Monday, April 30, 2012

What Happened to Miranda?

I exchanged all my files and a mild Northeast winter for palm trees and heat for a long weekend.  Even crime fighters need a break.

On the plane, I thought of this post.  Not many people are aware of what happened to Ernesto Miranda, the man made famous by the Supreme Court in the case of Miranda v. Arizona.  I've discussed Miranda warnings and New York law previously

But, what happened to Ernesto Miranda after the Supreme Court reversed his conviction for rape, kidnapping, and armed robbery?  Arizona retried him, without the confession, and a jury again convicted him. 

He spent eleven years in prison and then was on parole for a few years.  He spent those years peddling personally autographed Miranda cards. 

In 1976, he got in a violent altercation and was stabbed to death.  Police questioned the suspect with a card labelled "Miranda Rights."  The suspect did not confess to the crime.  The police released him and he promptly fled to Mexico.

The case shifted the legal landscape surrounding confessions.  Miranda's name is used everyday across this country.  It's odd to think that Ernesto Miranda, a convicted rapist, is one of the most recognizable names in the country.

See you all Wednesday.

Friday, April 27, 2012

That's My Work, Son!

There are many cases where you just find the police story a little too far fetched.  A little too unbelievable.  Sometimes we need a life lesson to reinforce those times.

I play in a weekly basketball league.  My opponents are all at least ten years younger than my team.  It's a league to benefit inner city youth and to help provide opportunities off the street.

This past week, I witnessed something I never thought I'd see in life, let alone a basketball court.

I sat in the bleachers, waiting for the game before me to finish.  A player on the team currently playing had just subbed out.  The ref walked over to him, holding something.  The game was still going on.

"You dropped this," the ref said.  The ref held out a plastic bag.
The player didn't pay attention.
The ref pushed the player's shoulder.  "Hey, you dropped this."
My attention is drawn to the interaction.  The ref held a clear sandwich bag.  Inside, are tiny rock-like crystals.
"Oh, damn son.  That's my work, son.  I dropped my work."
The player took the bag and pocketed it again.  Then he substituted back in the game with the goods still in his pocket.

A few issues.  First, it's a league to keep youth off the street, not bring the street to the league.  Second, how could he possibly keep playing basketball with the bag?  He couldn't have put it anywhere else?  Third, crack-cocaine should not be called work.  (Interesting note, I also learned this week it's called an onion on the streets).  Fourth, if an officer brought this fact pattern to me, I would have a hard time believing someone was so stupid.  Sometimes I need to see to believe.

Wednesday, April 25, 2012

Focus Group

I was speaking with a friend of mine recently.  She is a civil law attorney.  Specifically, she handles personal injury cases on the plaintiff side.  She told me about a focus group she was running before her next trial.

As I understand it, the attorneys for the injured person hire a group of citizens who represent the potential jury pool.  Then the attorneys spend a few hours laying out their case and getting feedback from the focus group.  Strengths, weaknesses, pitfalls, what types of themes work, what types don't work.  This aids the attorneys in preparing for trial.

I thought things like this only existed in movies or in the largest law firms in the country until our conversation.  I've definitely never heard of it in a criminal case.  That seems odd.  People fight the hardest and pay any amount of fees in cases where the argument is over money.  Where the issue is a person's freedom, parties are generally amicable and there is less money spent preparing.

Prosecutors can't run focus groups.  We don't have the time or money to pay the group.  Also, I wouldn't want the details of my case leaked to anyone off the street.  There is no guarantee of safety for my victims.  Criminal defense attorneys can't do it either.  They don't have the time.  If they spent that amount of time preparing for one case, their others would suffer.  Their income would suffer too.  If they are court appointed, the court will not authorize payment for a focus group.  The only way is if the attorney is retained and the defendant is willing to shell out some big bucks for a focus group. 

I would love to do a dry run of my case with a group before the actual trial.  Every time I speak to jurors after a trial I learn something I could have done better.  If I could get that information before trial, I could avoid potential pitfalls. 

Unfortunately, it's unrealistic in the criminal system.

Monday, April 23, 2012

In Defense of a Culture

One of the most interesting trials I've ever followed is going on in Norway.  As CNN reports Anders Behring Breivik is accused of using bombs and guns to kill 77 people last summer in Norway.  Breivik has admitted the murders, but claims he did them to save Norwegian culture.

The Norwegian proceedings are strikingly different from American courts.  For instance, at the beginning of trial, prosecutors lined up to shake hands with the accused killer and even exchanged pleasantries.  I've never seen that in any murder trial.  (Although in my first misdemeanor trial in New York City after the judge found the defendant not guilty, the defendant came up to me and shook my hand and told me I did a good job). 

Patience seems to be the key to the Norwegian system.  Breivik read a long statement at the beginning of the proceedings.  In the U.S., a self-serving statement filled with bolstering and inflammatory comments would not be allowed if the defense tried to put it in evidence.  

Further, as reported by Reuters, the maximum sentence for killing 77 people is just 21 years in jail.  In the U.S., this would be a capital crime and Breivik would be subject to the death penalty.
There are many legal issues in this trial.  Breivik was initially diagnosed as a schizophrenic when first examined.  At a second review, doctors declared him sane at the time of his crimes.  Apparently, Breivik is adamant that he be viewed as sane.  Breivik's best defense may have been an insanity case, but he has tied the hands of his legal team by demanding they not pursue an insanity defense.  A defense attorney's job is difficult to begin with, but it becomes impossible when the client disregards legal advice.  The defense is that he was defending Norwegian culture against Islam and immigration.  

You can compare this to self-defense law in the U.S. as discussed here.  

There is always a debate about what type of system is the best.  The United States uses an adversarial system.  Lawyers representing their clients present evidence before an impartial trier of fact (judge or jury).  The trier of fact attempts to determine the truth.  This system developed in common law and has advanced through our Constitution and the laws that stem from it.

Many countries use an inquisitorial system.  This is where a judge or group of judges perform the investigation and decide the truth.  The opposing sides do not attempt to persuade the judge.  There is no plea bargaining in an inquisitorial system because the system decides what happens, not the individuals in it.  

There are different benefits and drawbacks to each system.  A topic for a future post.

In Oslo, the judge will decide the fate of Breivik over the next ten weeks.  Unlike New York state murder trials, histrionics and outbursts will not be part of it.

Killing in defense of a person is legal under certain conditions.  But killing because you are afraid your culture is dying?  It's an uphill battle.  I'll keep watching and keep you posted. 

Friday, April 20, 2012

Eric Smith - 19 years later

On August 2, 1993, thirteen year old Eric Smith did something horrible.  Something unimaginable.  He beat, sodomized, and killed a four year old boy.  Public outrage followed.  Then, shock erupted after the killer confessed.  He was only thirteen.

Even though I didn't live near the town the crime occurred in, I remember the case.  It caused headlines across the state.  Like most of these brutal juvenile cases, it causes people to question the juvenile crime laws.  Are they tough enough?  Are they too focused on punishment?  Not enough on rehabilitation?

The judge gave Smith a sentence of 9 to life.  That means he had to serve nine years before he was eligible for parole.  If he made parole, he would be on it for the rest of his life.  Smith is up for parole again this year.  He's 19 years into his sentence.

Smith claims his actions were a result of bullying.  At the time, everyone thought bullying was something that every kid went through.  In 2012, people are still fighting against that notion.

In New York the sentencing range for a juvenile offender convicted of murder is a minimum of 7 years to life in prison and a maximum of 15 years to life in prison.  I tried a 15 year old two years ago in a murder case.  He shot and killed a man during a robbery.  He confessed, but said he only meant to hurt him.  It went to trial because the defendant wanted the lesser charge of manslaughter.  It didn't carry a life sentence.  The jury agreed with his statement that he only meant to injure, not kill, when he shot the victim in the leg. 

An interesting note in that case.  When that defendant confessed, he was already in jail for another gun point robbery after the murder.  At 15, his street nickname was "murder."  The judge wouldn't let the jury hear about the new robbery or his nickname.  A little too prejudicial, she said. 

So, the question becomes, how long should Eric Smith stay in jail?  He has already been in longer than most convicted murderers that are convicted at double his age.  Should it be a true life sentence?  Should he be allowed out?  What about the victim who would be 23 now?  What would he say? 

Update - Eric Smith was denied parole again in 2014. He is eligible again in 2016.

Wednesday, April 18, 2012

Quarterly Case Stats - April 2012

I put my stats in for the grant yesterday.  It only took three reminder emails from the grant coordinator. Compare this quarter's with the last quarter here.  These stats deal with the last three months (January-March). 

It seems like I just did this.  Can three months really pass that quickly?

Total cases handled: 66 files

Number of pleas taken: 30

Number of cases closed after arrest but before indictment: 10

Main reason why:  Witness recanting their identification
Number of cases where guns were used:  48

Number of trials: 2
Number of successful trials:  2

Saddest interview:  At a victim's home.  Two 14 year old girls answered the door.  They were the victims.  Three children under five ran through the house during the interview.  There were no sheets on the beds.  They were pinned to the windows as curtains.  I couldn't put any paperwork on the kitchen table.  The bottom of whatever was placed on the table would remain there permanently after I peeled it off.

The girls told me about a home invasion robbery.  The girls had identified the robber, then recanted their identification.  During my conversation, they said their mother forced them to sign the statement saying the defendant didn't do it.  The mother came home during the interview.  Mom said the defendant didn't do it.  Where you there, I asked.  No, he just told me he didn't do it, she replied.  Did you tell your daughters to sign these statements, I asked.  Yes, she said, he told me he didn't do nothin. 

Oddest Facts:  17 year old defendant is twirling a revolver in his hand, like he was in the Old West.  It fires and hits a pregnant teenager in the chest.  She is recovered and the baby is healthy.

Youngest defendant: 15 (robberies)

Number of defendants who fired their assigned attorneys:  2

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

Toughest case to resolve appropriately: Two drunk, suburban high school students stole a federal officer's handguns and went on a reckless shooting spree, hitting cars and a house.  They also pulled two cars over with the stolen bubble light. 

Resolution in that case: The judge gave youthful offender treatment (sealed records) and 5 years probation.

Worst offender of the quarter: A 19 year old pleaded guilty to two counts of robbery in the first degree.  He would call cab companies until a driver of Middle Eastern descent arrived.  According to him, "black and white cabbies don't carry no money.  You gotta hit an Arab one."  He would then pull his gun and rob them.  In the first robbery, he shot the cab driver in the head, leaving him for dead (he lived).  In the second robbery, he pulled the trigger, but the gun didn't go off.  So, he pistol whipped the driver.  Sentence is pending.
Total number of cases decreased, but the number of pleas and trials increased.  The number of cases closed before indictment stayed the same.  Surprisingly, the number of defendants who fired their lawyers decreased.

Monday, April 16, 2012

Fed vs. State

It was a question posted recently by an anonymous commenter.  Describe the differences between an ADA (Assistant District Attorney) and an AUSA (Assistant United States Attorney).

We'll look at three different areas:  jurisdiction, discretion, day-to-day.


A District Attorney's Office (DAO) can prosecute any person that violates their state's penal law within their county.

A United States Attorney's Office (USAO) can prosecute any person that violates certain federal laws, usually contained in the United States Code.

Oftentimes, crimes will overlap.  The offices then need to speak and determine the best course a case should take.  Which jurisdiction has stiffer penalties?  Which jurisdiction has the resources to investigate and prosecute?  In my experience though, if the FBI and USAO want a case, they can pull rank and take it.

An interesting difference is the way a case reaches each office.  On the state level, the police make arrests and then the prosecutors must choose to prosecute the crime or not.  On the federal level, arrests are generally not made until the USAO has given their seal of approval.  This allows the USAO to build a strong case and secure indictments before a person is even aware they are a target.  A DAO comes into the case well after the police conduct an investigation.


An ADA has much more discretion than an AUSA.  In a DAs office, there is an elected District Attorney.  Every county in New York State has a District Attorney.  Therefore, there are 62 DAs offices in New York State.

Under the DA, there are numerous ADAs.  The DA sets policies on various types of crimes and leaves his or her ADAs to operate within those policies.  We usually only conference cases with our direct supervisor before proceeding forward.  Very few people are involved in the decision making process.  The DA has prosecutorial discretion over which cases get prosecuted and how.

The Attorney General of the United States is in charge of all the USAO.  Eric Holder, Jr. currently holds the position.  The fact that the federal government is involved makes the decision process much more complex.  AUSAs do not have much discretion.  There are various levels of supervision in each USAO.  Then, those decisions are sent to Washington, D.C. for review by the Attorney General's office.

What can get done in a five minute conversation without one piece of paperwork being drafted in the DA's office would take weeks and numerous memos in the USAOs office.


I've posted previously on the day-to-day activities of an ADA (here, here, and here).  The day of an ADA and AUSA are very similar.  Both spend their time responding to voicemails, emails, and going to court.  Also, they spend their time conferencing with witnesses and law enforcement.

The main difference comes in the paperwork and court proceedings.  As I understand, AUSAs spend an incredible amount of time drafting legal briefs for court.  Every issue is litigated on papers before it is argued in court.  In state courts, most legal issues are simply argued orally in open court.

Federal court proceedings are more formal than state court also.  There is a large variation between every supreme and county courtroom I practice in.  But most of the time, conferences, jokes, and questions about friends and family are exchanged between the judges and attorneys.  I've found that the informal conversations between colleagues in state court doesn't exist in federal court.

There are more differences - the application process, credentials needed, the pay (yes the pay!).  We'll address more issues in future posts.

Friday, April 13, 2012

Up In Smoke

My Pro Se series usually focuses on defendants.  But sometimes, the police need to get involved.

Here's the best story of late.

Suspect robs victim of a cigar (meaning suspect punches victim and takes the cigar.  A robbery by definition, but it may not remain one when our office sees it).  Suspect is found ten minutes later carrying the same brand of cigar the victim described.  Suspect is brought back to the precinct for questioning.

During questioning the police ask if the suspect wants anything.  He says he can really use a smoke.  A cigar if they have one.  Sure, the police say.  We've got one.  What about that one you came in with?

And that was the end of the possession of stolen property charge.

Thursday, April 12, 2012

"We've Got a Verdict"

I've discussed the phone call in an earlier post.  The court clerk called my phone with those four words.  Deliberations started at 2:10.  The verdict came at 4:15.  It had been two hours.  This was the first note.  The jurors hadn't asked to see any of the evidence.  They hadn't asked to have any testimony read back.  Nor the charges.

My thoughts zoomed.  Two hours is too short.  Must be not guilty.  How could they take two hours?  No notes?  They didn't want to see or hear anything again?  What were the jurors thinking? 

I avoided my colleagues as I walked to the elevator.  That way I didn't have to tell everyone I was going to get a verdict.  I wouldn't have to answer their questions the moment I returned.

The courtroom was on the first floor.  It was the same courtroom as the stabbing trial I lost, described in the above post.  Bad karma?

I pulled the metal handle of the light-colored wooden doors.  It was moist.  Was it from my fingertips?  The defendant and his attorney weren't in the courtroom yet.  The jury note said, "we have reached a verdict."  No indication to what it was.

The court officer looked at me.  "Got a verdict," he said and turned around.  Wait, what was that?  A tic?  A wink?  Was that my eyes deceiving me?  Did he know?  Was I just looking for signs?

The butterflies never leave.  I laughed and joked with the court officers.  I made small talk with the stenographer.  I barely heard the conversation.  My mind was inside the jury room.  I wondered what I was about to hear.

The weekend at work away from my family.  Late nights, early mornings, and incoherent dreams.  The phone call I would have to make to the victim.  The second-guessing.  It all merged and churned in my stomach.

The attorney showed with his client.  The judge came out seconds later.  The jury filed in, their faces stoic.

I was somewhere else, watching it unfold.  I stared into the table.  The wheels on the reporter's chair stopped squeaking for the first time all trial.  His fingers depressed keys that meant something only to him.  

The foreperson rose when requested.  He spoke when asked.  No sounds anywhere else.

Guilty, they said.     

Wednesday, April 11, 2012

Verdict Is In...

I'm on my way down to court to accept the verdict, whatever it is.  It will either be a joyful phone call to the victim or a painful one.  Check back tomorrow for the results.

Monday, April 9, 2012

One Witness Too Many

Trial today.  Robbery case.  Four men (16 year old boys really) jumped and robbed a man of money and a cell phone as he walked to the store.  One of the four got away, we sent one to family court, one pleaded guilty, and the last one is going to trial.

Lawyers make a lot of mistakes.  We ask too many questions.  We talk too much during jury selection.  We don't listen to jurors or our witnesses enough.  But, there is one issue that draws a fine line between a mistake and a guilty verdict.

Should I call this witness?

It's the question every lawyer should ask before deciding to put a witness on the stand.  Just because a witness's name will come up during the trial doesn't mean you should call him or her.  There have been many trials where I've called one witness too many.  It always burns you.

Can the witness help you?

This may seem obvious, but so many lawyers miss this issue.  Why put a witness on the stand who went to the crime scene after the investigation was complete.  If there are two police officers who see the same version of events, do we need to call both?

Every person views a situation differently.  We stand in different vantage points and all bring our own interests.  If I went to a wedding, I would not be able to tell you what the bridesmaids dresses look like or what kind of flowers were on the table.  But I would be able to tell you who got married.  Maybe.

Knowing this, why put on five witnesses who are going to contradict each other over minor details.  Will two be enough?  Three?  Maybe even one?

Can the witness hurt you?

This is different than the help question.  A witness can provide fantastic information, but still not be a good witness at trial.

The witness may be able to identify the defendant as the murderer, but will provide a completely different set of facts concerning how the shooting happened.  Is that a good idea if it is contradicted by all your other evidence?

What if you have a gun recovered and the police never tested for DNA.  Is it a good idea to put a forensic scientist on the stand to talk about how great DNA is when the police didn't perform a basic investigative step?

A cooperating witness?  No matter how many times I tell a cooperating witness to just be honest about all his bad acts, something always surprises me.  The defendant was usually friends with the cooperator.  Therefore, the defendant knows everything bad the cooperator has ever done.  It will come up during cross-examination and surprise everyone.  Sometimes, the unknown factor is not worth the risk.

Is there some other way to get the evidence in?

If the witness can both help and hurt, we must decide if there is some other admissible way to present the evidence to the jury.  Did another witness see what he saw?  Is there a hearsay exception?  Is there a document as a business record we could use instead? 

If the witness needs to be called despite the negatives, you might have to deal with him as an unlikeable witness.

In a trial, less is always more.  A clear, consistent, and straightforward case will always prevail over a prolonged case where every possible meaningless fact is addressed.

At least that's my theory.  I'll let you know how it works out.

Friday, April 6, 2012

Another Night in the Life of an ADA

It's a rule to live by.  If you absolutely have to leave the office at 5:00 p.m., do not answer your office phone after 4:30.  It's my fault.  I answered it at 4:55.

Once you answer the phone, it's your responsibility.  So the rest of the night was spent fielding phone calls from police officers and trying to salvage my plans. 

Apparently, a fifteen year old was driving a stolen car.  That was only where it begins.  A high speed chase, an intentional crash into a police vehicle, an injured officer, guns, stolen property, and a string of robberies combined to create one messy case with a lot of legal issues.

As my fellow prosecutor and blogger eloquently wrote, officer involved cases are involved and emotionally charged.  It was my responsibility as the juvenile crime prosecutor.  There are issues concerning how to take a proper statement from a juvenile, how to charge him, whether he can/should be charged as an adult, and how to conduct the investigation. 

The hours and phone calls piled up.  The injured officer was released from the hospital.  Statements were taken.  Charges were filed. 

If not for my prior commitments, I would have went to the station and helped out however I could.  That's the fun part about the job.  Sometimes you get to respond to an investigation as its unfolding.  You start to feel like a cop.  Most of the time, you are cleaning up an investigation.  If you are involved from the beginning, you can direct the investigation.  By the first few days, most of the investigation is complete if that happens.

These nights are not the norm.  My family is not happy when I'm called out from home or receive phone calls, but they understand.  I think they do, at least.

Wednesday, April 4, 2012

A Nation in Jail

We all love to know that America is in the lead.  We've risen to the peak.  Other nations can't catch up.

The U.S. is winning the incarceration race.  For every 100,000 people in the U.S., 723 are in jail.  The next closest country is Rwanda at 593.  Check out this map to see the percentages.  Both The New Yorker and CNN had articles concerning these startling incarceration statistics.

Fareed Zakaria and Adam Gopnik argue that the prison population is so high due to the war on drugs.  They say that the war has failed and it is time to repeal some of the laws.  It's a common and heated argument that is taking place across the globe.  Portugal decriminalized drug possession ten years ago.  Drug treatment has increased there, but so has drug use.

Like most hot button issues, people argue vehemently on both sides.  Those in favor of decriminalization point to the incarceration statistics, violent drug trafficking rings, and severe punishment for simple possession.  Those opposed argue that drugs are harmful substances.  Many people avoid them because of criminal and social intolerance.  Taking away punishment and social norms will increase use in society.  Increased use will increase addiction.  Increased addiction will increase the cost of treatment anyway.

This is a simplified version of the arguments.  As I've said before, one of the rules this blog is allowed to operate under is not taking positions on explosive issues like this.  But, that doesn't stop us from asking what you think.  I can agree that some kind of reform is necessary.  The number of people in jail and the number from certain minority groups is incredibly high.

What are the other arguments in favor of decriminalization? Against?  Why decriminalize one drug, if we don't do them all?  Instead of outright decriminalization, isn't there a way to reform the laws and sentences?  New York State has reformed their sentencing on drug cases recently, when they repealed the Rockefeller drug laws.  Isn't this a way to handle the issue?

Monday, April 2, 2012

White Collar

An update from trial last week.  I second chaired a younger assistant on an embezzlement case.  Usually, that's when an employee steals from his employer.  Which was exactly the case here.

A general manager for a large coffee store stole over $14,000 from his employer.  He took three deposits and didn't take them to the bank.  Instead, he took them for himself.  There is no DNA or fingerprints in these cases.  It's even better.  There's a paper trail.

As we told the jury, the paper trail is like DNA and it led right to the defendant.  Bank records, employment records, store surveillance, and an accountant all provided the necessary groundwork to prove the defendant's guilt. 

Now that I've seen the books for this coffee chain, I'm thinking about switching careers.  Anyone want to invest? 

I'm kidding.  Kind of.