International Crime and Congratulations

I know it's only been two months, but Pros. Dis. is taking a much needed hiatus for the next week to investigate crime in international waters. A boat, sun, and some drinks may be involved.

Did I give away too much? Check out this post about internet stalking and you tell me.

In my absence, my fellow prosecutors and bloggers will carry on. Check them out and be sure to come on back next week for new discretions. I will be refreshed and so will the posts.

D.A. Confidential - He's giving a fantastic series of a true crime murder investigation right now.
Sarena Strauss - Former prosecutor and author of Bronx D.A. gives her insight into current events, child abuse, child safety, and sex crimes among other topics
Matt Mangino - Former top prosecutor in a Pennsylvania county provides daily analysis of current events (where does he find the time?)
Crim Law - Virginia prosecutor who is now a primary source for Wikipedia
Lisa Regan - frequent contributor here and author blogging about her journey into publication.

A special note of congratulations to two prosecutors in Buffalo, New York. Prosecutors Jim Bargnesi and David Heraty did a spectacular job in convicting a defendant of murder in the second degree.

What made this case interesting is that it was a retrial of a conviction in 2007 where a jury found the defendant guilty of murder in the first degree. The Court of Appeals (highest court in NY) reversed the conviction and sent it back because it deemed the defendant's confession was obtained illegally. At the second trial, the co-defendant, who testified against the defendant in the first trial, refused to testify. The court allowed Jim and Dave to use the testimony of the co-defendant from the first trial during the retrial due to a neat little exception in the hearsay rules.

Those prosecutors were left without a confession and with the only identification of the defendant during the crime from a 2007 transcript and still obtained a conviction (Don't worry there was some other evidence).

Well done! Interested in the difference between murder 1 and 2 in NY? Look at this prior post.

So if this doesn't keep you busy in my absence, feel free to comment and provide some topics you would like to know more about. Questions you always wanted to ask. Anything you want. Email or comment. Talk to you soon.

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Crime Scene Reality

It was a moment of weakness. I'm here to confess. I probably could have avoided it, but it felt so good.

For about five minutes.

C.S.I. played on my television screen on Thursday night. For most people, this is a time to relax and unwind and let some sensational events sweep you away for one hour.

For me, it's a time of stress I try to avoid. My wife had the television tuned to the show and I figured an hour relaxing sounded great. I should have known better.

Shows like this leave an indelible imprint on the viewer whose only connection to police work is these shows. The viewers are citizens. These citizens become jurors. I meet the jurors in the courtroom and have to battle against their preconceived notions of what type of evidence my case should have. I also have to battle against their desire to interpret evidence based on what they've seen actors do on television.

So how is C.S.I. different from the reality of police work? Let's take the episode I just watched where a man was recently released from jail for manslaughter. He finds his daughter has taken up with some gang members and allegedly kills two of them to exact revenge. He ends up dead himself, until medical personnel bring him back from the dead after being shot in the head. He then hijacks a medical helicopter to Mexico.

Sounds like just a normal day at the office. Here are a few differences:

1) Pristine crime scenes don't exist. In the show, each crime scene is manicured awaiting C.S.I. detectives arrival. Think about a 911 call. Shots fired in a house. Officers respond to the house and enter. They search for injured parties, possible suspects, and are making sure no one takes a shot at them. Once the sweep is performed and the area is secure, officers then look for evidence of a crime. You can imagine the condition of a crime scene once people have fought, someone was hurt, shots were fired, and now officers have walked through it.

2) What you see is not what you get. A C.S.I. detective on the show is actually a combination of at least four different people - the first responding officer, the lead case detective, the crime scene personnel who collect the evidence, and the scientist who analyzes it. These are four distinct jobs done by four different people, each requiring specialized skill. You would never see the scientist who analyzes the DNA also interviewing the suspect. Or the officer whose only training was the police academy looking through a microscope for hairs. DNA comparisons and autopsies are conducted by scientists and doctors with advanced degrees.

3) It is difficult to obtain a DNA sample from an item. If we do, it is weeks after the crime happened. Then it takes weeks to compare the DNA obtained from the evidence to a person's known DNA sample to determine if it is a match. Also, there is no national databank with every person's DNA on file. If there is DNA on a piece of evidence, we won't know whose it is unless we already have a suspect's DNA. If the person was never convicted of a crime or is unknown, then we will not have a match. On the show, they had a DNA match to a pool of blood within minutes.

4) The crime scene detectives are never the first officers on a scene. They get called once an officer or supervisor determines there is evidence that needs collection and processing.

5) Some of the technology they use doesn't exist and if it does, local law enforcement doesn't have access to it. Video enhancements so accurate that a video taken from one thousand feet away can be enhanced for a clear view of a suspects face? A hologram machine that recreates a skull based on a tiny fragment of bone? Even some of the technology that does exist is too expensive for police department budgets.

Maybe I should just enjoy these shows for their entertainment value. The producers are looking for entertaining television after all, not a police procedural manual. No matter my intent when I start to watch them, I find myself correcting mistakes and complaining about techniques. This is probably the reason my wife only watches those shows when I'm not around.

So does C.S.I. really affect a jury?

Despite my personal feelings on C.S.I. and others, I'd argue that they aren't the main reason that jurors have heightened expectations for evidence in a case. We can just look to the phones people carry around. They can call, email, text, navigate, speak different languages, pay for items, and play music. The more sophisticated a person's technology, the increased scientific testimony they will expect. A person thinks that if they have all of this technology in the palm of their hand, the government must have incredibly advanced instruments.

It's a reality all attorneys are dealing with.

As attorneys, how do you deal with juror's expectations regarding evidence? As potential jurors, what kind of evidence are you expecting to see?

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Case Statistics

As I promised Stacey some time ago, here are some of my case load statistics.

As mentioned previously, I operate under a grant in my office dealing with violent juvenile crime. As part of that grant, I must provide a report every quarter. So these stats deal with the last three months (July-September)

Total cases handled: 81 files

Number of pleas taken: 49

Number of cases closed after arrest but before indictment: 6
Main reason why: insufficient evidence

Number of trials: 2
Number of convictions: 1

Number of thank you cards from victims: 1

Youngest defendant: 14 (See below)

Types of cases handled: gun point robberies, burglaries, car thefts, shootings, stabbings, murders, gun possession, drug possession, vehicular homicide, rape

Number of defendants attempting to withdraw plea: 2

Number of them that succeeded: 0

Toughest case to resolve appropriately: Sixteen year old robbed two people with a shotgun. Proof showed he has a 70 IQ and was put up to it by his mom's boyfriend who also got him drunk before it.
Resolution in that case: Probation

Worst offender of the quarter: Between the ages of fourteen and fifteen one defendant committed two gun point rapes and four gun point robberies.

Not bad for a three months span.

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Murders and Manslaughters

There is always a difficult question faced as a prosecutor. It comes from the family of a homicide victim in the days and weeks after a suspect is apprehended. Emotions are raw. Pain, loss, grief, anger, and revenge mix together. The deceased's loved ones want a measure of justice.

It's a variation of these questions - Why is it second degree murder, not first degree? Why is this a manslaughter case and not murder? Will he face the death penalty?

Homicide does not always equal murder.

In New York State, there are different levels of homicide crimes I will attempt to explain. First degree murder, second degree murder, manslaughter in the first degree, manslaughter in the second degree, and criminally negligent homicide. There are various charges for vehicular manslaughter, but we will address those in a future post.

Let's start with the least serious and move up:

Criminally negligent homicide: A person causes someone's death through criminal negligence. This is more than negligence in a civil case, so it's not just rear-ending another person. One of my case examples - defendant was driving a van without brakes. The rotors and brake pads were worn through so badly that they didn't exist any more so in effect there was no braking mechanism and there was just metal grinding on metal. Inevitably, his brakes cut out on a decline in a road and his van struck and killed a pregnant woman walking across the street. The law defines criminal negligence as a person who fails to see unjustifiable risks in their acts that the average person would see.

Manslaughter in the second degree: Recklessly causing the death of another person. This is a step up from criminal negligence. Acting reckless is when a person is aware of the risks of their behavior, but goes ahead with the act anyway. Example - a person showing off his loaded gun to a friend by twirling it around on his finger. It fires and kills his friend. The person didn't intend to kill his friend, but we can all agree he was acting recklessly.

Manslaughter in the first degree: Intending to cause someone serious physical injury and the act kills the person. Example: A suspect intends to shoot his victim in the knee cap. He wants to punish the victim and make sure he doesn't walk again. The shot actually hits the victim in the femoral artery in the thigh and the victim dies. Generally, we can't say the suspect intended to kill the victim by shooting him in the knee. He intended to cause serious physical injury and in the process killed him.

Murder in the second degree: 1) Intentionally killing someone, 2) Recklesssly killing someone by doing an act that shows a depraved indifference to human life, or 3) the suspect commits a burglary, robbery, kidnapping, rape, or some other listed crime and in the course of that crime someone is killed.

1) This is what we see most often. A person shoots another person intending to kill him and succeeding. 2) The second situation is less frequent. An example is a person firing a gun into a crowd of people killing someone. It is an act that demonstrates a callous disregard for human life. 3) Someone breaks into a house and during the burglary he kills a person who tries to stop him. See an article about a now infamous actor, Lillo Brancato,charged with this here.

Murder in the first degree: A person intentionally kills someone (murder in the second degree) and: 1) the victim is a police or corrections officer, 2) the victim was a witness to a crime, 3) the murder was done for money, 4) the murder was done during a first degree burglary, first degree robbery, first degree kidnapping or other listed crime, 5) the suspect causes serious physical injury to someone other than the deceased victim, or 6) the victim was a judge.

Notice police officers and judges fall in this section, not assistant district attorneys.

There are additional sections and scenarios that I did not discuss because they do not occur as frequently. If you want to read them all, look here.

It is difficult to explain to a family who lost a member how the facts of the case fit into a certain section in New York's Penal Law. I try to spend as much time as necessary and answering every question no matter its content is the best way to start the family through the legal process. There are so many laws and nuances that it is difficult for even many lawyers to comprehend.

And you ask about the death penalty? That is the easier question. The New York State Court of Appeals declared the death penalty in its current form illegal in 2004, and again in 2007 and the New York State Legislature has not moved to change the provision since. So, there isn't a death penalty in New York unless the Legislature drafts a new statute.

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Courtroom Conversations

I hope you enjoy some of the comments I hear on a daily basis.

1) An ADA handling an appeal of a robbery case I tried a few years ago called to discuss the case:

Appeals ADA: Do you remember this case?
Pros. Dis.: Sure do. What's the issue?
Appeals ADA: I can't believe we got a conviction with that evidence.

Thanks for the support.

2) During my last trial. The defendant stabbed the victim in the abdomen severing an artery and causing doctors to remove a piece of her stomach. Our witnesses saw the defendant picking up a knife from the ground.

Defendant's father talking to defendant's attorney during a break in the trial:

Damn, you know that b***h is lyin'. You don't get those injuries from stabbin' with no knife. You get it from usin' an icepick.

Thank you sir. I did not discover how he knew that.

3) During a bail argument:

Prosecutor: In addition to the strength of our case, I should note the defendant has forty-three prior convictions.

Defense Attorney: Judge, I would like to note that only two of those are for felonies. And, of those forty-three convictions he has not had one warrant for failing to appear in court.

Judge: He should be very proud. Bail reduction denied.

You have to applaud the effort.

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Plea Bargaining

Plea deal, plea bargain, cop a plea, cop out - just a few phrases to describe a complex legal process where a defendant chooses to plead guilty to a crime. There are various methods and reasons for a plea and I'll discuss some of them to shed light on it. We'll be discussing felonies here, so if you are interested in misdemeanor plea bargaining make a comment and we can discuss.

In New York, there are two times a defendant can plead guilty - pre-indictment or post-indictment and both have their own special set of rules. Check out a prior post for more information on the legal track a case follows. I should note that there is no right to a reduced plea bargain for any person. A defendant can always plead guilty to the highest charge, after a felony hearing, but a reduced plea is solely at the discretion of the District Attorney's Office. It is an enormous responsibility and, as you will read, it is not something considered lightly.

Pre-indictment plea bargaining is generally more beneficial to a defendant. There are less rules and more flexibility over what charge a defendant can plead to. In addition, the most advantageous plea bargains are offered prior to securing an indictment.

In post-indictment situations, many prosecutor's offices do not allow a defendant to plead guilty to anything but the highest charge. There are two main reasons for this:

1) Ensuring a case is sufficiently investigated so that when it is presented to the grand jury, only the sustainable charges are submitted for the grand jury's consideration (not necessarily the charges filed by the police). We do our best not to charge a defendant with a higher level crime than we can prove in an effort to get a plea. That is gamesmanship, not justice.

2) If there is no plea deal offered following an indictment, prosecutors and defense attorneys are more likely to work out a deal before all of the work required to present a case to the grand jury and prepare a case for trial begins. It is in the defendant's best interest to resolve the case prior to an indictment because he/she knows they will not be getting any benefit following a grand jury indictment.

Also in post-indictment situations, the penal law and criminal procedure law provide restrictions on what crimes a defendant can plead guilty to depending on what the highest charge is. In most cases, these restrictions don't exist pre-indictment.

So what factors do we as prosecutors consider in offering a reduced plea? Some considerations (not in order of importance):

1) Nature of the charge - it makes a difference if the charge is a homicide or if it is criminal mischief (example - throwing a rock through a window).

2) Whether the case is pre- or post-indictment (see above).

3) Defendant's criminal history, if any - Depending on the history, a sentence can be increased for previous convictions or some programs (like rehab and probation) can be taken off the table completely.

4) Victim's request - While there is no law in New York requiring a victim to sign off on a reduced plea, we do take their views into consideration.

5) Defendant's level of cooperation - it does matter if the defendant agrees to cooperate and testify against his co-defendants or cooperate in another case.

6) What we can prove - we offer a reduced plea based on the charges we can prove at trial, not the charges the police filed when the defendant was arrested.

7) Possible sentences - each level of felony contains different sentences. We analyze the possible sentences the judge can impose when deciding what reduced charge to offer.

There are countless considerations we analyze when deciding to offer a plea bargain. What do you think is the most important consideration? Should all defendants be offered a plea bargain regardless of any consideration? What are some of the downfalls of this system? Check back later this week for some answers to the last question.

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Most Dangerous Cities in the Country

Despite the loss this week, New York State must be doing something right. This is one list we are proud not to have made.

A few thoughts:
1) Alaska? Seriously? Look at the picture of Anchorage at night. Who could commit a crime in such a beautiful place? But then again, isn't it night for months at a time? People must need something to keep themselves busy.
2) Check out the picture from Springfield. Maybe if the cameraman called the police to report crime instead of snapping a picture of camouflaged men building bombs near the capitol crime would drop.
3) There's not a city in New York State in the top 10. In the words of my brother, a detective, "You're welcome New York."

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Wins and Losses

Four hours of deliberation. Five jury notes requesting testimony read back. Three lawyers (defense attorney, second chair, and me) attempting the impossible task of deciphering whether the jury was leaning with me or with the defendant. Phone calls back and forth between the court and my cell phone requesting my presence for another note. Finally, the final phone call.

Clerk: We've got a note.
Me: Is it a verdict?
Clerk: Yes.
Me: Inaudible gasp and stomach grumble.

Despite all the trials I've done, I cannot shake the stomach grumble when I get that phone call.

The defense attorney is already in the courtroom. I walk to the prosecution's table with my co-counsel and take our seats next to the jury. The defendant is brought in and the judge emerges from chambers moments later. My thoughts drift to before the week-long trial. Before the witnesses and evidence and schedules that need to be coordinated. Before the last minute witness was found in Virginia and flown in. Before the sleepless nights and feigned composure in front of the jury. I think of one of the first lessons I learned as a trial attorney.

Don't react to the verdict, whether it's in my favor or not. This is the jury's decision. We did our best in representing the People, but it is in the hands of four men and eight women and their decision deserves respect.

Guilty means there was a measure of justice for the victim, but the defendant will now be going to state prison for a significant portion of her life for her first offense. I don't celebrate the victories because a crime just means that one person chose to act and now that choice has affected so many more lives in a negative way that it seems imprudent to revel in it.

Not guilty means the defendant leaves and avoids punishment. Even though I'm confident in her guilt, the jury may not be and that is why these people took time from their lives to serve. We asked this jury to hold us to our burden and, when they did, we failed.

The jurors amble in, six in each row. I avoid eye contact with any of them. All secrets will be revealed in moments and I have to focus on squashing that queasiness in my stomach.

Judge: Has the jury reached a verdict?
Foreperson: We have.
Judge: Will the defendant please rise. (Said like a statement, not a question). Is the verdict unanimous?
Foreperson: It is.
Clerk: In this action, the People of the State of New York vs. (omitted), on the charge of Assault in the First Degree, how do you find?

My vision is focused on a small spot on the mahogany table in front of me. There's a glass top covering it and underneath the glass it looks like something's trapped. I'm confident in the next word but can't look away from the spot.

Foreperson: Not guilty.

Three days later - Despite the consolations from co-workers and family, this will hurt for a while even though I try to detach from the emotions of these cases. I don't agree with the verdict, but if I didn't respect the choice made by the jury, a right guaranteed in the Bill of Rights, why did I swear to uphold the constitution?

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