Wednesday, September 14, 2011

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.


  1. I have nothing intelligent to add--just wanted to say I enjoyed this post. Fascinating stuff!

  2. This is exactly the answer I gave while doing interviews when I was asked about the article. Well said!

  3. Well said and very true!