Monday, June 4, 2012

Day in the Life of an NYC ADA (Finale)

Check out Part 1 and Part 2.

Lunch was spent calling the officers for the surprise trial I was starting on Monday.  Thankfully, it was a gun case, which required no testimony from civilians.  I just had to pray none of my officers were on vacation.  They weren't and I started to feel better about the day.

The officers I had sent to scour the streets of the Bronx returned at 2:00 with the eyewitness.  He was unhappy and angry.  He sat across from my desk and refused to testify.  I told him I'm putting him into the  grand jury and asking him questions.  He swore he would not answer any because he "ain't no snitch."

I stood up and closed my office door.

"How old are you?"  I asked.
"Twenty-two," he said, looking out my window.
"Any kids?"
"One and another on the way."
"Well, that boy that you watched almost die on the streets is eighteen.  He has a one year old and wakes up every day thankful he can see his daughter again.  The next person that this guy shoots may not be so lucky.  And you can help stop him today.  You can save someone's life.  Maybe yours."
My twenty-two year old friend just nodded.

It was enough for me.  We walked across the street to the grand jury.

I informed the coordinators that my defendant was indeed testifying.  We called it a waiver.  That's because any witness who testifies in front of a state grand jury is given immunity for any topic they testify about.  In order for a defendant to testify, he must bring an attorney and agree to waive those rights both orally and in writing.  If he didn't and he testified, we couldn't prosecute him.

The coordinators were gracious and let me cut in line with my eyewitness.  He turned from hostile to hesitant.  I spent ten minutes asking him questions and the police then took him home. 

He shook my hand before he left.

It was 2:30 p.m.

There are two kinds of waivers - in and out.  An out waiver means the defendant is not in custody.  An in waiver means he is.  In waivers always happen in the afternoon because court officers needed to escort the defendant into and out of the grand jury.  Their morning was full of other responsibilities so the afternoon was the only time.

I informed the court officers that I was ready for my in defendant.  Other ADAs jumped the line to get their cases into the grand jury before my waiver.  Waivers routinely took a long time.  With witnesses, I wanted to put only enough testimony in to meet my burden in the grand jury.  That meant brief questioning.  With defendants, they had an opportunity to speak and then I was allowed to ask questions.  This was always expansive.  Then, the grand jury would vote on the case. 

It was 3:30 when I saw the court officers enter the elevator that leads to the lock-up.  I always wondered what happened to the hour between the time I told them I was ready and they went to get the defendant.  It's like a magic act.  You can't know all the secrets.

4:00 and the officers brought the defendant up.  He spoke with his attorney briefly and the attorney told me the waiver was still on.

4:00 on a sunny Friday.  The grand jurors were required to stay until 5:00.  If the waiver went without problems, it would end around 4:45.  Then, the grand jurors would vote the case.  This would put them past 5:00.  And that was if no one else had to rush a witness or a vote in before the weekend.  I followed the defendant and his attorney into the grand jury.  The line of assistants sitting on a skinny window ledge outside the grand jury chambers told me 5:00 was a pipe dream.

The defendant placed his left on the Bible and raised his right.  He swore to tell the truth.  He answered my litany of questions, agreeing to waive his right to immunity.  He made his thirty minute statement about the case.

I'd done enough waivers to know how they all began.

"My name is _______.  I'm only ______ years old.  Please excuse me because I'm nervous.  I didn't do anything.  I work at ______.  I've got _____ kids and take care of my sick mother."

The defendant claimed that he was merely a witness, not a participant.  He said he saw the shooter, but didn't get a good luck at him and definitely didn't know his name. 

In response to my questions, he said he didn't come forward to the police because he didn't want to get labelled as a snitch.  He didn't know the victim or eyewitness (even though he and the eyewitness grew up across the street from each other).  He admitted his prior crimes, but said he always "copped to what I did.  I didn't take a plea here, cuz I didn't do nothin."

No Perry Mason moments.  No breaking down and admitting everything.  It was a routine waiver.

It was after 5:00 when the defendant left the grand jury.  One of the coordinators was outside.  I knew what was coming.

"We've got two cases to vote.  They'll be quick.  Let them go first, then you go back in and vote."

I nodded and gathered my things from the chambers.  I counted the grand jurors - 20.  I needed at least 16 to take a vote.  And of those 16, 12 had to agree to indict. 

The two votes were quick, but still took 20 minutes.  It was after 5:30.  Two grand jurors left.  I was down to 18 remaining.

I walked back in and all 18 were gathering their belongings.  It was a collective groan when I reappeared.

"Please, I'm your last vote.  Please stay and get this done."

One passed me without looking.  17.

They eyed me as I stood in the doorway.  They sat down.  I read the charges to them and they deliberated.  It was 6:00.  These citizens conscripted to serve were working overtime for no pay.  I appreciated every second of it.

A knock came at 6:15.  They asked me to re-read the charges.  That meant some people were thinking about dismissing the case.  I re-read them and went back out with the stenographer.  I made a few jokes as we waited.  Mostly, I paced. 

The door opened at 6:30.  One more grand juror leaving.  I was down to 16.  If another one left, there could not be a vote and I'd have to release the defendant and recharge the case next week. 

6:45 and the door opens again.

"True bill," the foreperson said.  She looked tired and had gathered her belongings.  She wasn't staying one minute later.

They filed out solemnly.  I went back to the office and changed into my sneakers, leaving the paperwork that comes with a grand jury indictment until another day.

I was returning to the office the next day anyway.


  1. "I always wondered what happened to the hour between the time I told them I was ready and they went to get the defendant. It's like a magic act. You can't know all the secrets." Hah hah, I love this!

    And geez, that grand jury thing really stinks! All that and you couldn't get a vote? I don't know how you guys do it?

    I had a question about your reluctant witness. If you HAD gotten a grand jury vote and had been able to indict, would you then need that same reluctant witness to testify again at the trial? And in those instances where you do, do you lose a lot of reluctant witnesses between the grand jury and the trial?

  2. Yes, we would need the same witness and more. I always tell my witnesses that there testimony doesn't end at grand jury. Over 90% of our cases end in pleas before trial, so it is unlikely the witness will testify. But I always let them know there is a chance.

    But we do lose a lot of witnesses. Then the judge issues a material witness warrant and it is not fun seeing your witness or victim brought in by the police in handcuffs.