jury selection. It is the first part of the trial and is probably the most confusing to the general public. Every courtroom drama shows the opening statements, direct and cross examination of witnesses, and closing arguments. You rarely see jury selection.

Most lawyers will tell you that your case is won or lost in jury selection. Then again, most lawyers tell you the same thing about an opening statement. And again about proper preparation. There's plenty of advice out there. While I don't think a case is won in any one phase, I do agree it can be lost in any of them.

This is about a criminal case. Jury selection is much different and more informal in a civil case.

First, about 75 prospective jurors are brought into the courtroom. The judge then goes through some preliminary questions with all of them that will allow the judge to screen out a number of people after the jurors tell the judge about their pending vacations, family illnesses, work problems, or any other reason they do not want to serve.

Once those jurors are whittled down to about 40, the court clerk puts the remaining jurors in a bingo ball system. The metal ball is spun (seriously) and the first jurors picked are placed in the jury box. The number of jurors chosen for questioning depends on the courtroom and how many chairs there are.

The judge then goes through her general background questions with each individual juror called into the jury box in front of the attorneys and the defendant. Once that is done, the prosecutor (me) is allowed to ask questions to the jurors. The questions are usually based on the law of the case or whether a juror has some preconceived prejudice towards a certain subject that will come up in the case (gun control, the harshness of drug laws, DWI laws, etc.).

The defense attorney then will question the panel about whether they will hold the prosecution to their burden and view their client as innocent until proven guilty. The judge generally puts a time limit on the questioning for each side. I agree with the limits in most cases as some lawyers, including me, can be a little long-winded.

Then the attorneys, the judge, the clerk, and the defendant congregate and discuss the potential jurors. The prosecutor goes first and puts forth their challenges for cause. This means the prosecutor is asking to dismiss a particular juror because the law says they are not qualified for this case under the law based on their responses. The defense then argues their challenges for cause. These types of challenges are unlimited.

The prosecutor then uses peremptory challenges. This is where the prosecutor can get rid of a juror for any non-discriminatory related reason. The defense attorney then uses theirs. There are only a certain number of these challenges which varies depending on the type of case (there are 20 for each side in a murder case for example).

The jurors left are selected as the jurors for the case. The clerk then picks more names out of the bingo ball for the next panel from the jurors left in the audience. The process repeats until there are 12 jurors and at least 1 alternate chosen. If they need more, they call up another panel and start over.

Jury selection is my favorite part of the trial because it is the only time you get to interact with the jurors. After they are selected, there is no more talking to them. A lot of attorneys are terrified of it because you have no idea what the juror's responses will be. While it can be scary when faced with a question or comment you were not expecting, it's also fun because you really get to see how good you are thinking on your feet and interacting with the general public.

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On the French and Indian War, and other things

Another round in our Pro Se section. Our subject today claimed to have fought in the War of 1812 and the French and Indian War on the side of the Native Americans. These claims were made once the defendant was in custody on . . . you guessed it - DWI. His second one in ten years which makes it a felony. After failing the sobriety tests and the breathalyzer, Mr. defendant told the police about how he scalped many settlers during those wars.

Now that's some good evidence for a DWI case, which probably helped convince the defendant to plead guilty. It's even better when we saw Mr. defendant walk into court for sentencing on his felony DWI wearing a different type of shoe on each foot with each one its own color. A gift from deceased settlers perhaps?

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Statistics and Animosity

Check out this article from the New York Post.

You'll remember in a previous blog post I talked about how a case moves from crime to trial. The New York Post article provides a good illustration of the path I discussed in action.

The article says that the Bronx District Attorney's Office (BXDA) threw out 17.3% of the 43,520 arrests from January 1 through July 22 of this year. New York City's system is a different beast from the rest of the state so please allow me to explain a little. I've been a prosecutor in NYC and outside of it and am speaking from experience in both systems.

In NYC, the police make an arrest and the case is required to be brought to the BXDA's Office for processing. This is unlike the rest of New York State where the police make an arrest and do all the processing without notifying the District Attorney's Office.

At the BXDA, ADA's are waiting in the complaint room to draft the charges and file the paperwork. The ADA's speak with police officers and any witnesses the police bring. Victims are usually required to come to the complaint room and speak directly to an ADA before a case will be drafted. There are exceptions of course in serious assault cases. A large number of cases that come through the complaint room are "victimless" crimes, where the police see illegal activity and make an arrest (drugs, DWI, weapons).

An ADA's job in the complaint room is to screen the case. We look for: 1) whether the police acted legally in securing evidence, 2) whether the victims are cooperative, 3) and whether we can prove the charges beyond a reasonable doubt, among other things.

The People decline to prosecute a case for a number of reasons - a search and seizure that violates a person's rights, a victim doesn't want to pursue the case, or there is simply not enough evidence yet. In many cases, drugs or another weapon are found on the ground and no one saw who put it there but the people standing by it are arrested. This is an example of a case with insufficient evidence of possession. Any case an ADA declines to prosecute is approved by a supervisor, a second pair of eyes.

The officer who fumed that the BXDA is "letting dangerous people back out on the street again and again, instead of making even the slightest effort to build a case against them" should think about the role of a police officer. ADA's routinely send officers back out on the streets after screening a case and before filing charges to gather additional evidence, find additional witnesses, or to conduct additional questioning of a defendant. The mentality should not be to arrest and charge first and investigate later. It should be to investigate first and then arrest.

An investigation obviously continues after the charges are filed and continues through trial. But that is generally subpoenas, search warrants, and gathering records. The brunt of the investigation should be done prior to an arrest.

The role of a District Attorney is to do justice. It is not to send a message to a certain person, prosecute bad guys with no evidence simply because we know they are bad, or to prosecute people where the evidence will be suppressed because the police acted illegally. Declining to prosecute a case is a difficult decision and I applaud the men and women who have the courage to get rid of a case before the legal system grinds a defendant into its slow-moving gears for a case that cannot be sustained.

I try not to monday morning quarterback police officers either (If any of you are reading I really do try). They are the ones on the street at midnight dealing with gun-toting drug dealers or walking into explosive domestic situations where both parties are drunk and wielding knives. They must make instantaneous decisions without the benefit of getting legal guidance. Mistakes are sometimes made in those split second moments and a judge with the benefit of hindsight can call an officer's action illegal. My goal is to instruct the cops the extra steps to take when the situation invariably comes up again.

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Confessions of a Facebook Stalker

Friend requests, posts, pictures, tags, and likes. Have you ever thought about how much personal information you are putting online without thinking you are doing so?

As I prosecutor, I love and hate facebook. I love it because my defendants (especially the juveniles) cannot help but post incriminating pictures of themselves or leave status updates about the crime committed. I hate it because my witnesses cannot help it either and defense attorneys are checking it just as much as I am.

Facebook plays a significant role in cross-examination. I have cross-examined a defendant who denied any gang affiliation by showing him tagged photos of him flashing gang signs or a defendant who denied knowing the victim until confronted with a photo of the two of them we recovered from the internet. How about the time the defendant denied dealing drugs or ever holding a gun? Turns out there was a photo of the defendant holding a gun, smoking a joint, and flashing hundreds online.

Now for why Facebook and its progeny scares me - our willingness to forego privacy. It starts simply enough, as reported by yahoo. A "friend" requests you. You accept thinking you know him or her. Suddenly, the "friend" has access to all your friends, who your family members are, your birthday, the area you live in, what you like, and social causes you endorse. Why not just leave your social security number too? What more does a person need?

It can happen many ways. Your friend asks you for a donation to a cause he now knows you support. Turns out the cause doesn't exist after you donate. Your friend could suggest an investment opportunity like the article suggests. Your friend could find your friends and family members who are susceptible to scams through you. What about your status update about leaving for vacation? Whoever you're connected to knows your house will be unoccupied for a week. There are a million different ways a criminal can use your information and we see them everyday in the headlines.

A few common sense tips:
1) Don't accept friend requests from people you don't know.
2) Don't post anything about an event, until it's already happened.
3) Keep your privacy settings as private as possible. Only allow friends to see your pages.
4) Teach your children about privacy and the dangers of the internet. Once it's posted, it's there forever. (Hope this blog never comes back to hurt me).
5) Don't invest any money without meeting someone face to face and getting the opinion of a certified professional.
6) In case you're wondering, I do have a Facebook account. I don't label any of my family members as such though and I suggest you follow that lead.

Does anyone have stories about their privacy invaded? What are some other tips for our readers they should know about maintaining privacy online?

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Path of a Criminal Case

It is a complex legal system, especially in New York State. I hope to shed some light on how a case moves from arrest to trial.

1) Someone calls the police. This is probably the most important event. A single individual possesses the power to send hundreds of years of legal action in motion with just a phone call. The call usually consists of a description of the crime and a description of the suspect.

2) The police investigate. The police speak to the 911 caller, the victim, and any other eyewitnesses. They also begin to gather evidence related to the crime. Based on all this information, they attempt to arrest the individual responsible.

3) The arrest. The police arrest a suspect based on probable cause. This means that there is sufficient evidence to believe the suspect committed the crime. After the arrest, the police attempt to obtain a statement from the suspect and have the witnesses identify the suspect in a line-up or some other identification proceeding.

4) The police file charges. This begins the formal court proceedings and the defendant is brought in front of a judge and arraigned on a felony complaint based on the charges filed by the police. This is usually the first time the district attorney's office becomes involved in the proceedings.

5) The felony hearing. The district attorney's office must put witnesses on the stand to show the court credible evidence that the suspect committed the crime. This usually consists of the witnesses to the crime testifying in open court and identifying the defendant as the person who committed it. It is a procedural safeguard to ensure a person does not remain in jail for more than a few days without the court seeing some evidence against them.

6) Grand jury. If the court decides there is enough evidence to move forward, the case is held for action of the grand jury. This means the district attorney's office is required to present evidence to a grand jury. The grand jury is a secret proceeding and the grand jurors decide what crimes the defendant should be charged with based on advice from the district attorney's office. This usually varies widely from the initial crimes the police arrest the defendant on. The grand jury has the power to dismiss a case, ask for more evidence, or vote on any charge not submitted to them. Plea negotiations are taking place before the case is presented to a grand jury in an attempt to resolve it prior to an indictment.

7) The superior court arraignment. After a defendant is indicted by a grand jury, he is brought in front of a supreme court judge and arraigned on the criminal charges in the indictment.

8) Pre-trial hearings. The case is set down for pre-trial hearings. These hearings are held in front of a judge who determines whether the police acted appropriately in searching the defendant, obtaining a defendant's statement, or conducting an identification procedure, among other issues.

9) The trial. The case is tried in front of a jury. The prosecutor has the burden to prove the defendant guilty beyond a reasonable doubt of all the crimes charged in the indictment. If the jury is satisfied with the evidence, they can find the defendant guilty. If not, they can find the defendant not guilty.

10) The appeal. Every defendant is allowed an appeal for a conviction as a matter of right to the appellate division in New York State. Subsequent appeals to higher courts are discretionary.

A defendant can plead guilty at any stage of the proceeding after a felony hearing is held or waived. There is legal criteria surrounding the plea I will save for another post. Does this help you understand the court system better? What else would you like to know about it?

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Day in the life of an ADA

Thought I'd share a glimpse into a typical day for you. My day actually starts the day before when I compile a list of things that MUST get done the next day on my seventy or more files.

I get to work between 8 and 8:30 each day (more on the 8:30 side in the summer). By 8:45, the list is thrown out the window as my phone is ringing off the hook with dire "emergencies".

The hour between the time I get to work and 9:30 court never seems enough time to cross one item off the list because of the phone.

At 9:30, I show up to court and wait. And wait. And wait. Wait for the judge, the defense attorney, and the defendant. Then when everyone’s there, we wait while all the other cases that had all the parties appear on time are called first. Whether I go to city court for a felony hearing, supreme court for a sentencing or pre-trial conference, or the grand jury to indict a case, I wait. It is an ADA’s specialty. As you imagine, the to-do list grows as messages pile up on my voicemail.

11:30 or so I am back at my office. I’m really going to tackle that list, well just after I return the five messages I have on my voicemail and the dozen emails. Lunchtime, when I take one, means I go to the gym or get some writing done.

2:00 court. More waiting (see above). 3:30 or so and I’m back at my office. Now to that list. What? More messages and emails. Alright 4:30. The list has grown to twice the size. I’ll spend the next hour or so trying to get as much of that list done as possible – motions, calls to victims, subpoenas for trial, scheduling witness conferences. I may even get to do a little prep work for upcoming trials.

I think I just described a day in the life of a criminal defense attorney too.

End of the day and time for a new list. Standard equation to figure out items to do the next day – take the 75% of things I didn’t get done today and double it.

Repeat for five days. Is there ever a day when the list gets done? No, you just throw it away and start fresh at the beginning of a week.

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Pro Se

Pro Se means a person who represents himself or herself. I will hopefully provide some interesting and amusing courtroom tales under this category. Maybe this will turn into Pro Se Friday?

It's a robbery case and the witnesses are testifying at the felony hearing. There are two defendants caught and a third one we are still looking for. A felony hearing is a hearing to show the court there is probable cause to believe the defendants committed a crime so the case can move forward to the grand jury stage.

Witness 1 is on the stand during the felony hearing:

ADA: "Do you see any of the people that robbed you here in court today?"
Witness 1: "Yes."
ADA: "Please point to the person or persons and identify an article of clothing they are wearing for the court."
Witness 1: "There in the blue shirt" Pointing to one of the defendants.
ADA: "Anyone else?" Hoping they identify the second defendant.
Witness 1: "Yes." You could hear the relief in the ADA's sigh. "In the back row in the blue and white striped shirt." Pointing into the audience. Now you could hear the terror in the ADA's sigh as he tried to figure out what to do.

Witness 2 is on the stand who was not in contact with witness 1 during or after witness 1's testimony. The ADA just asked this witness to identify the defendants.

Witness 2: "In front of me in the blue shirt and the one next to him in the red shirt." ADA is very relieved that both defendants were identified when witness continues. "And back there in the blue and white striped shirt." Pointing to the same man in the audience.

Turns out our last robber came to support his buddies. I thought this only happened on television. I asked myself why he didn't just leave after the first witness pointed to him which everyone thought was just a mistake.

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