Friday, March 30, 2012

Is the Murder of Trayvon Martin a Hate Crime?

These are the most difficult cases for so many reasons.  Charging someone with a hate crime escalates the level felony and sentence, starts a media firestorm, and provides a set of standards through which the public will judge a case.

What is a hate crime?  Under New York law, it's a two part analysis.  First, the crime committed must be one enumerated by the legislature.  Examples of this are assaults, murders, robberies, arsons, burglaries, and rapes.  It is an expansive list.

The second step is that the suspect intentionally select the victim because of a belief regarding race, color, national origin, ancestry, gender, religion, age, disability or sexual orientation.  This is where it gets complicated.

White on black, black on white, Hispanic on black, white on Arab, or any other combination does not automatically elevate a crime to a hate crime.  There must be proof beyond a reasonable doubt that the victim was targeted because of their status.

It adds an element to the crime.  Some states will not charge a hate crime because of this additional burden.  In an assault case, we only have to prove the defendant intentionally caused injury to a person.  If it is charged as a hate crime, we now have to prove the crime was motivated by hate for a class of people.  If not, the jury can acquit the defendant.

A few examples from cases:

An African-American victim is walking down the street holding a cell phone.  Four African-Americans jump him, beat him up, and steal his phone.  During the assault they call him a "faggot."  The victim is homosexual, but never saw the defendants before in his life.

An African-American suspect calls a cab.  An African-American driver comes in a small taxi.  The suspect asks for a van.  A Somali driver comes in a van.  The suspect takes his money and phone, and shoots him in the head.  Seven months later the same suspect and two Hispanic men agree to rob a cab.  The suspect tells them he has done it before.  He also says that they cannot rob "black or white cabbies, they don't carry no money.  You gotta do an Arab.  They carry all the cash."  They then rob a Pakistani driver at gun point.

What do you think?  Are these hate crimes?

I've discussed the ability to use a person's prior bad acts against them.  The courts dislike the practice.  But, with hate crimes, isn't the only way to get proof of a person's beliefs to investigate their history and see their views against a class of people?  It is very rare that we get any evidence during a crime to show us it was racially motivated.  Don't hate crimes now require us to judge a person's past too?

Federal courts do not have jurisdiction over murders or other cases without some special connection.  The only way the federal government will prosecute George Zimmerman is if they determine the crime was racially motivated.

Media, investigators, attorneys, police, and private citizens are digging into George Zimmerman's history as we speak.  Any racially motivated acts will be uncovered.  The real question becomes what does the government do with that information?  If it exists, can they use it against him?  How far back can they go?  Is it fair?  Or should they only be able to use the facts that surrounded the actual event?

Wednesday, March 28, 2012

Trayvon Martin and Justification

An explanation of justification appears in order in light of the Trayvon Martin case.  Justification is the legal term for self-defense.  There are two kinds of justification claims.  The first is using physical force and the second is using deadly physical force.  What follows is a discussion of New York law on the issue.  I discuss some of Florida's differences towards the end.

Physical Force

This is the easy one.  A person may use the same force used against them.  A push for a push.  A punch for a punch.  If you exceed the level of force the attacker used, then you are not justified.  Therefore, you can't use a gun in a knife fight.  Or a knife in a fist fight.  If you do, then you cannot make a justification claim.

Deadly Physical Force

This is where it gets complicated.  A person may use deadly physical force to defend themselves against deadly physical force.  The law requires a multi-level analysis when a person claims they are justified in killing someone.  It depends on a few factors:  1) who was the initial aggressor, 2) killer's actual beliefs, 3) what a reasonable person would believe, and 4) if the person was not in their home, could they have retreated in complete safety.

Initial Aggressor

Killing someone is not legally justified if the killer provokes the fight.  A person cannot bait someone into a fight and then kill them and claim they were defending themselves.  This is true even if the fight starts off as a fist fight.

Actual Beliefs - Subjective Analysis

This analysis takes into account what the killer actually believed.  The person must have actually believed that the deceased was about to use deadly physical force before they killed him.  It is not probably or maybe.  There must be an actual belief.

What Would a Reasonable Person Believe - Objective Analysis

The defendant's beliefs alone are not enough.  Jurors must also decide what a reasonable person would have believed in the defendant's position.  If a reasonable person knew what the defendant knew and was in the same circumstances, would they have believed deadly physical force was about to be used on them.

This is a safeguard against people claiming justified killings in every case.  New York courts have added the reasonableness requirement as an objective analysis to be used in analyzing a case.

The fact that the killer was mistaken does not matter if he honestly believed he was about to be killed and a reasonable person in his position would believe the same thing.

Duty to Retreat

A person is not required to retreat in their home.  But, if you are out on the street and someone pulls a knife on you, you would not be justified in killing that person if you could have escaped safely.  A person has a duty to retreat if they are able, as long as you are not in your own home.  New York does not have a law that allows you to stand your ground wherever you are.

To have a valid claim of justification in New York, the person must not be the initial aggressor, must have had an actual belief that the person they killed was about to use deadly physical force upon them, a reasonable person would have believed the same thing, and they must have tried to retreat.

Florida recently passed a "stand your ground" law.  Basically, it removes the duty to retreat in public.  It allows a person to kill someone if they are lawfully in a public place and feel their life is in jeopardy, without trying to escape the situation first.  From media accounts, it appears that the issue of an honest, mistaken belief and the "stand your ground" law are the biggest snags in this killing of Trayvon Martin.  I've only read the same news as everyone else.  I'm very interested to read all the witness statements if they become available.

A long post, but this video will summarize everything:

Monday, March 26, 2012

Trayvon Martin

It's horrific.  A young, black boy is shot by an older white man (who's really Hispanic).  A police chief is suspended.  A community and nation scream for prosecution and justice.  Experts in hate crimes, self-defense, and murder spring forth with opinions.

This is the type of case that requires a thorough police and district attorney investigation.  It requires a grand jury to hear evidence and decide what happened.  Most of all, it requires a refrain from public and political pressure.

In any case, there are certain time frames that must be adhered to or dire consequences exist.  There are statutes of limitations, speedy trial rights, discovery dates, motion practice, and various other dates.  Most of these timelines begin the minute an arrest is made.  An investigation that could be thorough and meticulous is now rushed and messy.  If timelines aren't met because a case still needs investigation, the court can impose drastic remedies that can affect the case.

High profile, racially motivated cases are the most difficult to prosecute.  Every move is critiqued.  Witnesses are interviewed in local news media and the national news before we even have a chance to speak with them.  Experts provide their opinions based on media reports that don't provide the full information.  Family members cry for arrest.  Politicians use the case to garner air time.  The accused's family cries for sympathy.

Then, there is the prosecutor.  The United States Attorney in this case.  His sole focus is on directing the investigation and prosecuting any provable crimes.  Saying that the investigation is continuing doesn't make for an interesting soundbite though.

A prosecutor needs to step back from public pressure and analyze a case like it was any other.  Granted, we are all humans and it is impossible to take the pressure completely out of it.  As a society, we want prosecutors to independently analyze every case.  If a crime is committed prosecute it, no matter who the suspect or victim is.  If not, do not prosecute the case, no matter who the suspect or victim is.

A CNN poll said that 75% of all Americans want Zimmerman arrested for shooting Martin.  What if the poll said that 75% of Americans believe Zimmerman was justified?  Should that matter?  This is the kind of sweeping conclusions and opinions thorough investigators avoid.
I fully expect a grand jury to investigate the murder of Trayvon Martin.  What happens from there is anybody's guess. 

This week, I'll discuss the law of self-defense.  I'll also talk about prosecuting hate crimes.  I'll mix in as much Florida and federal law as I feel competent in delivering.

Friday, March 23, 2012

Location, Location, Location

In preparation for a trial today, I met with a witness on Wednesday.  The trial is an embezzlement trial that has been adjourned seven times.  That's a story for a different day though.

I usually meet with witnesses in my office.  One of the main witnesses is a CPA who does the accounting for the employer who had the money stolen.  Understanding it's tax season and as a courtesy, I met with him at his office.

There was a hitch though.  His usual office was involved in a fire recently so he had moved.  The only short term space he could find while his office was repaired was in a funeral home.

Odd enough.  As I pull into the funeral home parking lot, I'm surprised to see that the building is split in half.  Half is the funeral home.  Half is a prominent personal injury attorney. 

Doesn't the attorney know he's only perpetuating stereotypes?  Maybe clients have hired him out of this arrangement.  As a client, I'd turn around when I got in the parking lot.  You'd have to be careful not to walk in the wrong door. 

If the trial goes, check back for progress and stories next week.

Wednesday, March 21, 2012

Just a Little Touch DNA

I always leave these conferences with mixed opinions.  Some of the speakers are terrific.  Clear, concise, funny, and a teacher at the same time.  Some you struggle to stay awake through.  This was no different.

Two things I learned:  1) New York state forensic scientists are highly intelligent and highly professional.  The labs they work for go through rigorous review and they remain neutral when analyzing evidence and testifying.  The analyst doesn't care if the DNA will send someone to jail for the rest of their life or if it will exonerate an innocent man.  They only care about accuracy.  2) I still couldn't tell you how they get to their conclusions.  I think the only way to actually learn how DNA testing works is to do it. 

I doubt they'd let me anywhere near a lab.

Anyone that doesn't believe DNA typing is valid science should sit through this conference.  The smartest people in the world are making amazing advances in this field.  It's incredibly accurate science with a tremendous amount of safeguards.

I didn't learn any ways to keep jurors awake during the testimony, but I'll keep trying.  It will depend on the case.  If DNA is a small segment of a case, I will not focus on the scientific part of the testimony.  If DNA is the whole case, then I'll put all the jurors to sleep with incredibly detailed testimony.   

Monday, March 19, 2012

It's in Your DNA

At least, I think it is.  I leave for a conference today in central New York on DNA.  I'll tell you after that.

I was speaking with a newspaper reporter last week about expert testimony.  He said that's the hour or so jurors go to sleep during a trial.  All they want to hear is the ultimate conclusion.  If it's a ballistics expert, they want to hear the gun worked.  DNA?  They want to hear whether the defendant's DNA was on the victim.  Medical Examiner?  How the person died.  Jurors can do without all the scientific info, he said. 

There are so many technical steps that create the expert's conclusion.  I usually don't understand it all.  The jurors understand even less.  But, attorneys feel it necessary to draw out excruciating minutiae.  Maybe boring, drawn out testimony is in our nature?

As for the conference, some are better than others.  I always enjoy seeing old friends and meeting new ones.  I hope this conference shows us how to transform the most boring part of trial to the most exciting.

See you all Wednesday with a report.

Friday, March 16, 2012

Crash the System

An article in the New York Times last weekend argued that every defendant should take their case to trial.  The ultimate goal is to encourage reform to a system viewed as broken.  The writer argues that officials would see the criminal justice system grind to a halt and demand reform.

The article leans heavy against prosecutors, saying that over 90% of defendants waive their constitutional rights and plead guilty before trial. It insinuates that this happens because the system forces innocent people to plead guilty.

I've discussed plea bargaining before.  I am not in the business of convicting innocent people.  I abhor the idea.  I am not in the business of prosecuting cases when the police violated constitutional rights.  A prosecutor's first responsibility is to seek justice.  That means justice for all parties, the people of the state we work for, the victims, and the accused.

My office's plea bargain policies are based on a thorough investigation of the case. If we cannot prove a case beyond a reasonable doubt at trial, it does not get indicted.  Trials happen for a number of reasons.  The defendant believes they committed the crime, but had a legal reason to do so (self-defense).  The defendant     didn't do it. The defendant has nothing to lose because there is no offer.

If each defendant exercised their right to a jury trial, the system wouldn't crash. It would just slow. Cases that take a year to get to trial will now take three. Costs would increase because more judges, prosecutors, and attorneys are required.

The only ones I can see suffering are the victims and defendants. The victims suffer because justice would be delayed. Defendants would suffer for two reasons. First, they would have rejected any plea offer with a lower sentence. After trial, the sentences are usually higher because the judge has heard all the evidence. Second, they may also remain in jail for years while they await a trial. I can't imagine waiting in jail for five years for a jury to acquit me.

I am obviously biased in this argument. I do agree that many parts of the system need reform. Trying to delay an already arduous system isn't the answer.

Wednesday, March 14, 2012

A Random Tuesday in Court

I took a few days off last week to deal with some unexpected family issues.  The desk never clears for the first few days back.  Unlike scheduled vacations, unexpected time off doesn't allow for preparations.

Even though I was in town, I didn't check emails or voicemails. You better believe I'm paying for that this week.

Monday was an absolute mess.  I had no idea what my schedule was.  A dozen voicemails and a hundred emails waited.  Tuesday was looking clear, until colleagues reminded me of some cases I had scheduled and a training I had signed up to help with.

I had five cases on total for Tuesday.  Two in city court in the morning.  The training from 11:30-2:15.  Then three pleas and a pre-trial conference on at 2:00.  Most of my voicemails were defense attorneys telling me that the pleas were falling through.  My back was against the wall with time left on some of those cases, so I had to scramble to prepare grand jury presentations if the pleas did not go forward.

Sometimes, the legal gods do smile on us though.  The two defendants in the morning both voluntarily provided me DNA, saving me months of legal arguments and testing. The training went smoothly and even finished early so I made it to court on time.

One defense attorney asked me to send his 15 year old gun point robber to family court or he wouldn't plea.  Another defense attorney told me his client would make a motion to fire him.  I had grand jury scheduled for both.  Prepared for the worst, I entered the courtroom for an afternoon session.  

The defendant looking to fire his attorney?  Had a change of heart when we brought him to the judge.  He decided to plead guilty to our reduced plea offer.

The 15 year old looking for family court?  Once the judge and I explained that the defendant has already been through family court numerous unsuccessful times, the defense attorney stopped asking.  His client plead guilty.  

My third plea went without a hitch.

I walked out of the courtroom and couldn't believe the entire day had gone so well. Some days, luck shines on you.  It's usually when you thought good luck forgot you existed though.

Monday, March 12, 2012

So, Why Law School?

I hear this question frequently.  It comes from lawyers and non-lawyers alike.  From college students contemplating law school and middle-aged men wishing they would have went.

As a writer and lawyer, words are the tools of my craft.  You would expect some witty reply that sums up my basic philosophy in life.  That is what the person who asked the question expects too.

My answer always disappoints.  The truth usually does.  The answer is I don't know.

My life has always been a guessing game.  When I describe my past, no one could have predicted my future.  And I feel that's still the case.  There is a lot more future for me out there and I don't have a clue where it will take me.  That is the exciting part of life, isn't it?

I digress.  So the real reason I went to law school?  I had finished college and dropped out of a master's program in speech therapy.  I was no longer interested in it.  I returned to my part-time job stocking shelves at a grocery store, started substitute teaching, and joined a volunteer fire company.

At the time, I was contemplating full-time employment at the grocery store.  Work my way up through the ranks and maybe I'd be a store manager by the time I was 40.

It was actually the chief of my fire company that changed the course of my life.  He told me that I needed to seek out a big city.  A person can only grow as big as their surroundings.  My destiny was not in stocking broccoli and pruning romaine lettuce.

A friend of mine was set on going to law school.  I decided to check it out.  I was a bit naive as I took the LSAT (which is exactly what it sounds like.  SAT's for law school), but I did well enough to get into a school.  A law degree would allow me to get an advanced degree, but not limit me to a particular field. A law degree would help open doors that were otherwise closed.

Law school was never the dream for me.  It became a means to an end of doing something bigger than I could imagine.  I still don't know what that will be.  I envy people I meet that are performing their dream jobs, or had specific goals from the time they were young.  For me, the river of life swept me along.  I floated and followed.  Sometimes I kicked my legs to feel like I was in motion.

It took someone to push me out of the current to actually start moving.  Thank you.

Wednesday, March 7, 2012

Guns in New York

A recent comment asked for some clarification on gun laws in New York State (thank you Lisa Regan).

This post discusses some of the highlights of New York's gun laws.

Posses a loaded handgun, loaded sawed off shotgun, or loaded sawed off rifle?  "C" armed violent felony.  Punishable by a minimum of 3 and a half years and a maximum of 15 years.

Possess that same loaded gun in your home or at your work?  An "A" misdemeanor, punishable by up to one year in jail.  If the defendant already has a prior conviction, then possessing it at home or work doesn't matter.  It becomes a "C" armed violent felony no matter where it is.

Possess an unloaded handgun, unloaded sawed off shotgun, or unloaded sawed off rifle?  An "A" misdemeanor, punishable by up to one year in jail.

If that unloaded gun's serial number is defaced?  A "D" felony, punishable from probation up to 7 years in prison.  The law also says that if it's in your possession, it's presumed you knew it was defaced.

What about a person who has a permit, but violates the provisions of that permit?  Examples of this are persons who carry a handgun on their person, but only have a permit that allows target practice.  Or a person in Albany County who has a full, valid permit to carry, but carries the gun into New York City without special dispensation from the commissioner of police.  That's an "A" misdemeanor, punishable by up to one year in jail.

What about out of state permits?  New York doesn't recognize them.  So, if you carry a gun in NY and you have an out of state permit, you'll be treated like you had no permit at all.  That means a "C" felony, punishable by 3 and a half to 15 years.  This was one of the reasons Plaxico Burress got in trouble.

Monday, March 5, 2012

Reality Check

The pattern is always the same.  You hear footsteps in the hallway.  The footsteps slow, then increase, then slow again.  A blur moves past your office door, and then the footsteps stop.  The steps return and the blur transforms into a man.

The man morphs into a supervisor and he says, "I need you to take a case."  At first you feel flattered. After all, this supervisor selected you out of everyone else to handle a case of such importance.  Then, you remember the slow and fast footsteps.  You realize that the supervisor was pacing the halls and slowing in front of every door.  When he realized that no one was there, he moved on.

I wasn't sought out.  I was merely present.  Sometimes that's enough to give you a different perspective in life.

The blue file I held in my hands presented a simple, but sad case.  Last summer, a woman went out with some friends to her neighborhood bar.  Her boyfriend showed up a few hours later.  He was uninvited and angry.

The night was warm.  The street was busy.  Even at two in the morning, a steady stream of cars kept headlights battled the darkness.  Pedestrians meandered between a few bars and the corner stores.

This neighborhood bar only existed.  It had for years.  It didn't thrive; it didn't fail.  It just was.  The doors remained open on the backs and wallets of the neighborhood.  The ripped, black leather of the bar stools looked like tendrils reaching up to help lighten the patron's finances.  The jukebox hadn't seen an update in music or technology since it was considered cutting edge in the early 90's.  PBR was still the draft of choice.  

The inside mirrored the darkness outside.  In the early morning hours of a weeknight, the only ones left were two armed security guards, teenagers who managed to get past those guards, and the regulars.  The armed guards were an extension of the neighborhood - willing to let everyone have some fun, but ready to punish if they got out of line.

Veronica (pseudonym) was with two girlfriends.  She wasn't exactly a regular, but knew enough people there so she didn't create a stir.  The stir came when her boyfriend showed up looking for her.

Witnesses pieced together the argument later for the police, and for me.  Veronica went outside with her boyfriend when he arrived.  They moved towards his car parked across the street.  The security guards remember yelling and saw a man push a woman to the ground.  The security guards sensed a problem and forced two girls to get out their SUV, which was parked in front of the bar.  

While the guards ushered the girls from the SUV inside, one of them turned and saw Veronica walking towards them.  A car pulled from across the street.  

Light is faster than sound.  It's why we see fireworks first before hearing the boom.  Flashes erupted from the moving car towards the bar.  The sounds of gunshots echoed shortly after.  Six shots.  Three into the now vacant car.  Two into the walls of the bar.  

One through the bar window, past the bar and stools, and into a cook's chest as he delivered a plate of food to a patron.  The bullet struck a narrow metal strip and broke in two pieces before it hit the cook.  

It saved his life as both pieces missed his heart.   

All the witnesses were cooperative, save one.  Veronica.

Veronica was the intended target of her boyfriend's bullets.  Phone calls went unanswered.  Letters came back.  Then, we sent out subpoenas.  It took weeks to find her, but we finally did.

She appeared at my office in the morning.  I took her to a conference room for a private conversation.  She told her story, which is to say she told me nothing.  I pressed and prodded.  I invoked her life, and the life of the man that was shot.  I held my thumb and index finger millimeters apart and told her that was how close the man had come from dying.  I told her it was time to get away from her boyfriend who tried to kill her and that we could help her.  Otherwise, she could get hurt.  Or killed.

Veronica looked me in the eyes.  "Sir, people get killed every day on my streets.  That man didn't get killed.  Good for him.  If you and I talk, I mean real talk, then my kids ain't gonna have a mommy no more and you be working my case."

The next time I saw Veronica was when she hugged her boyfriend as the court officers took him to jail following his sentencing for shooting the cook.             

Thursday, March 1, 2012

Caught in a Lie

lie [lahy]  noun, verb, lied, ly·ing.

1. a false statement made with deliberate intent to deceive; an intentional untruth; a falsehood.
2. something intended or serving to convey a false impression; imposture: His flashy car was a lie that deceived no one.
3. an inaccurate or false statement.
4. the charge or accusation of lying: He flung the lie back at his accusers.
verb (used without object)
5. to speak falsely or utter untruth knowingly, as with intent to deceive.
6. to express what is false; convey a false impression.

Prosecutors are routinely reprimanded when they use this word during a closing argument.  That's especially true when we call a defendant's version of events a lie.  Many New York courts say it's prosecutorial misconduct to call a defendant a liar during a closing argument.  Sometimes, that misconduct allows an appellate court to throw a conviction out and grant a new trial.  Imagine that.  After somehow finding twenty or so witnesses, coordinating schedules, securing their testimony, and getting twelve strangers to agree on a verdict of guilt, the court tells you to do it again.

Every person on the planet probably utters the word at least once a day.  So why do the courts despise the word?  Attorneys are allowed to call a witness's version of events into question, call it unbelievable, not worthy of belief, not credible, or any other permutation.  But not the big "L" word.

Part of the courts' reasoning is that calling someone a liar is an attorney expressing their opinion in the case.  That is something attorneys are not allowed to do.  The jury is supposed to be swayed by evidence, not an attorney's belief.

The courts consider use of the word "lie" inflammatory as well.  Calling a testifying defendant a liar is akin to saying he committed perjury.  We wouldn't normally be allowed to hurl accusations at a defendant without proof, so the courts tell us the word isn't appropriate.

But what's the difference when we use words like "unbelievable" and "simply can't be true"?  Don't these phrases really mean "lie"?

Words are a trial attorney's tools.  We refine, sharpen, and sling them together to convince jurors that our side is correct.  Sometimes attorneys cross the lines of legal argument and move into inflammatory rhetoric.  Many times, however, we find out we crossed the line when an appellate court tells us.

My personal favorite line that didn't use the word lie?  A prosecutor said on summation, "Ladies and gentlemen, it's surprising the Bible didn't burst into flames when the defendant put his hand on it and swore to tell the truth."

What do you think?  Is using words like "lie" or "liar" crossing the line?  Or should it be fair game?