Right to Remain Silent - Not Really

A booster (read - big donor), who is now in prison for fraud and money laundering, is claiming to have given a cool $2 million in benefits like prostitutes, dinners, and cash to various players at the University of Miami starting in 2002.    As it should, the NCAA is reviewing this claim.

And this is how, by posting this letter to the players suspected of taking the perks:

"The purpose of this letter is to apprise you that the NCAA enforcement staff is requesting to schedule an interview with your clients regarding their knowledge of or involvement in possible NCAA violations concerning the University of Miami, Florida, football program.

"Interviewing your clients is important in order for the enforcement staff to conduct a thorough investigation, and both the staff and the institution request you and your clients' cooperation in this matter. However, at this time, all attempts to schedule and execute interviews with [blank] have been unsuccessful. As a result, this letter serves as a formal and final request by the NCAA enforcement staff for interviews with [blank] to be completed by Nov. 23, 2012.

"If we do not hear back from you or your clients by that time, the staff will consider the non-response as your client's admission of involvement in NCAA violations. You may contact me at [blank] in order to arrange this interview. Your assistance in this matter is appreciated."

If only criminal cases were that easy.  Mr. Defendant, the police officer said you killed someone.  If you say absolutely nothing, we will assume you admit the allegations and you will spend the rest of your life in jail.  If you didn't do it, you would say so, right?

I know the fifth amendment privilege against self-incrimination is limited and not available in situations like this, but it still does not seem an appropriate way to investigate and determine sanctions.  This is why judges go through such great pains in jury selection to dismiss jurors who think that a defendant must testify or would hold it against a defendant who chooses not to testify.  The burden is on the investigators, the prosecution and police.

As for the college kids?  Some would argue paying them for their athletic participation would avoid this.  But we have to remember they are only 18, 19, and 20 year olds who are getting money and huge benefits thrown at them.  They don't know how to use the word no yet and paying them wouldn't stop it at all.  But that's a topic for a different post.  Maybe a different blog.

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Juvenile Illiteracy

I posted the link to Caleb Sosa on Monday, but I just didn't have time to discuss it.  And, wow, is there a lot to discuss.

First, like most news articles, it is light on the facts that would allow the reader to make any informed decision other than the one the article wants you to draw.  They do not tell us what the evidence against Sosa was - eyewitnesses, DNA, or just the confession at issue.  We don't know whether the confession was even admissible at trial against him.

Second, the article discusses how Sosa could not even write his initials without instruction, yet he was about to sign off on a plea but then rejected it.  The key being HE WAS ABOUT TO SIGN HIS NAME FOR A PLEA.  Did he learn to read and write while locked up?  He has gone from not knowing how to write the first letters of his name to being able to read and sign legal documents yet it is not discussed.

Third, it would have been an interesting civil trial, had the city lawyer filed the appropriate paperwork.  A claim that the police violated Sosa's civil rights by forcing him to sign a confession he couldn't read would be difficult to prove.  Even at fourteen, a person should be able to read.  Sosa would have to bring in his family and teachers and describe how they had failed him for his entire life by letting him live without learning the most basic skills. 

The trial would essentially put the city of Detroit's education system and parental structure on trial.  I am certain that Sosa made it through elementary school.  Sosa would basically have to put on witnesses to demonstrate his illiteracy and explain how they all let it happen.  It is no secret that reading and writing levels in large cities are horribly low.  Total illiteracy though?  How can we as a society allow this to happen?

Fourth, as JeffO has pointed out, the money is a large amount for a headline, but spread over 40 years it is $27,500 per year before taxes.  That's hardly a sum enough to justify spending time in prison as an innocent man. 

My first jury trial involved a 25-year-old man who claimed illiteracy.  The victim claimed that the defendant shot him twice in the stairwell of an apartment building because the victim got in an argument with the defendant's girlfriend.  The gun was recovered a month later inside the girlfriend's apartment.  When the defendant was arrested, he spoke to the police.  They wanted him to write his own statement, but he said he could not read and write.  The police wrote his statement for him, read it to him, and then he signed it.  He was able to sign his name.  An hour later, the defendant wanted to make another statement.  He had some changes to the first one.  They went through the same process and the defendant signed it. 

At trial, he claimed the detective never read him the statements and he did not know what he was signing.  His mother took the stand and described his illiteracy.  I only asked the mother whether she read to him and if he understood what she read.  She agreed he did. 

The problem with the statements was that they both provided a defense to the shooting.  Why would the detective, when he could write anything he wanted without the defendant knowing, write two separate statements that contained defenses?  If he was fabricating the statements, why wouldn't the detective write the most damaging confession possible?

The evidence in my case was overwhelming and the defendant's version of events did not match the physical evidence.  The jury found him guilty.

Illiteracy is an enormous problem in society and also a hurdle police officers must overcome on a daily basis.  The Caleb Sosa civil trial would have been a hard look at the education system in America and I would have loved to follow it.  Unfortunately, we will not be able to due to a procedural error. 

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How Much Is Freedom Worth?

It was a deadly combination this weekend.  A cold, out of town guests, the holidays, and spotty internet combined for the death of any in-depth post this morning. 

But, this story popped up this weekend.  Caleb Sosa, from Detroit, spent two years in juvenile lock-up when he was 14 for murder.  He was acquitted two years later.  The interesting twist is that Sosa then sued the City of Detroit for violating his civil rights.  Through the City's inaction, by not filing timely paperwork, a judge awarded Sosa $1.1 million.

There will be more on this later this week when the cold goes away and internet returns.

But for now, I wonder if there are people who read this article and think they would serve two years in jail for that much money when they got out.  If not, how much would it take?   

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How to Honor a Life

I've been to three wakes in the last three weeks.  The deceased were not my immediate family or close friends.  They were either distant relatives or some of my best friends' loved ones.  All three carried a similar theme.

Pictures adorned the funeral parlors for each person, illustrating the life a person is capable of living.  Decades of history greeted each mourner.  Wedding pictures, candid snapshots, military pictures, and baby pictures showed us who the person was in life - happy, gleeful, and inevitably giving.

In death, they remind us of how fragile life is and why we cannot take even one moment for granted.

The reality of our mortality is that we must live a giving and purpose-driven life.  We all hope to live a healthy and eternal life.  Unfortunately, until modern science catches up with those wishes, we are stuck with striving for a healthy and prolonged one.  But what do we do with the years between birth and death?  How do we make them truly count?  Our loved ones spent their lives laying bricks that would be the building blocks of future generations.  My grandparents immigrated to America for a chance at success.  They faced hardships few can even imagine today - traveling across the world with infants in tow, learning a new language, prejudices, few social programs to rely on.  For what?  So that my children and I can spend more time in front of the television?  So that we could all work at jobs we don't like?

No.  Life is fleeting, and leaving you every moment.  Even as I sit here writing this, it ticks away in irretrievable seconds.  The seconds are not wasted if they are aimed at a purpose, towards success.  It is success that needs to be defined for every individual.  Whether it be children, financial wealth, fame, critical success, or just being happy.  What do you define as success?

I'm a goal driven person.  I spend the end of each year documenting my goals for the next year and how to achieve them.  This goal driven life is a new phenomenon for me.  I used to flounder in the tide of uncertainty, waiting for someone to steer my ship to whatever course they wanted for me.  It was only in the last few years I grabbed the wheel and began to chart my own course.  My goals for 2012 are not all achieved.  In truth, most of them are not.  Still, I'll put my list together for 2013, including the unaccomplished tasks of 2012.  I try not to get bogged down in failures because I'm aware that they line the steps to success.  I've discovered there are two things required for success - deciding what is important to you and moving past the fear of failure.

I have failed and will continue to do so.  You should too.  It's what our deceased relatives and friends  wanted for us.  They spent a lifetime using their gifts and talents to show the road to success for all of us.  Try and dare greatly.  Fail.  But always push.  Always continue and eventually you will succeed.

It's the way to honor those that went before us.  Happy Thanksgiving to all of you.  Thank you for coming by and reading the blog.  I love being able to provide you a glimpse into the law and the life of an ADA, as well as the posts like this one that deal with neither.  Your continually increasing support pushes me to make this site better every day.

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Thanksgiving: A Time for Families and Fake Mustaches

Every year sons and daughters criss-cross the globe, returning to their roots to celebrate Thanksgiving with their loved ones.  They return to the place that helped create who they are, to give thanks to the people that helped mold them.

And sometimes, they get involved in the family business.

Ronald Scott Catt, his son Hayden, and his daughter Abby were arrested this weekend in a string of bank robberies that stretched from Oregon to Texas.  The father and children team used masks and distinctive vests to commit the robbery and were tracked down via video surveillance and credit cards purchasing the items from Home Depot.

Rumors are circulating that Ronald Scott had lost two jobs in the past two years.  Now, the Scott family gets to spend their Thanksgiving together in close quarters, and possibly many more.

Apparently, the fake mustache didn't work for Hayden.  It did for these two robbers here and here.  Personally, I think it's an insult to real mustaches everywhere, especially during Movember.

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Prosecuting the Absconders

In between murders, rapes, burglars, and robbers, we prosecutors sometimes get time to focus on other public menaces.  These are the ones who bilk the system for their own benefit.  The person collecting unemployment checks while getting paid under the table.  Or the wealthy man collecting food stamps. 

Or the people who lie to get out of jury duty. 

Jose Bocanegra, Jr. missed his scheduled jury duty four times, for four different reasons.  The first time he claimed he was a convicted felon (False).  The second?  He claimed he was the sole caretaker for an invalid (False).  Third?  He just didn't show up.  Fourth?  He left because the line was too long.  The Texas judge had seen enough and a warrant issued for Bocanegra.  A judge found him guilty of contempt and sentenced him to five days in jail.

His reasoning for avoiding?  It was too far away.

It's not only our friends in Texas (Mark Pryor) who are going after jury duty dodgers.  Colorado joined the cause recently too. 

Susan Cole was a little more deliberate in her attempts.  She arrived at jury duty with curlers and mismatched shoes, claiming post traumatic stress from a violent domestic incident that occurred in the military.

Like so many people before her, Ms. Cole's ploy was foiled by bragging.  The judge who dismissed her from service heard her months later on a radio show explaining how she fooled everyone to avoid jury duty.  Investigators debunked her claims and she pleaded guilty to perjury and attempt to influence a public servant. 

Instead of the community service that is jury duty, Ms. Cole has a felony to go along with forced community service. 

The funny part?  Most lawyers would have struck these jurors anyway so they would not have served. 

Check out my position on jury service here. 

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It's a Conspiracy

What makes four guys sitting around a table drinking beers and talking about a robbery a crime?  It's in the planning.

We all do it, probably without even knowing it most days.  We'll stand in a bank line and look at the cameras and wonder if they would catch us if we walked out with a hundred grand.  Or maybe you're working the cash register at a store and occasionally think about slipping a bill into your pocket?  When does thinking about a crime turn into committing a crime.

There are three requirements to prove a conspiracy:

1) Two or more people,
2) An mutual agreement to commit a crime, and
3) An overt act in furtherance of the conspiracy.

The first element is simple.  It takes at least two to make it a conspiracy.  Otherwise, if the person comes close enough to committing the crime, it is an attempted crime.

The agreement is trickier.  What exactly is an agreement?  Does it have to be in writing?  Oral?  What if one of the suspects cannot be prosecuted for the crime because they are mentally challenged?  Or an undercover officer?

The agreement can be in any form - oral, written, or otherwise.  To prosecute these cases, we always seek some corroboration of the agreement like a letter written between the suspects or, where one is cooperating, a recorded conversation.  A person can still be guilty of a conspiracy if they commit the crime with someone who cannot be prosecuted for it.  An example to demonstrate - The suspect wants to have her husband killed for the life insurance.  She doesn't want to do it because then she won't get paid.  She seeks someone else.  The police get wind of it and send an undercover officer to speak with the suspect.  The undercover officer wears a wire and records the conversation.  Obviously, the undercover will not be prosecuted for the crime, and, therefore, the conspiracy charge will only prosecute one person.  The law is clear that the suspect can still be charged with conspiracy even when the other parties cannot.

What constitutes an overt act?  This is what moves it from bragging stages to crime.  One of the parties who agreed to the crime must take at least one step towards its completion.  Examples - buying guns, making a down payment to a contract killer, renting a getaway car, casing the location of a robbery.  Any act that moves the conspiracy closer to completion will do.  As a prosecutor, it is difficult to make the call when there are enough overt acts to arrest, but before the completion of a crime.  What constitutes probable cause does not always persuade a jury that the group was serious about committing the crime.  The overt act element is the line between Minority Report and protecting society.

Once all three elements exist, we can make an arrest.  The only viable defense to the conspiracy must happen before the arrest.  One of the participants must affirmatively withdraw from the conspiracy before the crime.  This means they tell the other participants they are out and then they tell law enforcement.  That is usually the way law enforcement finds out about the crimes.  Participants become informants when they realize that the planning between friends is quickly becoming a criminal reality.

The federal government charges conspiracy much more than state prosecutors do.  It can be charged in any case where co-defendants committed a crime, in addition to the completed crime charges.  State prosecutors usually only charge conspiracy where there is an undercover investigation and an arrest before a crime occurs.  They are some of the most satisfying cases because you are stopping the defendant before anyone is hurt.  We don't get to do that often.   

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Veterans and Specialties

I was at a store on Saturday with my wife and niece.  We were walking towards the cash register when we passed a gray-haired man in a black cowboy hat with a Vietnam Veterans patch sewn on it.  A mother and child in front of us stopped abruptly and ran behind us.  The boy, about eight I'd guess, ran up to the man and said, "excuse me."  The man stopped without a word.  The boy said, "thank you for your service.  My grandpa and great grandpa served.  I appreciate it."

They shook hands and the smile from the man's face could be seen from outside.

The best way I know to say thank you is through the written word.  These words, however, will fall short of the deep appreciation I actually feel.  For hundreds of years, men and women have agreed to put their country before themselves and battle for those of us that either don't want to or cannot.  The soldiers do not care who we are or what we believe in, so much as what America stands for.  The selfless tasks performed by soldiers every day is a stark reminder that what is truly important in life is often unheralded.  Thank you to all those who have ever served on my behalf, overseas or at home.  You are the ones who have made my choices in life possible.  It hardly seems right that I receive a day off in honor of other people's sacrifices.  Shouldn't I have to volunteer or something like that today?

Now for the legal aspect of the post.  Soldiers face difficult tasks when returning to the life of a citizen.  Some have been in war zones and have a difficult time coping.  As prosecutors, we see the effects daily.  We handle many cases where veterans are arrested for drugs or violence.  Then, we face the difficult task of deciding how to handle these cases.  Do they receive special treatment because of the soldier's past?  Should they be treated like any other person in the system?

New specialty courts appear every year.  In my county, there is a drug court, DWI court, youth court, mental health court and now a veterans court.  The idea behind these courts is that the cases sent there require specialized attention and services necessitating different treatment.  If you don't fall into one of these categories, then you don't get the special services the courts offer.  The motivation behind specialty courts is admirable, but is it fair?  Should different groups of citizens be treated and offered separate services?  Should the courts even be involved in this?

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An Unusual Thank You

One problem with the court system is its inefficiency.  Myself and other lawyers (not to mention defendants) sit in court for hours waiting for their case to be called and wasting time that could be spent on other projects.  It's been a problem for generations of lawyers and has yet to be solved.

But sometimes the waiting allows you to find that rare gem that really makes this job worth it.  It wasn't my case; I was merely a spectator.  But it went something like this.

The defendant stood next to her assigned attorney behind a long, dark wooden table to my left.  The prosecutor stood at the podium that separated two tables.  A probation officer and representative from the DWI court program stood behind the table to my right.  The defendant was being sentenced for a felony DWI - at least two DWIs in ten years.

The DWI court is a referral service for people with alcohol problems.  They receive individual and group counseling, random drug tests, and weekly court dates to monitor progress.  The representative announced how well the defendant was doing in the program and the probation officer concurred.  

The defendant's attorney said a few nice words on her behalf and then it was the defendant's turn to speak.  There are three types of statements a defendant usually says at sentencing: 1) nothing, 2) "I just want to apologize to my victims", or 3) how they no longer agree with the plea.  This female defendant turned to the people on her and my right.

"I just want to say thank you, your Honor.  Thank you for allowing me the opportunity to work with this team.  It is a wonderful team of professionals, and that's what they are professionals.  The prosecutor, the DWI program and probation officer.  I appreciate all of their efforts and thank them immensely for their help in getting me help.  I love my group and look forward to seeing all of them every week.  Thank you."

I rarely hear anyone thanking their attorneys for the work, let alone the staff who are helping to treat an illness.  And this might be the first time anyone has thanked a prosecutor.  We can now add a fourth type of statement.

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Scantron, Touch Screens, and Pot

Anyone remember these forms?  It was called a scantron sheet in elementary school and high school.  I remember practicing to completely fill in the bubbles so that the computer could read it properly.

And apparently not much as changed.  As I signed my name to vote, I was handed a manila folder with a sheet of paper inside.  I took it to a long, wooden table, containing three-sided cardboard dividers  that would make Jeopardy! cringe.

It seems that we have inched backward from the polling machines with the curtains and switches.  Isn't John King on CNN touching a television screen and reading real time votes being counted?  Yet, I'm still using a scantron form to vote for president?  There were stories that Florida precincts ran out of paper ballots and had to photocopy more.  What are we doing?  Why can't we figure this out and get into at least the late twentieth century?

In other news last night, two states have voted to legalize recreational marijuana use.  Colorado and Washington become the first states in the union to legalize it.  We will see what the future holds and whether this is a trend or isolated state issues.

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Election Day to a Public Employee

Most New York State and County employees are given a gift the first Tuesday following the first Monday of every November (can you tell that law was written by lawyers?).  They are given a day to reflect on the year that has past and the full eight hours that they otherwise would be working can be spent doing anything they desire.

Yes, Election Day is my favorite work day of the year because, well, it's not a work day at all.  It's a random Tuesday off in November.  I understand why the day off began.  It stems from the days when all the government jobs were patronage jobs and all the government employees were given the day off to go work for the person who gave them the job - ferry voters back and forth, stand outside polling places, etc.

I'm not saying we should have the day off, only that I appreciate it.  Not even teachers get this day off.  

But tomorrow does not mean a holiday for me this year.  I'm involved in two large investigations which both have big days tomorrow.  So I will be at the office for a period of time fielding phone calls from law enforcement and helping them on the legal end.  I assure you, I will not be there the full day though.

I get many comments on the blog and emails concerned with prosecutors and the workings of government and the court system.  I post them all and respond to all the emails so long as they are in the realm of an honest discourse.  America is an amazing place because we all have the right to take an opinion and express it to anyone.  I hope all my readers take advantage of their right to vote and their ability to say the direction they want their country, state, and county headed tomorrow.  Don't like the judge?  In New York, most are elected so vote for the other one.  Same for the President on down to the Town Supervisor.  This is our chance to do something about whatever problems exist.

It is a partisan world, where everyone has instant access to a blog, twitter, or Facebook, and can voice their opinions on any topic immediately.  Are people becoming more entrenched in their opinions and more unwilling to compromise or do we just see more of it because of the proliferation of social media? I check my Facebook page and it reads like a roll of DNC and RNC talking points.  I'm all for the expression of political views, but hopefully we can move everyone past toeing the party line and towards making decisions based on the good of the citizens who voted them in office.  

So vote tomorrow.  I will after my half day of work.

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To Be a Lawyer?

This week, CNN posted an article discussing the top 100 jobs in the coming 10 years.  The criteria seem to be salary, market growth, personal satisfaction, stress level, benefit to society, and flexibility.

The winner?  Biomedical Engineering.  A lawyer was not on the list, which was made up mostly of science, computer, research, and health care jobs.  This is another factor to weigh for those considering law school.  There is a saturated lawyer market, stagnant salaries, and limited growth right now.

Also interesting, there were no public servant jobs, like teaching, on the list.  Since I am both a lawyer and public servant things do not bode well for me apparently.

Check out the article here. 

More about this topic:

Be a Student of Loans
Should I Go to Law School?
To Go or Not to Go

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