Wednesday, September 12, 2012

Decline to Prosecute

It's no secret that I was born in the Bronx.  Well, my legal career was.  My infancy was in the Bronx DA office, criminal court bureau.  There was three weeks of training and then we were thrown into a frenzy of misdemeanor activity.  We can call that the toddler stage.  I transformed from neophyte to an adequate attorney, eventually becoming competent.  Grand jury, vehicular crimes, and felony trials were adolescence.

Complaint room, arraignments, MCP, Part 20, 30, 40, 50.  These were my daily assignments.  The Bronx DA office and surrounding courts were open 365 days a year from 7 a.m. to 2 a.m.  It's not your typical court which mixes perfectly with your atypical area.

I started with 45 colleagues and joined a group of 400 ADAs to prosecute crime in a population of 1.4 million people.  That means one ADA for every 3,500 people (compare that to my current county where there is one ADA for every 10,300 people).  Why so many ADAs?  The Bronx sees more violent crime than any other county (despite huge reductions over the last two decades) and also has an incredible amount of arrests per year.    

An article came last week about the Bronx DA's office complaint room policy of declining to prosecute cases with uncooperative victims.

I've explained in a previous post how a case moves from arrest through trial.  In another post, I discussed how the complaint room works and argued against upset police officers that took umbrage at the Bronx DA for declining to prosecute so many cases.

This is how the complaint room works.

ADAs are assigned to various eight hour shifts ranging from 7 a.m. to 2 a.m.  A supervisor also covers an eight hour shift during the day and ten hour shift at night.  There is also a bureau chief who oversees the operation of the complaint room and arraignments.

The complaint room has since been remodeled.  It used to be a large space cut by makeshift cubicles, slicing the area into private rooms and cubbies.  Some cubicles had doors, some did not.  Some had working computers, printers, and telephones, and some did not.  I actually enjoyed the early shift because it allowed me to get the best cubicle and also to get out early.  The cubicles provided a measure of privacy, but still allowed each person to overhear what was happening next door.

ADAs waited for cases to come through the support staff who screened the cases and placed it into one of two bins - PSNY and victim.  PSNY meant victimless crimes like gravity knives, drugs, or DWI.  As a misdemeanor assistant we were only allowed to screen and write up misdemeanor cases, both PSNY and victim, and all narcotics.  Once I graduated to felonies, we could write up all crimes.

The ADA read through the paperwork and then interviewed the officer, either over the phone if he is at the precinct, or in person if he is at the complaint room.  The ADA is determining whether the police lawfully arrested a person, whether the search meets Fourth Amendment standards, whether the identification is suggestive, and whether the police need to do more investigation.  If it is a valid arrest, the ADA will draft the paperwork for the officer's signature.  If not, the ADA must conference with a supervisor before declining to prosecute it.

In victim cases, the procedure is similar.  Except that after speaking with the officer, the ADA speaks with the victim who has come to the complaint room.  One of three things happen.  The victim tells you he/she does not want to go forward, the ADA decides a crime occurred and moves it forward, or the ADA decides a crime did not occur or there isn't enough evidence and declines to prosecute the case.

The article discusses cases where victims do not appear in the complaint room.  If a victim didnot appear in the complaint room, we sent police officers or detectives to look for him/her.  We call their phone.  We do everything in our power to find them and speak with them.  I have spoken to victims over the phone, in the hospital, and in person, while in the complaint room.  A case only gets declined to prosecute when the victim fails to appear for no reason, we have made numerous attempts to find them, and the crime is a low-level offense.  Serious offenses with evidence other than the victim's word will be written up and moved through the system to arraignment.  Again, this is my experience.

Just one story to share that should give you insight into what it was like to work there.  I picked up a domestic violence case.  I spoke with the officer, who informed me the victim was present with her child in the waiting room.  She only spoke Farsi, but possessed enough English to say she did not want her husband charged with assault.  She wore a hijab and niqab, covering her entire face.  Only her eyes protruded the veil, which showed a purple circle forming around her left eye.  We used a translator service through AT&T, but I had to call into it.  I called the service, finding a Farsi interpreter, from my cubicle while the victim sat in the cubicle next to me on a different phone.  I spoke to the interpreter, who translated and relayed it to the victim next to me.  She politely informed me that she did not want to press charges.  I politely told her she should because this was the fourth time.  She told me, through the interpreter, that she would press charges the next time it happened.  She would wait for the fifth time.  I said the fifth time could mean her children would lose their mother, but she refused to sign any paperwork.  And so it went for thirty minutes. 

So what do you do with a woman who is assaulted every few months?  She would call the police to get her husband away from her for the night, but then refuse to press charges because she doesn't want him in jail.  She wants him home so he can work and make money.  Is it okay to decline to proseute one time?  Two?  What is the correct number when the victim refuses to testify?

We declined.  The victim spoke to our crime victim's advocate who specializes in domestic violence before we made the decision.  The victim decided she would never testify or sign the charges.  Therefore, we had no evidence.  And so is it right to keep a person in jail with no evidence?  Even though he is an abusive husband?  Do we prolong the case through the system when the end is already written?

Obviously I still think about it.  I hope she's okay and that there was no fifth time, although I suspect there was.  It's odd the cases that trail in my subconcious, springing forth like the villian in a horror movie while I'm trying to sleep.

The numbers do not lie.  The Bronx declines to proscute more cases than any other borough.  Cases drag through the court system and victims' emotions pass through a spectrum, ranging from initial anger to an ultimate indifference when a case comes up for trial two years later.  There are methods such as subpoenas and warrants that are used in more serious cases.  But if the victim never wants to cooperate after speaking with the police, the DA's office, and crime victim advocates, should a low-level offense be forced through the system until it dies on speedy trial grounds?  What would that do to a system that is already operating every minute of the day to handle its current workload?  And the ADAs and public defenders who barely keep their head above water on cases where victims are actively involved?     


  1. Wow excellent insight; great post!

  2. What a great post! I think if someone is going to fight you every step of the way through prosecution or not be consistent or be there to see it through, then your time might be better spent prosecuting other crimes where you have cooperative witnesses!