Friday, June 29, 2012

Cruel and Unusual Punishment?

It depends on your views.  With immigration and the health care law, what the Supreme Court did this week in the land of juvenile justice is getting overlooked. 

In Miller v. Alabama, the Supreme Court ruled that a sentence of life imprisonment without the possibility of parole for persons under eighteen violates the Eighth Amendment's prohibition on cruel and unusual punishment.  The Court ruled that mandatory life sentences for two fourteen year olds convicted of murder should not stand. 

It is a ban on states that have mandatory life without parole sentences, not on discretionary life without parole sentences where the court or jury considers the background of the juvenile and all other circumsances.

The Court divided 5 to 4 on this issue in deciding two cases similtaneously.  Evan Miller, the defendant, was fourteen when he and another boy beat and robbed a neighbor with a baseball bat and then burned the trailor to the ground with the victim inside.  In the second case, Arkansas native Kuntrell Jackson, fourteen, was convicted of murder when a store clerk was shot and killed during a robbery by one of his accomplices.

The Supreme Court took issue with legislatures mandating life without parole sentences in these cases.

This is an extension of the Court's decision in Graham v. Florida, in 2010.  In that case, a sixteen year old was sentenced to life without the possibiltiy of parole for an armed robbery.  The Court held unequivocally, that life without parole sentences are never valid for juveniles in non-homicde cases.   

The Supreme Court has taken a chunk out of juvenile sentencing in the last few years.  In Roper v. Simmons, in 2005, the Supreme Court ruled that the death penalty is no longer available for juveniles convicted of murder.  It again ruled that this is a violation of the Eighth Amendment.  The Court stated that their opinions can reflect the standards of an evolving society on the issue of sentencing. 

The Supreme Court had taken up the juvenile death penalty previously.  In 1989, in Stanford v. Kentucky, the Supreme Court upheld the death penalty for juvniles convicted of murder.  In those cases, the defendants were sixteen and seventeen. 

The Supreme Court admittedly analyzes sentencing based on the standards and decency of an evolving society.  None of these decisions will affect juvenile sentencing in New York State.  New York State does not have a death penalty anymore and juvenile offenders, even those convicted of murder, have a maximum sentence of fifteen years to life. 

Juvenile justice is a lightning rod issue.  Some of the juvenile crimes are the most heinous and violent.  We walk a fine line between an appropriate sentence and rehabilitation.  A bill is winding its way through the New York legislature right now that will overhaul the entire juvenile offender system. 

For better or worse is yet to be seen.  The other question is, why is eighteen the cut-off?  Or sixteen?  Or whereever someone will draw a line.  Some studies say the brain is still devloping through a person's twenty-fifth birthday.  Picking an arbitrary date leaves a lot of room for future debate. 

Wednesday, June 27, 2012

They Told Me I Was Special

There comes a time in every prosecutor's life when they must hear this.  For me, it came from the big boss himself.  The one who does the hiring and firing.  And compliments like these are not to be overlooked.

"Hey, do you wanna be a special prosecutor in (blank) county?"

What that means ladies and gentleman is that an adjoining county has a conflict in a criminal case.  Due to the conflict, the judge in that county ordered the appointment of a special prosecutor.  So because my name was pulled from a hat or I was in my office at the right time, I am now a special prosecutor in a different county.

It is a very interesting case that was reversed by the appellate division after the first trial partially because the police obtained a DNA sample from the defendant by using a taser.  (Apprarently that's wrong?)  I wish I could say more, but I risk crossing one of the two rules I operate under.  All I can say is that one of the attorneys on the defense side for the first trial is now a prosecutor in that county.  The appearance of a conflict was too much for the court to overcome.

I'll be spending many a day making the long trek North and trying a case in front of a judge I've never appeared in front of.  I'm certain the judge will have quirky rules that I'll run afoul of within minutes of entering the courtroom.

It will be a unique experience.  The courtrooms I opereate in now are located in the same building as my office.  My travel involves just an elevator trip down.  Looks like I'll get to experience the life of a defense attorney and civil attorney, who must lug all their boxes and exhibits to court each day.

I'll keep you posted as things develop and give a full recap of the case once it's over.  Unfortuantely, the trial isn't scheduled until October.  Patience is a virtue, they say.

How do you refuse a compliment like this?  These are the compliments that come through work.  Do a good job and your reward is more work, higher profile cases, and more at stake for a loss, all for the same pay.  It's the joys of a public servant.  Still want to be a prosecutor?

I'll never forget telling my brother, the police detective, about my first promotion.  I was joining a supervisory role over new ADAs.  This was his quote:  "So, they are moving you from your own office to one you will now share with three others.  You'll have more work and longer hours.  Are you sure they didn't say demotion?"

Monday, June 25, 2012

Insane or Not?

This case keeps surprising me right up through the end.  Anders Behring Breivik's trial wrapped up last week.  It's an insanity case, with a twist.  Prosecutors want him declared legally insane and the defense is asking that he be declared sane.


I've previously posted about this case.  Five judges are set to determine his fate.  They must analyze the evidence and motivation behind the killing of 77 people.  Breivik claimed that he was acting to protect Norwegian culture from Muslim immigrants.  If he is found legally sane and guilty, then he can face up to 21 years in jail.

I suspect this is why the prosecution is asking he be declared legally insane.  If he is declared insane, he can spend the rest of his life in mental hospitals.  Therefore, he would never get out and be a danger to society again.

If he's found sane and goes to jail for 21 years, he'll get out someday.  The defense is asking for this.  Even if that day is two decades away, Breivik is clearly dangerous and remorseless.  It's an extremely interesting strategy by each side that you may never see in the U.S.  

Take New York State for example.  We'll assume that the Breivik committed these crimes here.  And we'll assume the federal government isn't prosecuting it (although they would in a minute), but the district attorney's office is.  

The first step in an insanity case is to test competency.  At any time, the judge or either party can have the defendant tested to determine if he's competent to stand trial.  Psychiatrists analyze the defendant to determine if he is able to understand the proceedings against him and assist in his defense.  This is a low standard.  If the defendant knows the job of a judge, the prosecutor, the jury, and his attorney, then he is usually declared fit.

If he's found fit to proceed, then it's on to the next step.  The defense attorney, not the prosecutor, interposes the insanity defense.  It's found in New York Penal Law Section 40.15.  It is an affirmative defense, which means the defendant must prove that he lacked the capacity to know or appreciate either: 1) the nature and consequences of such conduct, or 2) that such conduct was wrong.

This allows a defendant to know what he had done, but still be found not guilty by reason of mental disease or defect because he did not appreciate the legal and moral consequences of the act.  It is a very difficult standard to apply, and extremely imposing for twelve average men and women pulled from the street and asked to sit on a jury.

If Breivik was in New York, he would be subjected to 77 consecutive life sentences without parole if convicted.  He would serve these sentences with the worst offenders in maximum security prisons.  If found insane, he would not be found guilty.  Instead he would be confined to a mental institution for a significant length of time.

If Breivik was under the U.S. legal system, he would most likely pursue the insanity defense.  It's interesting how one's claim of insanity could change depending on the rules of the game.  

Friday, June 22, 2012

Innocence, Bullies, and Humanity

We've had lots of great questions for Carrie Wood from The Innocence Project.  I'm sending her the questions this weekend so either comment or email today.  See here.

On a different note, the below video is disturbing.  A person always feels stronger in a group and sometimes that group is downright evil.  I've previously posted on the mob mentality.  Below is another example of it, with a twist.  Middle school kids ganging up on an elderly bus monitor.  Be warned - there is foul language and it will make you physically ill.

But the worst in humanity brings out the best humans have to offer.  At last count, donors have sent over $400,000 to Karen Klein on the website  It started as an effort to send her on vacation, but is quickly turning into a retirement fund.  Check out the efforts.

There should be a follow-up story on what the punishment is for these kids.  Both from the school and parents.  It is shameful behavior and not a good way for upstate New York to obtain the national spotlight.

Thursday, June 21, 2012

Confronting Confusion

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. Constitution, Sixth Amendment (emphasis added).

They are only eight words.  Eight words that mean a defendant has a right to see his accusers testify.  Clear.  Simple.  Concise.

And that is why you have lawyers.  We can help to confuse anything.

This is called the confrontation clause.  It's what stops prosecutors from placing witnesses on the stand to say what they heard on the streets.  Or from police officers just reading witness statements.  A defendant has a guaranteed right to have their attorney cross-examine witnesses.

What's that you say?  What about hearsay?  It's always allowed in evidence.  Hearsay is a person's statement outside of the witness stand that's being offered into evidence to prove a truth.  Most often this is in the form of what one person told another.  Hearsay is inadmissible in court because hearsay statements are generally unreliable and the confrontation clause guarantees the right to confront your accusers.
But there are so many exceptions to the hearsay rule that we don't have enough room to discuss them all.  Examples:

Admission - Defendant confesses to the police.
Dying declaration - Victim, thinking he was close to his last breath, points at Johnny and says "Johnny did it."
Statement of Intent - "Bill said he was going to the store."
Excited Utterance - immediately after a robbery a witness shouts at the police, "Sal pulled the gun on me.  He stole my stuff!"
Business Records - Documents made in the regular course of business, like phone or bank records.

These are all exceptions to the hearsay rule.  The number of exceptions began to overwhelm the rule.  That was why the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004) ruled that any out of court statement (hearsay) that is testimonial is not admissible unless the declarant (person who made the statement) is available to testify at trial.  Whew.  So what does that mean?

Is a 911 call testimonial?  Is a certified lab report that says a substance is cocaine testimonial?  What if one analyst swabs a gun for DNA and then turns it over to another analyst to analyze the DNA?  Do we have to call both analysts?  What if it was sent to a private lab?  Do we have to call the driver of the truck who transported it?  The person who signed it into the lab?  The person who keeps the freezers at the correct temperature?

How far does testimonial go?  It's a trial.  Everything is testimonial., right?
Courts have struggled to determine what evidence is testimonial and what is non-testimonial.  The Supreme Court tried to help two years later in Davis v. Washington, 547 U.S. 813 (2006).  This case concerned whether a 911 call was testimonial.  The Davis Court said that it was not testimonial because it was not a police interrogation about past events, but a response to an emergency.  It was a non-testimonial excited utterance and thus admissible.

The main problem prosecutors find with the confrontation clause is when experts testify about pieces of evidence.  This is especially true in major cities where many hands will touch a piece of evidence and only one person will be called to testify about it.  Also, many communities send their materials to a private lab for testing.  The employees leave that lab for different jobs in different cities, or the labs don't have the same protocols as state sponsored labs.  It becomes financially onerous and sometimes impossible to discover each person.
The Supreme Court just upheld a rape conviction in Williams v. Illinois, In this case, the state sent out a piece of evidence for DNA analysis.  A private lab performed the analysis and sent it back.  Then a DNA analyst for the state compared the private lab results to the defendant's DNA and determined it was a match.  No one from the private lab was called to testify at trial.  The analyst testified about the private lab's report.

On it's face, it appears to violate the confrontation clause.  One witness is testifying about what another witness did.  But the Supreme Court decided this was fine and admissible.  It was not testimonial or hearsay because it was not being offered into evidence to prove it was true.  It was being offered into evidence to prove it was a match to the defendant.

Okay.  So, now we are all confused.  Especially you non-lawyers.  This is an overly simple analysis of an almost one hundred page decision, but we can all see the point.  For a document that is over two hundred years old, the Constitution is still evolving.  The rules of the game change every year.  Unfortunately, what might have been valid law at the time of trial may change by the time the Supreme Court hears the case years later.

Then, we do it all over again under the new laws.  My rule of thumb is to call all the witnesses in the chain, if I can find them.  If not, then I think of arguments why it doesn't violate the confrontation clause.

Monday, June 18, 2012


It happens.  We're all human.  We all mess up.  Overlook something.  Forget something, or just plain miss the big picture sometimes.

Disclaimer - the facts of this case allege a child rape.

The New York Court of Appeals just decided a case last week that explains what happens when a prosecutor uncovers their error in the middle of trial and tries to correct it in People v. Kelley,
It was a sexual assault case, a father raping his daughter.  The police collected the victim's underwear, bedsheets, and a towel that was supposedly used for the defendant's semen.  The underwear contained male DNA, but it wasn't the defendant's DNA.  It was an unknown male.

The prosecution was going to trial without testing the towel.  It appeared to just be an oversight.  Either the prosecutor didn't know the towel existed, thought it was already tested for DNA, or forgot about it.  So the defense at trial was that yes the girl was raped, but it wasn't the defendant.  Look at the DNA on the underwear.  It's not his and that shows he's innocent.

During the trial, the prosecutor had the towel tested.  The results came back after the defense attorney put forth his defense and the defendant testified.  The towel contained semen and the DNA matched the defendant's DNA.  But the female DNA on the towel wasn't the victim's.  Now there was corroboration for the victim's version of events.  And the defense theory of the case?  This blew it out of the water.
The trial judge allowed the evidence into trial over the defense objection that his client's right to a fair trial was impaired.  The defendant was convicted and appealed.  The Court of Appeals reversed.  They said that the proper ruling should have been to preclude the evidence at trial or to declare a mistrial and start over.  The defense theory of the case was irreparably harmed due to allowing the evidence in the middle of the trial.  The trial was too far along to call it a harmless error.

One Justice dissented, stating that the trial court acted property because the late testing was not a deliberate strategic act, but a simple oversight. 

It doesn't matter though, because the Court of Appeals has spoken and the case must be retried.  The daughter must testify against her father again in Court.

I empathize with the prosecutor.  Every one of us makes mistakes that affect a case.  We're human.  It's a difficult phone call to make to a sexual assault victim.  The call that she has to go through it again. 

Friday, June 15, 2012

The Innocence Project Interview

As promised, Prosecutor's Discretion is interviewing Carrie Wood, an attorney for The Innocence Project in Ohio.

Carrie has graciously agreed to answer my questions and yours.  Prior to joining The Innocence Project, she was a staff attorney for the Legal Aid Society in the Bronx (hence how we met).   

Over the course of the next week, email your questions or put them in comments for Carrie.  I have many questions, but she is very excited to answer all of yours.  After we collect all your questions, we'll interview Ms. Wood.  I hope to have the interview for you the week of June 25. 

Also, we're going to attempt a redesign of the website over the next few weeks.  It's been up and running for ten months.  Time for some changes. 

Have a good weekend.


Wednesday, June 13, 2012

The Difference Between Accident and Collision

We are a second guessing society.  It's the nature of criminal law.  One can't be held accountable until they do something wrong.  A decision many of us make every day turns deadly and we'll be there to judge, blame, and vilify.    

Driving drunk is a crime.  No one realizes that until they are caught.  Or kill someone.  Texting while driving is dangerous.  Speeding is dangerous.  Dialing a number while driving is dangerous.  The vast majority of people have done one or all of the above.  We cite it as no big deal until someone gets hurt.

In Massachusetts this week, eighteen year old Aaron Deveau was found guilty of motor vehicle homicide for texting while driving and crossing over the center line, striking an on-coming car and killing its passenger.  Check out the result in the picture above.

Public reactions in cases like this run from outrage and indignation to thankfulness it was someone else.  Stories of dangerous activities while driving and causing serious accidents appear everyday in every community.  Lives are destroyed due to negligence.

Yet DWI is more prevalent than ever.  Smart phones allow all of us to send a quick message to a friend, or read one.  We all eat or drink coffee in the car.  We spill it and stare down into our lap to see the results.  We have had a rash of DWI deaths this year in my office, including one high profile trial where a renowned doctor struck and killed a teenage girl.  DWI and reckless driving don't afflict only certain segments of the population.  Professionals and the poor share the experience of DWI arrests or losing a loved one to a reckless driver.

During prom season, my office runs STOP-DWI campaigns in the local high schools.  An ADA, police officer, and someone affected by a drunk driver speak to students, hoping to avoid a disaster.  I met a woman the last time I spoke who lost seven family members and friends to drunk drivers.  I can't imagine losing anyone to something so preventable.

Many people are hesitant to judge drunk or reckless drivers and are quick to call such crimes accidents. "There but for the grace of God go I."  That's the common sentiment.  But loading yourself up with booze and getting behind the wheel of a car that weights a ton causes a collision.  The crash is inevitable because alcohol slows down reaction times.  Combine that with all the distractions a car provides - radio, bluetooth, smart phones, food, and drink - and it's amazing there are not more crashes.

An accident is when a driver strikes a deer running across the road.  It's something unavoidable that truly no one could predict.  A collision is when a person's choices create the conditions for a crash, like drinking and driving.  Unlike the social, economic, and family conditions that create violent crime, drunk driving is an easy fix.

So then why are there more arrests every year?

Monday, June 11, 2012

Scott Walker, the Recall, and Twitter

This isn't about politics.  This isn't about public unions.  It's not about Democrat or Republican.  It's about civility.  This is about the reaction following Governor Scott Walker's victory in the recall election last week.

In today's world, anyone can create a pseudonym and become an anonymous online face.  Or even if they don't, everyone has instant access to sending their views to thousands or even millions of people with a mouse click.  Many use this technology to provide thoughtful views and information to the public and their followers.

Then, there are the others.

Any website that allows public comment (including this one) has commenters that run the gamut of insight.  These comments run from thoughtful and hopeful to start a debate to insulting and looking for a fight.  One such comment on this site suggested prosecutors should burn in hell. is a website that follows popular tweets and trends in the Twitter universe.  Immediately after Scott Walker survived recall, angry tweets came fast and furious.  Check them out here.  Death threats and prayers for serious injury toward someone are simply unacceptable.  Even in politics. 

These comments and reactions to stories and events are the lowest form of communication.  Anyone with a computer and email address can create an anonymous personality and spew hate from their mouth at anyone without fear of recrimination.  What happened to intelligent debate and respect for an opponent's viewpoint?  It seems that today's world is an act first, think later society.  Just think of the people who hit reply all instead of reply to one.  People have no problem announcing their first, visceral reaction to an event, no matter what it is.

The legal view - There's a line between First Amendment rights and behavior.  A person cannot yell fire in a crowded theater because of the inherent danger created by causing a stampede of people.  Death threats towards governors and presidents will raise a flag and someone will investigate, even if it was a joke.

The practical view - What are these people thinking?  Especially people on twitter who use their real name and picture?  Employers investigate a person's online profile now.  Police and prosecutors investigate suspect's facebook and twitter accounts.  All of this will come back to haunt the commenter.  Or the person that posts a picture of himself with guns or drugs.  Or the person that admits to a crime.  Or the person that threatens a victim.

Trust me, I know.  

Friday, June 8, 2012

The Plausibility Factor

A porn star, a prime minister, murder, dismemberment, and the postal service.  Where does it all come together?

Our neighbors to the North - Canada.  An arrest of Luke Rocco Magnotta capped off an international manhunt this week.  Authorities found him at an internet cafe in Berlin apparently scouring for news of his exploits.

Mr. Magnotta is accused of killing his partner, cutting him into pieces, and then mailing those pieces to various Canadian officials.

This started my thoughts towards credibility.  If I wrote a story with the same facts, I doubt anyone would find it believable.  The sordid details of Magnotta's story can't possibly be true.  It is so far away from reality that it feels like a novel or movie.  We don't want to believe people will perform gruesome acts against each other. 

As a writer, I deal with the plausibility factor.  Is the story I'm writing plausible? Are the character's actions believable?  Or is it so far out of reality that no one would believe it and thus not want to read it?

But I also deal with it as a trial attorney.  Most jurors have never experienced the murky world of criminal law.  To them, every story has a conclusion, everything makes sense.  Unfortunately, crime does not lend itself to neat packages and clean corners.  Every case has unanswered questions.  Jurors have a difficult time getting over the plausibility factor because a violent act is so far removed from everything they know.  As prosecutors, we first have to help jurors believe the crime actually happened and then we can move into proving who did it.

The further I move in my career, the odder the cases get.  Home invasions, solicited murders, high tech drug dealing, new DNA solving cold cases. 

So how do we deal with it?  At trial, I generally start with scene setting witnesses.  Witnesses who will let the jurors know the crime actually happened.  These are the first responders.  Paramedics who treated the dying victim.  Firemen who battled a blaze.  The officers that discovered a body.

Then I move into the proof against the defendant. 

What about dealing with plausibility in writing?  I'm still working on that.   

Wednesday, June 6, 2012

Big City / Small Town

The previous series gave you a glimpse into how a big city ADA operates.  Even as I was writing it, I saw the need for a post about the differences between a prosecutor's office employing over a thousand people and one employing just under one forty.

When I left NYC for greener pastures (seriously there are greener pastures here), I thought I'd see smaller case loads and shorter hours.  How wrong that was.

As the number of people in a county decrease, so do the number of ADAs.  Instead of 400 ADAs covering cases for over two million people, I am now in a jurisdiction with 90 ADAs and one million people.  If you do the math, that means more people with less ADAs.  The caseloads were the same, if not bigger.

In many counties throughout New York State, there is only an elected District Attorney and maybe one or two full-time ADAs.  That is two or three people to cover an entire county and handle every violation, misdemeanor, and felony.  Their caseloads are in the hundreds, including day court, night court, grand jury, and trials.  The caseloads are the same.

One major difference was the defense bar.  It was not better or worse, just different.  In a smaller community, everyone knows each other.  Reputation and personal interaction means much more than it does in a bigger jurisdiction.  The same defense attorneys appear on all my files.  Trust is a necessary component to negotiation.  Once an ADA burns or lies to a defense attorney, the ADA will not get any future favors from most other defense attorneys.  And once a defense attorney is dishonest with an ADA that attorney's reputation is dirt in the DAs office.

All it takes is one mistake or one bad day.

In a large city, there are a huge number of attorneys and ADAs.  Courts are constantly putting pressure on both sides to move their calendars.  It leads to a lot of game playing on both sides.  Also, since there are so many people the lawyers run in different social circles.  You never get to know a person is outside of court.  In a smaller community, the bar is more collegial, even spending time together at different social events.

Another major difference is the judiciary.  In New York City, every plea we offered came with strings attached.  If we offered a plea to a lower charge we would also say what the sentence is.  In upstate NY, we simply offer a plea and leave all thoughts of sentencing to the judge.  Judges in smaller counties have more time to be thoughtful with a sentence on individual cases.

There's a huge difference in how cases are tried.  In New York City, defense attorneys relished jury trials because they had a better chance of an acquittal with a jury than with a judge.  In smaller communities, defendants routinely waive their right to a jury trial and have a judge try the case because they perceive a better chance of  an acquittal with a judge.

Finally, it's easier to get things done in a smaller county.  Less bureaucracy.  I can make one phone call and get necessary records within an hour that would have taken me weeks of subpoenas and motions in New York.  Also, you get to know the investigating officers better because you work with the same ones all the time.  I'm able to call them directly to get something done on a case without going through their command.

This has some drawbacks though.  The NYPD has a very strong leadership and hierarchy, almost like the military.  That means accountability.  If I needed to speak with a lieutenant about an issue, that issue would be resolved immediately.  In smaller departments, officers of every rank mix with each other.  The line between officers and lieutenants often becomes blurred. 

Monday, June 4, 2012

Day in the Life of an NYC ADA (Finale)

Check out Part 1 and Part 2.

Lunch was spent calling the officers for the surprise trial I was starting on Monday.  Thankfully, it was a gun case, which required no testimony from civilians.  I just had to pray none of my officers were on vacation.  They weren't and I started to feel better about the day.

The officers I had sent to scour the streets of the Bronx returned at 2:00 with the eyewitness.  He was unhappy and angry.  He sat across from my desk and refused to testify.  I told him I'm putting him into the  grand jury and asking him questions.  He swore he would not answer any because he "ain't no snitch."

I stood up and closed my office door.

"How old are you?"  I asked.
"Twenty-two," he said, looking out my window.
"Any kids?"
"One and another on the way."
"Well, that boy that you watched almost die on the streets is eighteen.  He has a one year old and wakes up every day thankful he can see his daughter again.  The next person that this guy shoots may not be so lucky.  And you can help stop him today.  You can save someone's life.  Maybe yours."
My twenty-two year old friend just nodded.

It was enough for me.  We walked across the street to the grand jury.

I informed the coordinators that my defendant was indeed testifying.  We called it a waiver.  That's because any witness who testifies in front of a state grand jury is given immunity for any topic they testify about.  In order for a defendant to testify, he must bring an attorney and agree to waive those rights both orally and in writing.  If he didn't and he testified, we couldn't prosecute him.

The coordinators were gracious and let me cut in line with my eyewitness.  He turned from hostile to hesitant.  I spent ten minutes asking him questions and the police then took him home. 

He shook my hand before he left.

It was 2:30 p.m.

There are two kinds of waivers - in and out.  An out waiver means the defendant is not in custody.  An in waiver means he is.  In waivers always happen in the afternoon because court officers needed to escort the defendant into and out of the grand jury.  Their morning was full of other responsibilities so the afternoon was the only time.

I informed the court officers that I was ready for my in defendant.  Other ADAs jumped the line to get their cases into the grand jury before my waiver.  Waivers routinely took a long time.  With witnesses, I wanted to put only enough testimony in to meet my burden in the grand jury.  That meant brief questioning.  With defendants, they had an opportunity to speak and then I was allowed to ask questions.  This was always expansive.  Then, the grand jury would vote on the case. 

It was 3:30 when I saw the court officers enter the elevator that leads to the lock-up.  I always wondered what happened to the hour between the time I told them I was ready and they went to get the defendant.  It's like a magic act.  You can't know all the secrets.

4:00 and the officers brought the defendant up.  He spoke with his attorney briefly and the attorney told me the waiver was still on.

4:00 on a sunny Friday.  The grand jurors were required to stay until 5:00.  If the waiver went without problems, it would end around 4:45.  Then, the grand jurors would vote the case.  This would put them past 5:00.  And that was if no one else had to rush a witness or a vote in before the weekend.  I followed the defendant and his attorney into the grand jury.  The line of assistants sitting on a skinny window ledge outside the grand jury chambers told me 5:00 was a pipe dream.

The defendant placed his left on the Bible and raised his right.  He swore to tell the truth.  He answered my litany of questions, agreeing to waive his right to immunity.  He made his thirty minute statement about the case.

I'd done enough waivers to know how they all began.

"My name is _______.  I'm only ______ years old.  Please excuse me because I'm nervous.  I didn't do anything.  I work at ______.  I've got _____ kids and take care of my sick mother."

The defendant claimed that he was merely a witness, not a participant.  He said he saw the shooter, but didn't get a good luck at him and definitely didn't know his name. 

In response to my questions, he said he didn't come forward to the police because he didn't want to get labelled as a snitch.  He didn't know the victim or eyewitness (even though he and the eyewitness grew up across the street from each other).  He admitted his prior crimes, but said he always "copped to what I did.  I didn't take a plea here, cuz I didn't do nothin."

No Perry Mason moments.  No breaking down and admitting everything.  It was a routine waiver.

It was after 5:00 when the defendant left the grand jury.  One of the coordinators was outside.  I knew what was coming.

"We've got two cases to vote.  They'll be quick.  Let them go first, then you go back in and vote."

I nodded and gathered my things from the chambers.  I counted the grand jurors - 20.  I needed at least 16 to take a vote.  And of those 16, 12 had to agree to indict. 

The two votes were quick, but still took 20 minutes.  It was after 5:30.  Two grand jurors left.  I was down to 18 remaining.

I walked back in and all 18 were gathering their belongings.  It was a collective groan when I reappeared.

"Please, I'm your last vote.  Please stay and get this done."

One passed me without looking.  17.

They eyed me as I stood in the doorway.  They sat down.  I read the charges to them and they deliberated.  It was 6:00.  These citizens conscripted to serve were working overtime for no pay.  I appreciated every second of it.

A knock came at 6:15.  They asked me to re-read the charges.  That meant some people were thinking about dismissing the case.  I re-read them and went back out with the stenographer.  I made a few jokes as we waited.  Mostly, I paced. 

The door opened at 6:30.  One more grand juror leaving.  I was down to 16.  If another one left, there could not be a vote and I'd have to release the defendant and recharge the case next week. 

6:45 and the door opens again.

"True bill," the foreperson said.  She looked tired and had gathered her belongings.  She wasn't staying one minute later.

They filed out solemnly.  I went back to the office and changed into my sneakers, leaving the paperwork that comes with a grand jury indictment until another day.

I was returning to the office the next day anyway.

Friday, June 1, 2012

Day in the Life of an NYC ADA (continued)

Check out part one here.  The series concludes on Monday.

The courtroom was three floors below the grand jury.  Sunlight bled through the windowed hallway assaulting me and mocking me at the same time.  The sun seemed to know what kind of day I had in store.

In movies there is always a dramatic moment when someone expected pushes open the double courtroom doors.  Pulling a door open doesn't have the same effect.  But when I entered, the judge looked up from the bench, smiling.

"Mr. Prosecutor," he said, ignoring the case currently on the record.  The judge did use my real name, however.

I smiled back.  "Here, your honor."

The judge directed the attorneys he was speaking with to step aside and the clerk to call my case.  I stood behind the wooden table.

"Mr. Prosecutor, I'm sending your case out to Judge Smith, forthwith.  The defendant is ready for trial."  This judge ran what was called a calendar part.  He simply churned through cases and either resolved them or sent them to other judges for the trial.  His caseload stretched into the thousands.

I looked at the defense attorney who fourteen hours ago told me he would also be requesting an adjournment.  He refused to look at me.  I contemplated telling the judge I was ready for trial and watching the defense attorney try and back out of it.

I decided against it because my reputation was worth more than playing that game.

"Your Honor, I'm sorry, I'm not ready for trial.  I am in the middle of a grand jury presentation as my colleague told you earlier.  Also, Mr. Defense Attorney told me last night he was seeking an adjournment too."

"Well, Mr. Defense Attorney has had a change of heart apparently.  You're going to trial.  You can take up all your issues with Judge Smith."  The judge smiled at me again.  "Judge Smith loves to hear excuses."

Laughter erupted from the gallery.  Everyone joined in the fun the judge was having.  The conservative Judge Smith did not tolerate excuses.  Judge Smith was the judge I would love for my trial, if I was ready.

It was time to push back.  "Judge, except for grand jury, I'd be ready for trial.  How about this?  It's a Friday anyway.  Can we ask Judge Smith to start the trial on Monday?  I will have my witnesses here and we'd only lose one day."

The judge leaned back.  He saw what I was doing.  He asked the clerk to call Judge Smith.  Judge Smith must have agreed.

"This case is scheduled for trial on Monday in front of Judge Smith.  Case adjourned and the time is chargeable to the People."

I stared at Mr. Defense Attorney who cast a sideways glance towards me.  Other attorneys moved to take our place.

"Judge, Judge?"  Mr. Defense Attorney stammered, holding his phone in his hand and his glasses were perched on his nose.

"What is it?"

"I can't do it.  Looking at my calendar, I'm scheduled to start another trial in Manhattan on Wednesday next week.  It's an older case."

Shrewd move, using another borough to delay a case.  I suspected Mr. Defense Attorney did not want to try a case in front of Judge Smith.  The judge stopped me before I spoke.

"Mr. Defense Attorney, you stood there for forty-five minutes and didn't say a word about this trial while I found you a courtroom to try this case.  Now it comes to your attention?  I think you'll have to speak to the Manhattan judge and explain that you're already on trial in the Bronx.  You'll see Judge Smith Monday."

The judge winked at me before I left.  I took it to mean "well-played."  I didn't stop to speak to the defense attorney.

It was going to be a long weekend too.

I went back up to the grand jury where I found my victim waiting for me.  11:00 - only two hours late.  Still no eyewitness though.

The police called my phone and said they knew where the witness was and they would be bringing him in.  I decided to put the victim into the grand jury and then see if the police showed.

I waited in line to get into my original grand jury.  I used to be first in line.  The grand jury coordinators promise to sneak my suffering victim in before lunch.  These were the special privileges getting shot in the head grants you.

The grand jury was made up of three rows of stadium seating.  It was a private chamber.  The only people allowed in are attorneys, grand jurors, stenographers, and witnesses one at a time.  Defendants, defense attorneys, and judges are not allowed to view anyone's testimony.

It was 12:55 before we get in.  The grand jurors were grumbling and checking their watches.  This was their second week, so they knew the drill.  1:00 was lunch time, but cases routinely went over.  We finished testimony at 1:10.

The grand jury broke for lunch and I checked my messages.  The attorney for my shooting defendant in grand jury called and verified his client was definitely testifying after lunch.