Wednesday, October 31, 2012

What's 50,000 Volts Between Friends?

As you know, I'm a special prosecutor on a case in another county. 

There's a legal issue we are currently dealing with on the case.  In the first trial, the police used a taser to obtain a DNA sample.  It's not exactly the ordinary way to do it, but here's how it happened.

The Court signed an order allowing the police to obtain a DNA sample from the defendant to compare against DNA evidence recovered at two different crime scenes.  What happened when the defendant refused you ask?  Did they arrest the defendant for contempt and bring him before a judge?  Did they go back to the judge and ask for an order allowing force?

Nope.  The police sent 50,000 volts of electricity into the defendant for a second and a half until he opened his mouth so they could swab the inside of it for skin cells.  The DNA sample matched the crime scene samples and the defendant was convicted.  When the defense attorney asked the police why they thought of the taser, they said it was the defendant who suggested it.

The appellate division reversed the conviction, stating that the force used was too much.  The question now is, are the People allowed to obtain another DNA sample?

In re Abe A., 56 N.Y.2d 288 (1982) provides the framework for obtaining a DNA sample from the defendant.  The Court of Appeals laid out three requirements:  (1) probable cause to believe the suspect has committed the crime, (2) a clear indication that relevant material evidence would be found, and (3) the method used to secure the evidence is safe and reliable. 

There was clearly probable cause in our case, but the manner in which the sample was collected was intrusive, which is why it was suppressed.  So now the question is whether the violation of the Fourth Amendment was so intrusive that allowing the police to obtain a subsequent sample would not deter future police misconduct.

I'm obviously arguing that it is not.  The Court has already used the exclusionary rule which is used to punish police misconduct.  It is not a means to force the police into a worse position because of the use of the taser.  It is to excise the misconduct and anything that flows from it.  The sample we are seeking is based on an independent source than the illegally obtained sample.  It is not the fruit of the poisonous tree because it is not based on the tasered DNA sample.  It is based on the probable cause that existed before the tasering.

Is the police conduct so bad that any future attempts to collect the same untainted evidence should be prohibited?

Stay tuned. 


Monday, October 29, 2012

Hurricanes vs. Snowstorms

I live in a town whose reputation was built on snow.  Once every twenty years a huge snowstorm will hit, piling up drifts over ten feet high and shutting the city down for days.  It is very infrequent and most winters are mild with just enough snow to make the ski slopes pleasant but not enough to create problems.

As Hurricane Sandy (or Frankenstorm) approaches the East Coast, I wondered what I would rather battle - hurricanes or snow.  Maybe we can throw in mudslides, tornadoes and wild fires too.  No matter what area of the country you live in, mother nature has some danger in store for you.

New York State will be battered by rain this week, which means everything will take twice as long.  For me, it means I don't have a lot of time for my planned post today.  So I figured I'd put a survey together.  If forced to live in an area with natural disasters, which would you rather face?

Good luck to everyone facing Sandy and stay safe!

Friday, October 26, 2012

Cannibal Cop

From the "you can't make this up department."

Gilberto Valle was arrested by the FBI for conspiring to kill, cook, and eat around 100 women.  This is an example of one of the cases it is easy to get motivated for and easy to prosecute a cop who breaks the law. 

Check out the full story about Gilbert Valle here

Thursday, October 25, 2012

Powerful Words from an Unlikely Source

Thursday's are usually a post-free day from PD, but I thought I'd break with tradition to provide these words to victim's everywhere:

“Please do not allow my actions and the actions of Muhammad to hold you hostage and continue to victimize you for the rest of your life. If you give those images and thoughts that power, it will continue to inflict that suffering over and over and over and over and over again. Do not give me or him that much power.”

The speaker?  John Lee Malvo.  He was the second half of the D.C. shooting spree that terrorized Washington in 2002.  He was 17 at the time of the crimes and spoke to the Today Show this morning from jail where he is serving his life sentence.  His partner John Allen Muhammad was executed in 2009.  Here is the interview where he claims Muhammad sexually abused him during their time together:

Visit for breaking news, world news, and news about the economy

Are these the words of a reformed young man?  Or something else?

Wednesday, October 24, 2012

Prosecuting the Protectors

Every case is important, whether it is drugs in a car or a homicide of an elderly victim. They all have some bearing on the world and an effect on individuals and society. But some cases are more motivating than others. I am currently handling a case where a defendant committed two nasty home invasions of elderly victims where he stomped them into unconsciousness. The theme, opening, and closing write themselves in those cases.

Cop cases rarely fall into the easily motivated category due to the ramifications that come with the investigation.

Polie officers get investigated for all sorts of crimes - embezzlement, fraud, robbery, perjury, and other theft crimes. But most cases come in two varieties –DWI and excessive force.

The DWI cases usually come after an accident. An officer crashes into someone after a night of drinking and seriously injures the person. The result – career over, huge lawsuit, and the cop’s name sprayed across the papers until the case is resolved. Most police officers understand these prosecutions. They don't like to see their friend in such a bind, but there is no blame on the prosecutor.

Police officers are the conduit through which prosecutions occur. They investigate the crimes and do all the heavy lifting. Prosecutors navigate the case through the court system while directing the investigation. When a prosecutor is tapped with a police officer investigation, the dynamic shifts. Word spreads quickly through the police fraternity that the ADA or AUSA is one who prosecutes cops. If the cops don’t agree with the prosecution of one of their brethren, we will see officers not appearing for conferences, avoiding ADAs, or trying to get their cases handled by other prosecutors. Needless to say, it becomes difficult to motivate officers to help an ADA who is prosecuting one of their own.

Let's discuss excessive force – did an officer exceed the scope of his duty in dealing with a suspect? Did he hit the handcuffed defendant? Was the defendant reaching for a gun when the officer shot? Did he shoot too many times? I am not on the street. The cops are the ones walking into enemy gang territory and pulling cars over with tinted windows crowded with five people at 4 in the morning. Every encounter with a suspect could prove fatal for an officer. I have no illusions that the life of a police officer is dangerous business.

Prosecutions for excessive force are like being a Monday morning quarterback. We have to judge the officer’s actions based on the facts we now know against what the officer knew at the time. Some are easy. The cop who cold cocks the handcuffed defendant is guilty of a civil rights violation. The gray areas are the difficult ones – the shooting of an unarmed suspect who was reaching into his waistband when the cop told him to put his hands up.

Either way, prosecuting cops creates a barrier between the prosecutor and police in other cases. What used to be a cordial and even friendly relationship can become purely business or non-existent. Officers can become hesitant to divulge too much information to the prosecutor for fear of it being used against them.

What's the effect on future prosecution's with the officer? Let's take a perjury case. An officer walks into the grand jury and says he collected bullets from a crime scene and submitted it to the lab. Days later, another officer tells the ADA the he was the one who did that and that the first officer had left the scene prior to the bullets being collected. When confronted with the information, the first officer admits he lied, but says he was just trying to help out and make it easy by not getting the second officer involved.

Even if that officer does not get charged with perjury, do we have to disclose that intentional lie on every case the officer is on again? Shouldn't the defendant and defense attorney know this officer was previously accused of fabricating testimony? We must prosecute police officers who violate the laws for the same reasons we prosecute citizens - to ensure that others abide by the laws society sets.

If there was no prosecutions, then there would be no clear line that officers should not cross.

Not all police officers react like this. Some understand that it is the nature of a prosecutor’s job to investigate crime and anyone that commits it. It is not an endemic problem in the police force, but an individual problem with individual officers. The majority of police officers are hard working men and women who never stop being a police officer whether they are on-duty or not. They are regular people put into an irregular job that is held to a higher standard than the rest of us. It is rarely gratifying to investigate and prosecute a police officer (I'm sure this one was gratifying). It's a job that must be done and as a prosecutor we swore to uphold all the laws and prosecute the offenders, no matter who they are.

But the reputation will always stick with the prosecutor.

Monday, October 22, 2012

The Cop and ADA Dynamic

On Friday, I posted about the on-going battle between the NYPD, the Bronx DA, and Mayor Bloomberg.  There is a breakdown in communication and common goals on every level of law enforcement and the losers will be the citizens.

The system is supposed to work like this:

1) Suspect commits a crime,
2) Victim calls 911,
3) Police respond,
4) Police investigate,
5) Police make an arrest,
6) District Attorney prosecutes the case

The NYPD has approximately 34,500 officers.  It's a massive organization that requires policies and procedures.  New York City DA offices are also gigantic offices, some swelling to over 1,000 total employees.  It too needs to be guided by written procedures.  Both of these groups should be working towards the same goal, which is the equal enforcement of laws and the protection of citizens.

Most of the time, the relationship runs smoothly.  The cops arrest the suspects and the ADAs prosecute them in court.

But what about the times it doesn't run like it should?  The cop makes an arrest without probable cause?  Or illegally searches a citizen?  What about the ADA who dumps a case because he/she doesn't do his/her job?  What about when the cops commit the crimes?  Or the ADA does?  How are these cases handled and who is ultimately responsible?

Here are just some illustrations of the problems:

-NYPD officer, Emmanuel Tavarez, conspired to rob drug dealers.
-New Jersey Attorney General indicts New Jersey State Troopers for leading an exotic car race.
-NYPD officers indicted for ticket fixing.
-Spokane police officer convicted of excessive force.
-Prosecutors plead guilty to DWI here and here

It's a tough business being in the public eye.  Every one loves when a public official screws up.  It makes local and national headlines.  All of us need to realize we are held to a higher standard whether we like it or not.  I'll admit it; it's an ego boost when you see your name in the paper or watch yourself on the news for a case the media deems important.  But like any public figure, the more you are in the media spotlight, the farther the fall if you lose your footing.  Check back this week for a post on the prosecution of police officers and the Life of an ADA on a high profile case.

Friday, October 19, 2012

Cops vs. Prosecutors

Have you heard about the war?  It's been brewing for years.  The one between the NYPD and my former employer the Bronx DA's office.  Here's some history to explain all the links I'll be posting this morning - Bronx DA's indict 20 NYPD officers for fixing tickets and dropping cases, NYPD arrests a Bronx ADA for DWI, Bronx DA stops prosecuting cases where police stop random people in public housing units to determine if they are trespassing.

It's just a glimpse of the tension that exists in the county right now.

I'm off for the weekend to do a crazy adventure race.  So, enjoy the articles to see what is happening in the Boogie Down Bronx.  Next week, I'll address the difficult issue of prosecuting cops and the joys and perils of prosecutors in the spotlight.

Stop and Frisk and here and here
Editorial on Decline to Prosecute
The Mayor's Position
Conviction Rate
Ticket Fixing

More like this:

Decline to Prosecute
Statistics and Animosity

Wednesday, October 17, 2012

Jury Note

This was a jury note in an actual gun and drugs trial.  Can you guess what they really wanted?

A quick google search of D+A brought up this:

Acronym Definition
D&A Drug and Alcohol
D&A Depreciation and Amortization
D&A Design & Analysis
D&A Delivery and Acceptance
D&A Dry & Abandoned (oil & gas industry)
D&A Deals and Allowances

Obviously, none of them mean DNA, which is what the jury sought.  It's further evidence that trial lawyers cannot take any juror's understanding for granted.   

Monday, October 15, 2012

Youthful Offender - A Second Chance?

Everyone wants it.  In every case, the defendant asks his attorney, "can I get my Y-O?"  It's a common belief in the street that you get one free felony.  You get to commit any felony and still have your record sealed.

It is officially called youthful offender adjudication under Criminal Procedure Law Section 720.  What it means is that a teenager's conviction is replaced with an adjudication, the records are sealed, and they are eligible for lower sentences.  But, it is not automatically granted in any felony case. 

An eligible person for youthful offender must:
  1. Be aged 14 through 18
  2. Have no prior felony convictions
  3. Have no prior felony youthful offender adjudications, and
  4. Have no prior juvenile delinquent adjudications for listed designated felony acts 
Felonies are handled by supreme and county court judges in New York State.  It is in their sole discretion to determine who receives a youthful offender adjudication.  The standard is:

"If in the opinion of the court, the interest of justice would be served by relieving the eligible youth from the onus of a criminal record and by not imposing an indeterminate term of imprisonment of more than four years, the court may, in its discretion, find the eligible youth is a youthful offender."  C.P.L. § 720.20(1)(a).   

What does it mean to receive a Y-O?  First, the records are sealed and the defendant does not have to report any convictions for crimes on any applications for college or work.  Second, the sentencing range runs from a conditional discharge (one year unsupervised probation) to an indeterminate four years in jail.

A person is not eligible for this if the crime is:
  1. An A-I or A-II felony (murder),
  2. An armed violent felony, or
  3. Rape first, Criminal Sexual Act First, or Aggravated Sexual Abuse
As in any law, there are exceptions to these rules.  A judge can still grant a defendant youthful offender status if they are charged with an armed violent felony (violent felony committed with a gun like robbery) or the sex crimes listed if the judge finds mitigation.  Mitigation is defined in C.P.L. Section 720.10(3).  It means circumstances that bear directly on how the crime was committed or that the defendant was not the major actor. 

An example of mitigation is where two men rob a victim.  Only one of the men has a gun.  The non-gunman has a good shot of receiving Y-O.

Mitigation has nothing to do with the age of the defendant, the lack of a prior criminal record, the victim wants to see it happen, the defendant sings in his church choir or any of the other plethora of reasons given by defense attorneys.  It only has to do with how the crime was committed. 

A defendant must first plead guilty to a crime.  Then, at sentencing, the judge must place the reasons she is either granting or denying Y-O on the record for an appellate court to review.   

Do you see the problem with Y-O?  It can take a crime like robbery in the first degree or rape in the first degree, which carries a five year minimum sentence, and reduce it to a sealed record where the defendant can receive a conditional discharge?  It is ripe for abuse in the wrong cases.  Luckily, I have yet to see it misused in such a severe manner. 
Y-O can be a second chance.  Court's must wield this power wisely.  Every eligible youth who comes before it does not deserve this status for every crime.  The reverse is also true.  Court's must not summarily deny the status just because of the crime.  Each case must be analyzed separately.  The power to grant or deny this rests solely in the judge.  Neither the prosecution or defense has the power to negotiate this with each other.                             

Friday, October 12, 2012

Disaster Preparedness

Check out how a school in Washington is preparing for the worst scenario a school will ever face:


Is it too much or should every school be doing something similar?

Wednesday, October 10, 2012

Quarterly Stats - October 2012

Here's the stats for July through September. 

Total cases handled: 53 files - A few lower.  I don't know why.  I was definitely busier this past quarter.

Number of pleas taken: 17

Number of cases closed after arrest but before indictment: 3 - Lowest since I started tracking these

Main reason why:  Transferred to feds to prosecute.
Number of cases where guns were used:  27

Saddest case:  16 year old steals his grandfather's car, smokes marijuana, evades a police checkpoint, and then leads them on a high speed city chase where he crashes into a van and rolls it over, causing paralysis in the 85 year old driver. 
Best reason requested for adjournment:  Defendant, who was going to jail, asked for a month long adjournment because he was the sole caretaker of his mother who was having surgery the next day.  The judge asked mom, who was in the courtroom, about the surgery.  She told the court she had no idea what the defendant was talking about.  Adjournment denied. 

Youngest defendant: 14 (robbery)

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

Worst offender(s) of the quarter: Three robbers.  Gang members committed a series of gun point robberies in their neighborhood and then threatened and intimidated anyone that called the police on them.  This is becoming a common occurrence.  People are robbing people they know so they can intimidate them easily.

Sentence for the kid who shot the pregnant teenager:  3 and a half years.  It was the minimum sentence.  Mom and baby were healthy.  The worst part?  The 16 year old didn't know she was five months pregnant until she went to the hospital due to the shooting injuries.

And to wrap it up, I heard a defense attorney use the phrase "last but not least" five times today during a summation.  At what point does it lose its effectiveness?

Compare it to previous quarters here, here, and here.

Monday, October 8, 2012

Courtroom Perils

The danger of being a defense attorney:

Even inanimate objects aren't safe:

Even the guys with guns must be careful (what is the guy in the audience doing?):

I've never witnessed anyone get punched in court, but I have seen some fantastic freak outs and screaming matches.  An unhappy defendant is usually mostly upset with their attorney first, the judge second, and, thankfully, the ADA on the case last.

Friday, October 5, 2012

How the Lab Works

It happens every minute, in every city across the country.  Police officers recover evidence that needs to be scientifically tested and its accuracy accounted for.  A bag of crack can pass from the officer who recovered it, to the officer who brings it to the lab, to the person who receives it, to the person who weighs it, to the person who tests it, to the DA for trial.

And many more people in between.

So how do labs ensure accuracy?  How can we assure the jury that the bag of crack we show them at trial is the same bag taken from the defendant on the street?  It's all in the paperwork and the system the lab uses to test the evidence.

Here's the steps in my current county:

1) The police officer recovers the evidence.
2) A police officer seals the evidence in an evidence bag, labelling the bag with identifying information about the case so we all know which case it belongs to.  The officer also fills out paperwork that goes to the lab asking for tests to be done.
3) A police officer takes the evidence to the lab.  Ideally, this is the same officer who recovered the evidence, although it usually isn't.
4) The lab receives the evidence.  An evidence receiver is there during business hours and will physically take possession of it.  During off hours, the officers lock the evidence in a storage locker where evidence receives take it from the next day.  Paperwork is filled out no matter how it comes into the lab.
5) The evidence receivers send the evidence to the storage unit designated for the type of evidence - DNA, guns, drugs, arson, etc.
6) The scientist testing it removes the evidence and begins working on it.  Paperwork is filled out each time the item is moved to note what is happening.  Every time an item is unsealed, the scientist marks it on the bag and will reseal it.
7) Another analyst reviews all the paperwork and tests before verifying the results.
8) Once testing is complete, the evidence usually remains at the lab in storage until trial.
9) For trial, I have the officer who recovered the evidence remove it from the lab and bring it to me in its sealed condition.  Then, I keep it with me for trial.

The news of rogue chemists over the last few years is disturbing.  It happens in a few ways.  A chemist falsifies their credentials on their resume, gets lazy and doesn't follow the required procedures, or just makes the results up.  Every time this happens, it affects the entire system.  First, innocent people might be in jail or convicted due to perjured testimony or falsified results.  Second, the procedures of the lab are questioned and in many cases the lab is shut down.  Third, it affects every case in the future.  Defense attorneys will argue, and jurors will wonder, how anyone can possibly trust any test coming from that lab.

You might wonder how it is possible to falsify results when they get reviewed?  Well, the review only extends to the paperwork.  A second analyst is not performing a second test on the evidence.  That would create double the work for things like DNA which already take two months.  The reviewing analyst checks the paperwork, verifying the tests were completed correctly and the results are accurate.

It's similar to wrongful convictions.  Every one sends shockwaves through the system, disrupting the foundation upon which a solid case should be built.  Once fraud like this is discovered, every case in the lab must be reviewed going back years.  It is an incredible waste of time, resources, and someone's liberty.  For what?  A paycheck?  Laziness?

Prosecutors must prosecute these offenders to the fullest extent possible - perjury, filing false instruments, fraud.  It cannot be tolerated. 

Wednesday, October 3, 2012

Why We Love Social Media

Facebook, Twitter, Myspace (anyone use that anymore?), google+.  I'm on record by saying I love them all.  People need to brag about their crimes and what better way than in writing on Facebook.  They love to threaten witnesses.  They connect with a group of friends, which makes it easier to show their affiliation with a gang.  They post pictures of themselves smoking weed, brandishing guns, or of their new tattoos.  Plaintiffs in civil cases will post pictures dancing in bars, going for hikes, or lifting heavy objects, all activities they claim they are unable to do.

And they also plan crimes.  The NYPD is increasing their social media presence and investigation unit for gang crime to help stop street violence before it starts.   

Everyone knows that we leave a permanent mark with whatever we post on the internet. Yet no one seems to care.  I'm not complaining.  I'm thankful.  Without stupid criminals, my job wouldn't exist. 
"Facebook Cops" coming soon to a television near you. 

To illustrate the point:

More like this:
The Mob Mentality
Facebook Me From Jail
Confessions of a Facebook Stalker

Monday, October 1, 2012

Rogue Chemists

A Massachusetts chemist faces felony charges for falsifying chemical tests in narcotics cases.  Annie Dookhan made up her degree along with her results when pretending to test thousands of drugs and even testifying about the results under oath.

The Nassau County lab in New York State was just shut down for similar reasons last year.  These issues are dangerous to everyone involved, from the prosecutors trying the case to the wrongfully convicted defendants.  The next few posts will discuss how a forensic lab works to control accuracy and the fallout from lying chemists.