Tuesday, February 28, 2012

Guns in Schools

Life comes down to timing.  For my 16 year old defendant yesterday, his timing couldn't be worse.  He brought a gun to a local high school back in October.  Yesterday was his sentencing.

Why was the timing so bad?  The tragedy that took place at Chardon High School in Ohio yesterday.  Our thoughts and prayers go out to all the students and family members affected.  The tragedy, unfortunately, highlights the danger of weapons in schools. 

Possessing a loaded firearm in New York State outside your home or business gets you between 3 1/2 and 15 years in prison for a first time offender.

Bring a loaded gun to school?  3 1/2 to 15 for a first time offender.

Bring a loaded gun to school as a 16, 17, or 18 year old?  Anywhere from probation to 15 years in jail.  That's right, a defendant toting a gun into a school is eligible for a sealed record and probation while the guy walking down the street gets a mandatory 3 1/2 years if he's at least 19 years old.

Should penalties for guns in a school be stricter?  There's special crimes in New York for drug dealing on school property.  Should there be special laws for guns in schools? 

The only additional law is for a 14 or 15 year old.  If a 14 or 15 year old brings a loaded weapon to school, the case is tried in supreme court, not family court. 

So what happened to my defendant?  One year in jail.

Friday, February 24, 2012

The Unlikeable Witness

A few weeks ago, I foreshadowed a post about how to deal with a witness the jury will detest.  At long last, here it is. 

There are many reasons the jury will dislike a witness - he lied to the police, he lied to investigators, he has a criminal history, he broke up a marriage in a divorce case, he doesn't pay child support, he got a plea deal in exchange for his testimony, or he lies on the witness stand.

The first question in a trial lawyer's mind should be, do I need to call this witness?  Does this witness provide some material fact that we cannot otherwise get into evidence?  If the answer is yes, then we move on to damage control. 

Jury Selection

Begin indoctrinating potential jurors early.  If the witness lied to the police the night of the crime, tell them.  If he's a five time felon, share it.  If he smoked crack all day and is the only person that can identify the defendant, let them know.  The key is to lay all our cards in front of them.  Otherwise, it looks like we're hiding it.

Ask the jurors if they can still wait to hear the witness's testimony before making a credibility decision.  If they cannot, then they will be excused.  If they can, then we've successfully weeded out jurors who cannot be impartial on the case and took the sting out of the worst pieces of evidence.

Direct Examination

We bring the negatives out through our questioning.  This removes the "aha" moment during cross-examination when the defense attorney believes they caught the witness.  Sandwich the bad information somewhere in the middle of the testimony.

Cross Examination

I'll object to improper questions during cross and try to protect my witness.  The defense attorney, however, will attack with everything he has on the issue.  I don't mind though because I haven't hid anything.  I tell every witness to be completely honest.  If they are honest about all their dirty laundry, it is easy to use on summation.

Closing Argument

There are so many ways to use a despised witness's testimony, that I must cut it down.  First, I always explain that the DA's office doesn't pick the witnesses, the defendant does.  If the jury doesn't like a witness, they can blame him for committing the crime in front of him.  I'm not asking the jurors to become friends with the convicted rapist, just to believe his testimony.

Second, the detested witness boosts his own credibility.  The defense attorney will spend so much time slamming the witness for lying to the police or being a crackhead that I get to use this on summation.  "Mr. Smith sat in front of you on that witness stand and answered every question the defense attorney threw at him.  Do you think it was comfortable to speak about all the mistakes he's made in his life?  Do you think he enjoyed it?  He was honest about his mistakes.  Just like he is credible in his testimony that the defendant killed the victim.  If he was lying or making it up, why wouldn't he lie about all the bad stuff he's done?

Third, when a cooperating witness gets a plea deal I get to argue that he's the defendant's friend.  When a defense attorney attacks a cooperating defendant for his prior record or bad acts, I get to respond that this is the person the defendant associated himself with.  These are his friends, not mine.

These are some ways to control and use an unlikeable witness.  There are many other ways and many other arguments to be made. 

Can anyone think of any other ways to use the witness?  Where is your breaking point with a witness?  What kind of bad things can't you overlook?

Wednesday, February 22, 2012

Avoiding Jury Duty?

Check out this interesting article on someone's journey to find ways to avoid jury duty. 

You can also check out my position on the issue here.

Monday, February 20, 2012


Despite the three day weekend, I've spent a lot of time advising on criminal law.  Through my years in law enforcement I've developed several good relationships with police officers.  We've exchanged cell phone numbers and whenever I need anything on a case, I call them. 

The reverse is also true.  They call me when they need legal advice on a case or to ask if they have enough probable cause to arrest.  As I thought about my conversations with several detectives this weekend, I thought a post on how a suspect gets charged with a crime is due.

The police have the authority to arrest any person when they have probable cause to believe the person has committed a crime.  The police officers then decide the charges as well.

How do they attain probable cause to arrest?  Some examples:

1) Observe the crime being committed (DWI, drug and gun possession)
2) A citizen informs the police about what happened and the police corroborate the information (robbery call and the victim provides a description.  The suspect is arrested ten minutes later, one block away, and is identified by the victim).
3) Someone reports a crime, but there is no suspect.  The police investigate and develop evidence against a person.  (DNA hit in rape or burglary cases, following the paper trail in an embezzlement case).

The police file the charging paperwork at the time of the arrest.  The defendant is then arraigned on this paperwork shortly after.

The time between the arrest and filing of charges is when an officer or detective usually calls me seeking advice.  The questions are either is there enough probable cause to arrest or what charges should be filed.  Many times I instruct the police to gather more evidence before charging.

Once a defendant is charged and arraigned an ADA looks at the case.  If it's a misdemeanor, the ADA may need to file new charging paperwork if the charges the police filed were incorrect.  If it's a felony, the grand jury indictment will charge the proper crimes so no changes are necessary at the outset. 

The police do not need the district attorney's consent to arrest and charge person.  It is the district attorney's discretion to decide which cases to prosecute, however.  The DA's office can also direct the police to arrest someone who they did not arrest initially.

It's an interesting interplay between the police and ADA's.  Most of the time we are of the same mindset regarding what should happen to a case.  There have been many instances where we disagree though.  At that point, the DA's office has the final say on whether to proseute a crime.

So what was the result from all the phone calls over the weekend?  The police arrested a suspect we've been looking for since the New Year. 

Wednesday, February 15, 2012

A Belated Valentine's Day Story

Despite the day set aside to celebrate our loved ones yesterday, the courts remained open.  In deference to a day spent in court on Valentine's Day, I'd like to pass on a true story from the domestic violence part.

This court runs like any other, except that it specializes in domestic violence cases. 

Yesterday, a woman walked into the city court building, through the magnetometers, into the elevator, and into the courtroom.  It happens a thousand times a day.  Except in this woman's case, she carried a giant, red, heart shaped Valentine's Day balloon and giant, red box of chocolates into the domestic violence courtroom.


Monday, February 13, 2012

Vertical or Horizontal? Depends on Your View

Each DA's office uses a different system to prosecute crimes.  A reader asked about them recently and it was a great suggestion for a post.  This post discusses vertical vs. horizontal prosecution and the benefits and disadvantages of each.  I think you'll see its a grass is always greener debate.

Horizontal Prosecution

This is how I started.  A DA's office that utilizes horizontal prosecution will be made up of separate bureaus that transfer cases between them.  

A felony arrest occurs and the case is immediately assigned to the grand jury bureau.  An ADA in the bureau analyzes the case and decides if it will remain a felony or proceed as a misdemeanor.  If it stays a felony, the ADA investigates the case, requests any laboratory testing, interviews the witnesses, sends out subpoenas and search warrants, and finally presents the case to the grand jury.  After the grand jury indicts the case, the case is forwarded to a different ADA in a trial bureau who handles the case until it is resolved through plea or trial.
Vertical Prosecution

My current office uses vertical prosecution.  As opposed to horizontal, one ADA handles the case from the grand jury investigation through trial.  There is no transfer of cases or a grand jury bureau dedicated to investigating cases.


The main advantage of vertical prosecution is that one ADA handles the case from beginning to end.  That ADA is then intimately familiar with all the relevant facts and has (hopefully) fully investigated the case from the beginning.  The ADA in a vertical prosecution office presumably has done all of the case investigation before grand jury because that ADA knows they will always have the case.

Another advantages of vertical prosecution are that the victims and witnesses have continuity in their prosecutor and don't have to tell the same story many times.  
The benefit of a horizontal prosecution office is that it allows an ADA to focus on their specialty.  In the grand jury bureau, the only concern is investigating and indicting cases.  A trial ADA is only concerned with trying cases.  Neither ADA is required to be in every place at once.  An ADA in a vertical prosecution must handle felony hearings in city court, investigate and present cases to the grand jury, try cases, and appear in every courtroom when one of their cases is on the court calendar.

Another advantage is that horizontal prosecution provides a natural training progression.  An ADA learns the laws, practice of grand jury, and necessary investigative steps required to prepare a case for indictment.  That ADA will spend a year or so doing this before moving on to the trial bureau.  A trial ADA starts with low level felony cases (like DWIs or guns) and moves toward serious victim crimes.  

In a horizontal office, you are always relying on another person's work.  As in any job, some ADA's are more diligent than others.  When you receive a file that is organized and fully investigated the life of a trial ADA is easier.  When you receive a file with paperwork everywhere and only the minimal amount of work done, headaches ensue.  In a vertical office, you have no one to blame for your work.  
Even in horizontal prosecution offices, specialized bureaus like sex crimes, domestic violence, and white collar crimes are handled in a vertical manner by ADA's specially trained for those cases.

Which do I like better?  Like I said the grass is always greener.  When I left a horizontal office, I was excited to handle a case from beginning to end.  Now that I'm in a vertical office, my energies are drained when I'm pulled in city court, supreme court, grand jury, and trial all at the same time and some days I miss the horizontal prosecution of cases.  

Friday, February 10, 2012

15 and Life to Go

A Missouri court just sentenced Alyssa Bustamonte to Life imprisonment with the possibility of parole for the murder of a nine year old girl when Alyssa was fifteen.

As you know, I take a special interest in these cases because it's what I do in my office.  When a juvenile commits a specified violent crime, there is always an analysis that we conduct to determine whether we should try the juvenile in adult court or move it to family court. 

Here's what we look for and how it compares with the facts of Alyssa's case:

1) Seriousness of the offense - It doesn't get more serious than murder.
2) Victim's opinion - I can imagine the family of Elizabeth Olten (the victim) wanted her tried in supreme court.
3) Prior record - We don't know in this case.
4) Danger to the community - Alyssa's stated goal was to see what it felt like to kill someone.  She celebrated the murder in her journal after completing it.  I'd say she's a danger.
5) Evidence of guilt - She confessed, wrote about it in a journal, and brought investigators to the grave.  Pretty good evidence.
6) Character of defendant - see number 4.
7) Purpose of the sentence - A murder sentence is to punish and deter others from committing the crime.  Sending the case to family court does not create a deterrence to murder.
8) Age - The defendant's only 15.

This is a glimpse into the analysis we use to determine when a juvenile case will be tried in supreme court vs. family court.  The only thing on Alyssa's side was her age.  In a murder case, that's usually not enough.

What do you think?

Wednesday, February 8, 2012

Eighteen Months Later

Monday marked just under eighteen months from the defendant's arrest for a series of burglaries to the start of jury selection.  We had spent the morning going through individual questions.  At 2:00 p.m., I was set to begin my questioning. 

Then, a funny thing happened.  Before I stood up, the defense attorney asked to speak with the judge.  We approached and the attorney indicated his client wished to plead guilty.

Just like that, eighteen months of preparation ended. 

This happens in more cases than you can imagine.  Defendants who are set on taking a case to trial plead guilty the day it is set to begin.  There are many reasons: 

1) The defendant doesn't realize how serious a case is until 40 prospective jurors are staring at him and judging,
2) The defendant needs to wrap his mind around the amount of jail time involved in an offense,
3) The defendant doesn't think we will go forward, or
4) The defendant doesn't think the victims will show

It's disappointing when you put that much work in and a case ends before it begins.  The excitement and adrenaline remains in full swing for the rest of the day.  But, a sure resolution is always preferred to an uncertain outcome.

The next week and a half are cleared now and that's always a good thing.  It will allow me to attend to some cases that have lacked my attention.  And it gives me time to write some blog posts.

Monday, February 6, 2012

Jury Selection Monday

Jury Selection begins today.  The usual pre-trial butterflies are settling in, but they mix with excitement so I am full of energy this morning. 

I've got my questions all lined up for the jurors.  Who they are, what they believe, what pre-conceived notions they have.  I wonder what their questions are for me though.  This case and arrest occurred in August 2010 (yes, that's a year and a half!).  I know every fact and tangent from every fact.  The jury gets such a limited snippet of the entire case.  They are not privy to everything I know due to the rules of evidence. 

They must wonder why it took so long to get to trial, what happens when we excuse them from the courtroom, why weren't they selected, or what the defendant's background is.

In any down time today, I'll try and think of a questionnaire that jurors can use for attorneys during a case.  This will flip the tables on us.  If the jurors could ask the attorneys questions, what would they ask?

Do any of you have any ideas?  What would you like to ask an attorney during jury selection, during a trial, or after a trial?

Here's a refresher on how jury selection works in NY.

Friday, February 3, 2012

A Difficult Witness

Trial preparations are in full swing for next week.  The defendant and his buddy burglarized a string of stores across New York State.  Jury selection on Monday and the trial should begin on Tuesday.  So far, we've pre-marked 75 pieces of evidence and are calling twenty witnesses. 

One of the witnesses the jury will not like.  They may even despise him.  I wouldn't blame them at all.  Once he's done testifying, I'll tell you why they won't and how he turned out. 

I'll tell the jurors about it during jury selection.  I'll explain why they won't like him.  I'll talk about how we are not asking them to decide if he should come to their house for Thanksgiving dinner, but whether they can decide if he's telling the truth or not despite their feelings toward him.  It's best to lay your major weaknesses in front of the jurors early and gauge their reaction.  This way we can make informed decisions on which jurors to select.

Some jurors will be able to, some won't.  Those that won't will be excused (hopefully!).  We'll see how it turns out next week.  Luckily, he's only one of twenty. 

Wednesday, February 1, 2012

Domestic Violence Report

I've read about blood-curdling screams.  I imagined it was just a very loud scream.  Maybe I'd even heard one before, although I couldn't remember one.

That was until Sunday night.

One of the few snowfalls of the season was progressing to fill the ground and cars with a white cover that would remain only as long as we would let it.  The windows were shut tight against the wind, which seemed like it was finding its way in anyway.

The television played in the background while my wife and I conducted various chores.  Then, the scream.  Long, high-pitched, and retching.  It cut through the snow and followed the wind into our home.  Someone turned the television off.  It may have been me.  I don't remember.

My wife and I looked at each other, each hoping the sound came from the now silenced television.  It erupted again, truly soaking into our skin and letting us know all was not right in someone's world.

At the rear window, I looked long enough to see an older woman holding a younger one.  The younger woman was bent at her waist, facing the ground and letting out screams that could rival the worst thunderstorm.  A man jumped into the driver's seat of a black truck and sped away, slipping on the slick roads.

I watched the women hold each other; the older woman coaxing the younger one inside.  Screams billowed from the younger one who refused to move.  They weren't asking for help and neighbors strode out of their houses to their cars, like nothing was happening.  Should I call the police?  Did they want me to?  Did they call the police?

Even an ADA has reservations, apparently.  The black truck circled back and I didn't know what to do.  Should I run and grab my phone from the living room and call the police or wait and watch as there needed to be a witness and someone to intervene if necessary.

It wasn't necessary.  The driver of the truck stopped in front of the house, somehow disregarding the wailing from the porch, and picked up the winter hat he had dropped.  He sped away again in the snow.

A police car appeared moments later.  Then four more followed.  Flashlights lit my house and the neighborhood's backyards as officers searched for someone who had left.

I spoke to the officers, some of whom I knew.  It was a domestic case.  The driver had hit his girlfriend on their front porch and took off.  Neighbors called the police when they heard the piercing cries.  The girlfriend did not want to report it or proceed with charges.

Domestic violence cases are difficult to handle.  Officers have told me stories of weekly visits to the same location.  A victim will call the police when their significant other is abusing them.  The police will lock the abuser up for the night.  The next day the victim will drop the charges and allow the abuser back home.  It's a difficult cycle for the victim to break free from.

That cycle is not the case in every domestic incident, but a lack of cooperation is more frequent in those cases than in others.  The police pass the cases on to our office.  Then, our domestic violence ADA's handle the case.  Some victims stand firm and testify against their abuser.  Some victims flatly refuse to cooperate.  Some need coaxing.  Some we must force because the situation is so dire. 

The cycle usually follows this pattern when a victim does not cooperate:  1) the victim reports the abuse to the police, 2) the victim files a report and presses charges, 3) the defendant is released from custody and told to live somewhere else, 4) the defendant and victim reunite at some point, then 5) the victim indicates the defendant has changed and does not want to proceed.

The bureau takes a toll on the ADA's.  They only handle domestic cases, which should tell you about the number of cases there are if an entire bureau is dedicated to it.  Every case has the potential to turn out badly for the victim.  There are horror stories of an abuser let out and taking revenge on the victim hours later.

What can you do when the victim refuses to testify against their attacker no matter what the consequence?  The ADA's in this bureau are dedicated to eradicating violence against women.  They usually have a vested interest in it and have participated in clinics throughout law school.  Like any DA's office some are conscripted into the bureau, but then excel.  All of them worry that the worst will happen to one of their victims no matter what the ADA does. 

As for my neighbor?  She never wanted to proceed and we just have to hope things do not end badly.  Do you think domestic violence cases should be handled differently from other cases?  How so?