To End the Year

I hope you all have a happy and healthy New Year and achieve whatever you set out to do.  Like every year, I've set some goals for myself, including this site.  Readership has increased over 300% from the year before and I'm hoping to keep it going!  Thank you for visiting.  (Note:  Whenever citing statistics, I'm always reminded of Homer Simpson's words to reporter Kent Brockman, "Aw, you can come up with statistics to prove anything, Kent.  Forty percent of all people know that.")

I'll be back at regular posting on Wednesday.  Just wanted to highlight this story.  Law enforcement is looking at creative ways to end DWI.  This Houston area police department has taken to arresting bartenders who overserve drunk customers.  I'll post more on this later this week.  Be safe and smart and I look forward to seeing all of you next year.

More like this:

The Moments Before 

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Rest Easy into the New Year

It's almost over.  You've been wondering for months about it, haven't you?  Wondering when someone would get caught?  When they would be held accountable for their heinous deeds?

I wrote about this back in September when some Canadian thieves decided to steal millions of dollars worth of maple syrup.  As any good blogger who occasionally follows stories through to their completion, I am happy to report that three people have been arrested for the crimes.

Most importantly, two-thirds of the stolen sticky supply was recovered.  What that means is the maple syrup prices will hopefully avoid any ill effects of the fiscal cliff.  We are happy to report the Canadian authorities have just about laid this case to rest for the new year.  You kind of feel bad for the thieves.  They just about got away with it before the world ended - just a few more hours.

I'm taking some time off next week and am not sure I'll be posting much.  I am thankful that people keep reading this site, which justifies continuing to run it.  Happy holidays!  Merry Christmas! Happy (belated) Hanukkah!  Happy New Year!

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Ringside Seat

The commuter train is the cross-section of humanity.  Rich and poor, old and young, suburban and urban, Asian, Middle Eastern, black, white - it might just be the evolution of the melting pot that is the United States.  We all sit faceless and nameless, avoiding eye contact and interaction.  Some read, some stare out the window, but rarely does anyone violate the unwritten code and speak to an unknown soul.  The only disruption in this perfect complacency is the inevitable groups of teenagers that disturb our nursing home style peace.

When something serves to disturb our forced peace, our natural inclination towards inaction as commuters, it is jarring.  We are so used to others abiding by the rules that the rebel shocks us all.

A young black man sat with his head down in his hands.  What drew my attention to him was the loud CRACK.  I looked after the first one and saw his hands fly above his head, like an excited student ready to answer a question, and then slam them into the vacant seat next to him.  CRACK.  Curse words followed and the smattering of people now stared at the disturber of our peace. 

He stood and paced the car, curse words streaming like the most prolific sailor.  In my attempt to decipher his complaints, it apparently related to his struggles with some young woman.  Don't all problems come back to a lover scorned?

He stood in the doorway, kicking the metal portion.  I finally put my book in my bag, testing my brain and adrenaline to determine whether I would act if needed.  The man was unstable, but to this point was only trying to damage property.

That was when he wound up and smashed his gloved fist into the plexiglass window, smashing it into a spiderweb pattern.  This was followed by another string of curses as he sat down and now stared out the window, picking pieces from his glove. 

I flipped my phone on, forgetting there was no service inside the earth.  In this age of technology, I had no idea how to alert the police.  Was this an emergency that warranted hitting the button to stop the train?  It hardly seemed it.  But if he got off at the next stop, he might just walk away and never be seen again. 

He didn't leave at the next stop.  He just checked over his shoulders a few times, looking for police.  Many of our car switched to a different car.  I remained, hoping he did not assault someone.  At the next stop, someone discovered a different method and got off the car and called the police from a payphone.  The conductor held the car and our suspect fled, as they say. 

People wonder why I continue to take the train.  What and miss shows like this?  Or the battle of the elderly?   

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"Coke Bust"

It's the world's oldest game - the police find a way to stop crimes and people find a new way to commit crime.

Take the woman that tried to get in Spain from a Columbia flight.  Spanish officials questioned her and her story just did not make sense.  The blood leaking from her breasts also raised some red flags.  When they took her to the hospital, they removed fresh breast implants and the bags of cocaine inside of them.

I thought they were filled with silicone.

 

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Sign of the Impending Apocalypse?

Thought I had to share this sign, which hung in the front window of a defense attorney's office. I found it here.

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Twists of Fate

ANDREW, THEODORAKIS/NEW YORK DAILY NEWS

Over 10 years ago, a police force rejected my application.  During law school, I turned down a different agency's offer to join their squad.  After seeing what the officers deal with on a daily basis - unending calls, no sleep, an abnormal schedule, the threat of violence in every encounter - I'm not sure how well I would have done.  I'm certain I was not mature enough to have that kind of responsibility in my early 20's.

Although, I would be halfway towards retiring...

But still, 12 NYPD officers survived gunshots (there were 9 total in the three years before that) in the course of their duty this year.  Here's hoping to a speedy recovery and that we all learn to keep our cool.  No one ever wins in a gunfight.

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A Lesson in Apathy

In our eternal battle against perceived snitching, I received another lesson in reality.

Here's the relevant portion of a conversation:

PD:  You're going to have to testify.
Witness:  I ain't snitchin.  I ain't the one that got shot.  I been shot four times.
PD:  Did you ever tell the police who shot you?
Witness: No.  I ain't tryin to put no one in jail.
PD:  You think that's right to just let everyone out on the street solving their own problems with guns?
Witness:  Don't mix me up in this.
PD:  So no one should ever call the police?
Witness:  No.
PD:  What about these families with young kids getting killed or hurt when people shoot or their houses getting broken into all the time.  Everyone knows who is doing it.  Should they call the police?  What should they do?
Witness:  Move.

More like this:

The Law of Snitching

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The Claim Against Arson Forensics

Today we turn the site over to our law student contributor, Colin Maguire, Publicity Editor, Thomas M. Cooley Law Review.  Contact him at maguirec@cooley.edu:

The legal system is far from perfect. Sometimes, the system can even create gross injustices. That was the case with David Gavitt – a man who served over two decades in prison after he was wrongly convicted of killing his wife and young children. At the time of his conviction, the scientific consensus was that someone set a fire that engulfed David's house, injured him, and killed his family. With no other suspects, a jury convicted David of setting the fatal fire. Years later, it was revealed that the "science" used to convict David was junk science...and David was not the only person affect as a result of bad arson science.

The Thomas M. Cooley Law Review's Publicity Editor, Colin W. Maguire, visited Imran Syed, Staff Attorney at the University of Michigan Law School’s Innocence Clinic. Mr. Syed started working on David’s case as a Law Student and was there to accompany David out of prison after he was exonerated.

In this in-depth interview, Maguire and Syed explore the details of this injustice. The interview also looks at remedies that Attorneys and Lawmakers should consider when dealing with a clear case of bad science leading to bad convictions. You can see the original posting of this piece from the Thomas M. Cooley Law Review's Online Edition here:

http://www.cooley.edu/lawreview/_docs/Transcript_for_Imran_Syed_Edited.pdf

Anyone who may have occasion to prosecute or defend a person charged with arson, homicide through shaken-baby syndrome, or any other criminal case heavily involving science should absolutely read this.

Check out Colin Maguire's previous post on Trayvon Martin and the stand your ground law - Stand Your Ground Law:  Charging or Blocking?

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The Duty to Act when Someone's in Danger

In the wake of the tragic story from the New York City subway this week, I thought it was time to revisit a post on the situations when a person can be arrested and prosecuted for inaction.

It was written during the uproar of the Penn State scandal.  Check it out here - Duty to Act.  The lack of criminal responsibility will never absolve someone of moral responsibility for 1) not helping, 2) taking this picture, and 3) trying to profit from it.

Naeem Davis was arrested for pushing him on the track.  The man who took the New York Post picture?  Should anything happen to him?  Could anything happen to him?

Incidentally, when I was living in NYC and taking the subways, this was my greatest fear.

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Should Phone Carriers Be Required to Save Texts?

Courtesy of DamnYouAutoCorrect

CNET is reporting that law enforcement officials throughout the country are asking Congress to mandate how long cellular phone providers store text messages.

Understandably, people from both sides of the aisle are crying about the invasion of privacy and how the country is continually transforming into a police state.  Dear readers, I am hereto calm your fears and let you know that all will be well in the world no matter what happens.

Here's the rules of the game as they exist right now.  Phone companies keep your call records for as little as 6 months and as much as 7 years depending on the provider.  These records are who you call, who calls you, how long the call lasts, and the pedigree information you gave to sign up for the phone.

To obtain copies of these records the police must seek a subpoena.  The police bring the case to the district attorney's office, where it is screened by an ADA.  The ADA decides if there is enough to open a file and begin a formal investigation where subpoenas are required.  The subpoena is not reviewed by a judge for probable cause prior to sending it.

Text messages, voicemails, emails, and other phone content is not included in this subpoena.  In New York, a person is considered to have greater privacy in this information so the court requires the police to seek a search warrant.  This is a sworn document or testimony requiring the police to lay out their evidence to the judge and show reasonable cause to believe they will find some evidence of a crime in those materials.  If there is, the judge will grant the search warrant.  If not, the judge does not grant the warrant.

According to the CNET article, 6 billion text messages are sent a day.  That is an incredible amount of data that requires tons of storage, which is why most companies do not save any text data past a few days.  The police and prosecutors are at a disadvantage due to this.

If we find out about text messages at the time the crime occurs, say a DWI accident where the driver was texting, we can send a letter to the cell phone provider demanding they preserve the text messages.  This does not give us the right to look at the messages, but puts the company on notice to save the messages from deletion so that we can make an application for a search warrant.

What about the case that takes months to develop?  A murder conspiracy that gets solved through DNA testing or any other case where suspects don't arise for months or years after the crime?  Well, in current times, those text messages are gone forever unless some person saved them on their phone.  Even if they have probable cause to believe there is evidence of the crime in the text messages, the police cannot retrieve possibly devastating evidence.

Every criminal statute and privacy invasion law comes down to balancing.  Does the need for the statute or law outweigh the invasion of privacy?  Should phone companies be required to keep text messages in case they are needed to investigate a crime?  Or is this a step in the direction of big brother that is ripe for abuse?  Every law that is passed that expands police powers, it is open for abuse.  But Congress figures the overall benefits of finding and prosecuting those responsible for heinous crimes outweighs the possibility of abuse.  Is this the same situation?  Or as a society do we consider our texts more sacred and private than the records of who we call?

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To Arrest the Victim?

The situation usually follows this pattern:

The victim is shot by the defendant, who know each other from the streets.  The victim is taken to the hospital for treatment related to the injuries.  The hospital automatically notifies the police whenever a gun shot wound victim arrives.  The victim is angry and identifies their attacker to the police.  The police arrest the suspect.

Then, it's time for court.  The time for that pesky Sixth Amendment with all it entails about confronting one's accusers.  The victim thinks they did enough by giving a statement to the police.  Why can't the DA's office just do it without them?  Maybe the victim tells you that they don't want to proceed with the case?  Maybe they say they'll just handle it on the street?

It's a common scenario that an ADA sees in increasing frequency as they advance to the most serious cases in their career.  The more dangerous the defendant, the less likely witnesses will willingly come forward to testify against him.  The New York Criminal Procedure Law addresses these situations through the use of a subpoena, criminal contempt statutes, and material witness orders.  We never want to arrest our witnesses.  It does not help our relationship with them, but it its a sad reality of the world we live in every day.  The last thing we want to do is victimize a person twice.

Why Not Just Drop the Case?

Before we get into the how, we must start with why.  Why do prosecutors and police force cases to move through the system when the victim or witnesses are uncooperative?

We don't do it in every case.  There are certain criteria the case should meet before we go through the time, trouble, and expense of arresting a witness.  First, it depends on the type of case.  It will only happen in felony cases.  Even then, the case must be serious before we decide to exercise our ability to arrest uncooperative people.  For example, it's not usually done in a stolen car case.  Think armed robberies, rapes, assaults, and murders.  Second, it depends on the proof of the case.  In a case with slim proof and uncooperative witnesses, we are less likely to move for a material witness order and warrant.

But why would we even do it?  Prosecutors must enforce the laws.  We represent the state we work in, not the victims.  Therefore, we don't answer to the victim's wishes, whether they want the death penalty for the defendant or to allow him to go free.  When dangerous people commit crimes and are likely to do it again, we must act to prevent it.  Plus, when people commit crimes and are able to intimidate witnesses into not appearing to testify against them, there is a degree of boldness and escalation that exists.  The defendants that hold so much sway that they can threaten and intimidate their way to force victims not to appear are usually the ones who make life terrible in neighborhoods.  

The Subpoena

It all starts with the subpoena.  C.P.L. Section 610 allows prosecutors to issue subpoenas directing witnesses to attend grand jury or court proceedings where testimony is required.  Anyone over 18 can serve the subpoena, but it is usually done by police officers or detectives.

Criminal Contempt

If the witness willingly fails to appear after the subpoena is delivered?  They are guilty of Criminal Contempt in the Second Degree, a class A misdemeanor (Penal Law 215.50(3)).  It is punishable by up to a year in jail.  If the witness shows, but refuses to testify?  It's still criminal contempt.

Material Witness Order

Now there are two options.  The first is to direct the police to arrest the witness and charge them with criminal contempt.  The second is to apply to the court for a material witness order and warrant.  A material witness is someone who the People or defense desire to call as a witness at a pending criminal action and there is reasonable cause to believe that the witness has material information about the case and will not appear when subpoenaed.  C.P.L. Section 620 provides the procedure required to get to this point.

It's easy to show that the witness will not appear when subpoenaed if we already tried and they didn't show.  But personal service of a subpoena is not required to get an order from the court.  We just have to show that the person will not show if subpoenaed.  Have all the phone numbers been disconnected?  All of the addresses are dead ends?  

Once the order is signed, a warrant issues for the person's arrest.  Once arrested, the police must bring the person to the court who will declare the person a material witness and either fix bail or release the person.  Bail usually depends on whether a person cooperates or not.  If there's bail, the person is entitled to a hefty $3 a day while in jail.  I find that that most people usually run far away from me, the courthouse, and the DA's office once they are going to be released.  They usually forgo the $3.

Most of the time, people appear when subpoenaed.  They are never happy to testify, but usually do so.  When I do apply for a material witness order, I ask the officers or detectives to treat the person like a witness, not a suspect.  Try not to handcuff them unless necessary and bring them right to my office, not central booking.  That way I can walk the witness right down to court after getting them a lawyer and speak to them through their attorney.  The last thing any attorney wants is an antagonistic witness, even if you had to move heaven and earth to get them there.  This is the social work portion of the job.

So far, I've never had to charge anyone with criminal contempt for refusing to testify.  But, in my line of work, that could all change tomorrow.

Check out the flip side view from defense attorney Jamison Koehler.

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