Now that's some good evidence for a DWI case, which probably helped convince the defendant to plead guilty. It's even better when we saw Mr. defendant walk into court for sentencing on his felony DWI wearing a different type of shoe on each foot with each one its own color. A gift from deceased settlers perhaps?
Saturday, September 17, 2011
On the French and Indian War, and other things
Another round in our Pro Se section. Our subject today claimed to have fought in the War of 1812 and the French and Indian War on the side of the Native Americans. These claims were made once the defendant was in custody on . . . you guessed it - DWI. His second one in ten years which makes it a felony. After failing the sobriety tests and the breathalyzer, Mr. defendant told the police about how he scalped many settlers during those wars.
Now that's some good evidence for a DWI case, which probably helped convince the defendant to plead guilty. It's even better when we saw Mr. defendant walk into court for sentencing on his felony DWI wearing a different type of shoe on each foot with each one its own color. A gift from deceased settlers perhaps?
Now that's some good evidence for a DWI case, which probably helped convince the defendant to plead guilty. It's even better when we saw Mr. defendant walk into court for sentencing on his felony DWI wearing a different type of shoe on each foot with each one its own color. A gift from deceased settlers perhaps?
Wednesday, September 14, 2011
Statistics and Animosity
Check out this article from the New York Post.
You'll remember in a previous blog post I talked about how a case moves from crime to trial. The New York Post article provides a good illustration of the path I discussed in action.
The article says that the Bronx District Attorney's Office (BXDA) threw out 17.3% of the 43,520 arrests from January 1 through July 22 of this year. New York City's system is a different beast from the rest of the state so please allow me to explain a little. I've been a prosecutor in NYC and outside of it and am speaking from experience in both systems.
In NYC, the police make an arrest and the case is required to be brought to the BXDA's Office for processing. This is unlike the rest of New York State where the police make an arrest and do all the processing without notifying the District Attorney's Office.
At the BXDA, ADA's are waiting in the complaint room to draft the charges and file the paperwork. The ADA's speak with police officers and any witnesses the police bring. Victims are usually required to come to the complaint room and speak directly to an ADA before a case will be drafted. There are exceptions of course in serious assault cases. A large number of cases that come through the complaint room are "victimless" crimes, where the police see illegal activity and make an arrest (drugs, DWI, weapons).
An ADA's job in the complaint room is to screen the case. We look for: 1) whether the police acted legally in securing evidence, 2) whether the victims are cooperative, 3) and whether we can prove the charges beyond a reasonable doubt, among other things.
The People decline to prosecute a case for a number of reasons - a search and seizure that violates a person's rights, a victim doesn't want to pursue the case, or there is simply not enough evidence yet. In many cases, drugs or another weapon are found on the ground and no one saw who put it there but the people standing by it are arrested. This is an example of a case with insufficient evidence of possession. Any case an ADA declines to prosecute is approved by a supervisor, a second pair of eyes.
The officer who fumed that the BXDA is "letting dangerous people back out on the street again and again, instead of making even the slightest effort to build a case against them" should think about the role of a police officer. ADA's routinely send officers back out on the streets after screening a case and before filing charges to gather additional evidence, find additional witnesses, or to conduct additional questioning of a defendant. The mentality should not be to arrest and charge first and investigate later. It should be to investigate first and then arrest.
An investigation obviously continues after the charges are filed and continues through trial. But that is generally subpoenas, search warrants, and gathering records. The brunt of the investigation should be done prior to an arrest.
The role of a District Attorney is to do justice. It is not to send a message to a certain person, prosecute bad guys with no evidence simply because we know they are bad, or to prosecute people where the evidence will be suppressed because the police acted illegally. Declining to prosecute a case is a difficult decision and I applaud the men and women who have the courage to get rid of a case before the legal system grinds a defendant into its slow-moving gears for a case that cannot be sustained.
I try not to monday morning quarterback police officers either (If any of you are reading I really do try). They are the ones on the street at midnight dealing with gun-toting drug dealers or walking into explosive domestic situations where both parties are drunk and wielding knives. They must make instantaneous decisions without the benefit of getting legal guidance. Mistakes are sometimes made in those split second moments and a judge with the benefit of hindsight can call an officer's action illegal. My goal is to instruct the cops the extra steps to take when the situation invariably comes up again.
You'll remember in a previous blog post I talked about how a case moves from crime to trial. The New York Post article provides a good illustration of the path I discussed in action.
The article says that the Bronx District Attorney's Office (BXDA) threw out 17.3% of the 43,520 arrests from January 1 through July 22 of this year. New York City's system is a different beast from the rest of the state so please allow me to explain a little. I've been a prosecutor in NYC and outside of it and am speaking from experience in both systems.
In NYC, the police make an arrest and the case is required to be brought to the BXDA's Office for processing. This is unlike the rest of New York State where the police make an arrest and do all the processing without notifying the District Attorney's Office.
At the BXDA, ADA's are waiting in the complaint room to draft the charges and file the paperwork. The ADA's speak with police officers and any witnesses the police bring. Victims are usually required to come to the complaint room and speak directly to an ADA before a case will be drafted. There are exceptions of course in serious assault cases. A large number of cases that come through the complaint room are "victimless" crimes, where the police see illegal activity and make an arrest (drugs, DWI, weapons).
An ADA's job in the complaint room is to screen the case. We look for: 1) whether the police acted legally in securing evidence, 2) whether the victims are cooperative, 3) and whether we can prove the charges beyond a reasonable doubt, among other things.
The People decline to prosecute a case for a number of reasons - a search and seizure that violates a person's rights, a victim doesn't want to pursue the case, or there is simply not enough evidence yet. In many cases, drugs or another weapon are found on the ground and no one saw who put it there but the people standing by it are arrested. This is an example of a case with insufficient evidence of possession. Any case an ADA declines to prosecute is approved by a supervisor, a second pair of eyes.
The officer who fumed that the BXDA is "letting dangerous people back out on the street again and again, instead of making even the slightest effort to build a case against them" should think about the role of a police officer. ADA's routinely send officers back out on the streets after screening a case and before filing charges to gather additional evidence, find additional witnesses, or to conduct additional questioning of a defendant. The mentality should not be to arrest and charge first and investigate later. It should be to investigate first and then arrest.
An investigation obviously continues after the charges are filed and continues through trial. But that is generally subpoenas, search warrants, and gathering records. The brunt of the investigation should be done prior to an arrest.
The role of a District Attorney is to do justice. It is not to send a message to a certain person, prosecute bad guys with no evidence simply because we know they are bad, or to prosecute people where the evidence will be suppressed because the police acted illegally. Declining to prosecute a case is a difficult decision and I applaud the men and women who have the courage to get rid of a case before the legal system grinds a defendant into its slow-moving gears for a case that cannot be sustained.
I try not to monday morning quarterback police officers either (If any of you are reading I really do try). They are the ones on the street at midnight dealing with gun-toting drug dealers or walking into explosive domestic situations where both parties are drunk and wielding knives. They must make instantaneous decisions without the benefit of getting legal guidance. Mistakes are sometimes made in those split second moments and a judge with the benefit of hindsight can call an officer's action illegal. My goal is to instruct the cops the extra steps to take when the situation invariably comes up again.
Sunday, September 11, 2011
Confessions of a Facebook Stalker
Friend requests, posts, pictures, tags, and likes. Have you ever thought about how much personal information you are putting online without thinking you are doing so?
As I prosecutor, I love and hate facebook. I love it because my defendants (especially the juveniles) cannot help but post incriminating pictures of themselves or leave status updates about the crime committed. I hate it because my witnesses cannot help it either and defense attorneys are checking it just as much as I am.
Facebook plays a significant role in cross-examination. I have cross-examined a defendant who denied any gang affiliation by showing him tagged photos of him flashing gang signs or a defendant who denied knowing the victim until confronted with a photo of the two of them we recovered from the internet. How about the time the defendant denied dealing drugs or ever holding a gun? Turns out there was a photo of the defendant holding a gun, smoking a joint, and flashing hundreds online.
Now for why Facebook and its progeny scares me - our willingness to forego privacy. It starts simply enough, as reported by yahoo. A "friend" requests you. You accept thinking you know him or her. Suddenly, the "friend" has access to all your friends, who your family members are, your birthday, the area you live in, what you like, and social causes you endorse. Why not just leave your social security number too? What more does a person need?
It can happen many ways. Your friend asks you for a donation to a cause he now knows you support. Turns out the cause doesn't exist after you donate. Your friend could suggest an investment opportunity like the article suggests. Your friend could find your friends and family members who are susceptible to scams through you. What about your status update about leaving for vacation? Whoever you're connected to knows your house will be unoccupied for a week. There are a million different ways a criminal can use your information and we see them everyday in the headlines.
A few common sense tips:
1) Don't accept friend requests from people you don't know.
2) Don't post anything about an event, until it's already happened.
3) Keep your privacy settings as private as possible. Only allow friends to see your pages.
4) Teach your children about privacy and the dangers of the internet. Once it's posted, it's there forever. (Hope this blog never comes back to hurt me).
5) Don't invest any money without meeting someone face to face and getting the opinion of a certified professional.
6) In case you're wondering, I do have a Facebook account. I don't label any of my family members as such though and I suggest you follow that lead.
Does anyone have stories about their privacy invaded? What are some other tips for our readers they should know about maintaining privacy online?
As I prosecutor, I love and hate facebook. I love it because my defendants (especially the juveniles) cannot help but post incriminating pictures of themselves or leave status updates about the crime committed. I hate it because my witnesses cannot help it either and defense attorneys are checking it just as much as I am.
Facebook plays a significant role in cross-examination. I have cross-examined a defendant who denied any gang affiliation by showing him tagged photos of him flashing gang signs or a defendant who denied knowing the victim until confronted with a photo of the two of them we recovered from the internet. How about the time the defendant denied dealing drugs or ever holding a gun? Turns out there was a photo of the defendant holding a gun, smoking a joint, and flashing hundreds online.
Now for why Facebook and its progeny scares me - our willingness to forego privacy. It starts simply enough, as reported by yahoo. A "friend" requests you. You accept thinking you know him or her. Suddenly, the "friend" has access to all your friends, who your family members are, your birthday, the area you live in, what you like, and social causes you endorse. Why not just leave your social security number too? What more does a person need?
It can happen many ways. Your friend asks you for a donation to a cause he now knows you support. Turns out the cause doesn't exist after you donate. Your friend could suggest an investment opportunity like the article suggests. Your friend could find your friends and family members who are susceptible to scams through you. What about your status update about leaving for vacation? Whoever you're connected to knows your house will be unoccupied for a week. There are a million different ways a criminal can use your information and we see them everyday in the headlines.
A few common sense tips:
1) Don't accept friend requests from people you don't know.
2) Don't post anything about an event, until it's already happened.
3) Keep your privacy settings as private as possible. Only allow friends to see your pages.
4) Teach your children about privacy and the dangers of the internet. Once it's posted, it's there forever. (Hope this blog never comes back to hurt me).
5) Don't invest any money without meeting someone face to face and getting the opinion of a certified professional.
6) In case you're wondering, I do have a Facebook account. I don't label any of my family members as such though and I suggest you follow that lead.
Does anyone have stories about their privacy invaded? What are some other tips for our readers they should know about maintaining privacy online?
Thursday, September 8, 2011
Path of a Criminal Case
It is a complex legal system, especially in New York State. I hope to shed some light on how a case moves from arrest to trial.
1) Someone calls the police. This is probably the most important event. A single individual possesses the power to send hundreds of years of legal action in motion with just a phone call. The call usually consists of a description of the crime and a description of the suspect.
2) The police investigate. The police speak to the 911 caller, the victim, and any other eyewitnesses. They also begin to gather evidence related to the crime. Based on all this information, they attempt to arrest the individual responsible.
3) The arrest. The police arrest a suspect based on probable cause. This means that there is sufficient evidence to believe the suspect committed the crime. After the arrest, the police attempt to obtain a statement from the suspect and have the witnesses identify the suspect in a line-up or some other identification proceeding.
4) The police file charges. This begins the formal court proceedings and the defendant is brought in front of a judge and arraigned on a felony complaint based on the charges filed by the police. This is usually the first time the district attorney's office becomes involved in the proceedings.
5) The felony hearing. The district attorney's office must put witnesses on the stand to show the court credible evidence that the suspect committed the crime. This usually consists of the witnesses to the crime testifying in open court and identifying the defendant as the person who committed it. It is a procedural safeguard to ensure a person does not remain in jail for more than a few days without the court seeing some evidence against them.
6) Grand jury. If the court decides there is enough evidence to move forward, the case is held for action of the grand jury. This means the district attorney's office is required to present evidence to a grand jury. The grand jury is a secret proceeding and the grand jurors decide what crimes the defendant should be charged with based on advice from the district attorney's office. This usually varies widely from the initial crimes the police arrest the defendant on. The grand jury has the power to dismiss a case, ask for more evidence, or vote on any charge not submitted to them. Plea negotiations are taking place before the case is presented to a grand jury in an attempt to resolve it prior to an indictment.
7) The superior court arraignment. After a defendant is indicted by a grand jury, he is brought in front of a supreme court judge and arraigned on the criminal charges in the indictment.
8) Pre-trial hearings. The case is set down for pre-trial hearings. These hearings are held in front of a judge who determines whether the police acted appropriately in searching the defendant, obtaining a defendant's statement, or conducting an identification procedure, among other issues.
9) The trial. The case is tried in front of a jury. The prosecutor has the burden to prove the defendant guilty beyond a reasonable doubt of all the crimes charged in the indictment. If the jury is satisfied with the evidence, they can find the defendant guilty. If not, they can find the defendant not guilty.
10) The appeal. Every defendant is allowed an appeal for a conviction as a matter of right to the appellate division in New York State. Subsequent appeals to higher courts are discretionary.
A defendant can plead guilty at any stage of the proceeding after a felony hearing is held or waived. There is legal criteria surrounding the plea I will save for another post. Does this help you understand the court system better? What else would you like to know about it?
1) Someone calls the police. This is probably the most important event. A single individual possesses the power to send hundreds of years of legal action in motion with just a phone call. The call usually consists of a description of the crime and a description of the suspect.
2) The police investigate. The police speak to the 911 caller, the victim, and any other eyewitnesses. They also begin to gather evidence related to the crime. Based on all this information, they attempt to arrest the individual responsible.
3) The arrest. The police arrest a suspect based on probable cause. This means that there is sufficient evidence to believe the suspect committed the crime. After the arrest, the police attempt to obtain a statement from the suspect and have the witnesses identify the suspect in a line-up or some other identification proceeding.
4) The police file charges. This begins the formal court proceedings and the defendant is brought in front of a judge and arraigned on a felony complaint based on the charges filed by the police. This is usually the first time the district attorney's office becomes involved in the proceedings.
5) The felony hearing. The district attorney's office must put witnesses on the stand to show the court credible evidence that the suspect committed the crime. This usually consists of the witnesses to the crime testifying in open court and identifying the defendant as the person who committed it. It is a procedural safeguard to ensure a person does not remain in jail for more than a few days without the court seeing some evidence against them.
6) Grand jury. If the court decides there is enough evidence to move forward, the case is held for action of the grand jury. This means the district attorney's office is required to present evidence to a grand jury. The grand jury is a secret proceeding and the grand jurors decide what crimes the defendant should be charged with based on advice from the district attorney's office. This usually varies widely from the initial crimes the police arrest the defendant on. The grand jury has the power to dismiss a case, ask for more evidence, or vote on any charge not submitted to them. Plea negotiations are taking place before the case is presented to a grand jury in an attempt to resolve it prior to an indictment.
7) The superior court arraignment. After a defendant is indicted by a grand jury, he is brought in front of a supreme court judge and arraigned on the criminal charges in the indictment.
8) Pre-trial hearings. The case is set down for pre-trial hearings. These hearings are held in front of a judge who determines whether the police acted appropriately in searching the defendant, obtaining a defendant's statement, or conducting an identification procedure, among other issues.
9) The trial. The case is tried in front of a jury. The prosecutor has the burden to prove the defendant guilty beyond a reasonable doubt of all the crimes charged in the indictment. If the jury is satisfied with the evidence, they can find the defendant guilty. If not, they can find the defendant not guilty.
10) The appeal. Every defendant is allowed an appeal for a conviction as a matter of right to the appellate division in New York State. Subsequent appeals to higher courts are discretionary.
A defendant can plead guilty at any stage of the proceeding after a felony hearing is held or waived. There is legal criteria surrounding the plea I will save for another post. Does this help you understand the court system better? What else would you like to know about it?
Tuesday, September 6, 2011
Day in the life of an ADA
Thought I'd share a glimpse into a typical day for you. My day actually starts the day before when I compile a list of things that MUST get done the next day on my seventy or more files.
I get to work between 8 and 8:30 each day (more on the 8:30 side in the summer). By 8:45, the list is thrown out the window as my phone is ringing off the hook with dire "emergencies".
The hour between the time I get to work and 9:30 court never seems enough time to cross one item off the list because of the phone.
At 9:30, I show up to court and wait. And wait. And wait. Wait for the judge, the defense attorney, and the defendant. Then when everyone’s there, we wait while all the other cases that had all the parties appear on time are called first. Whether I go to city court for a felony hearing, supreme court for a sentencing or pre-trial conference, or the grand jury to indict a case, I wait. It is an ADA’s specialty. As you imagine, the to-do list grows as messages pile up on my voicemail.
11:30 or so I am back at my office. I’m really going to tackle that list, well just after I return the five messages I have on my voicemail and the dozen emails. Lunchtime, when I take one, means I go to the gym or get some writing done.
2:00 court. More waiting (see above). 3:30 or so and I’m back at my office. Now to that list. What? More messages and emails. Alright 4:30. The list has grown to twice the size. I’ll spend the next hour or so trying to get as much of that list done as possible – motions, calls to victims, subpoenas for trial, scheduling witness conferences. I may even get to do a little prep work for upcoming trials.
I think I just described a day in the life of a criminal defense attorney too.
End of the day and time for a new list. Standard equation to figure out items to do the next day – take the 75% of things I didn’t get done today and double it.
Repeat for five days. Is there ever a day when the list gets done? No, you just throw it away and start fresh at the beginning of a week.
I get to work between 8 and 8:30 each day (more on the 8:30 side in the summer). By 8:45, the list is thrown out the window as my phone is ringing off the hook with dire "emergencies".
The hour between the time I get to work and 9:30 court never seems enough time to cross one item off the list because of the phone.
At 9:30, I show up to court and wait. And wait. And wait. Wait for the judge, the defense attorney, and the defendant. Then when everyone’s there, we wait while all the other cases that had all the parties appear on time are called first. Whether I go to city court for a felony hearing, supreme court for a sentencing or pre-trial conference, or the grand jury to indict a case, I wait. It is an ADA’s specialty. As you imagine, the to-do list grows as messages pile up on my voicemail.
11:30 or so I am back at my office. I’m really going to tackle that list, well just after I return the five messages I have on my voicemail and the dozen emails. Lunchtime, when I take one, means I go to the gym or get some writing done.
2:00 court. More waiting (see above). 3:30 or so and I’m back at my office. Now to that list. What? More messages and emails. Alright 4:30. The list has grown to twice the size. I’ll spend the next hour or so trying to get as much of that list done as possible – motions, calls to victims, subpoenas for trial, scheduling witness conferences. I may even get to do a little prep work for upcoming trials.
I think I just described a day in the life of a criminal defense attorney too.
End of the day and time for a new list. Standard equation to figure out items to do the next day – take the 75% of things I didn’t get done today and double it.
Repeat for five days. Is there ever a day when the list gets done? No, you just throw it away and start fresh at the beginning of a week.
Saturday, September 3, 2011
Pro Se
Pro Se means a person who represents himself or herself. I will hopefully provide some interesting and amusing courtroom tales under this category. Maybe this will turn into Pro Se Friday?
It's a robbery case and the witnesses are testifying at the felony hearing. There are two defendants caught and a third one we are still looking for. A felony hearing is a hearing to show the court there is probable cause to believe the defendants committed a crime so the case can move forward to the grand jury stage.
Witness 1 is on the stand during the felony hearing:
ADA: "Do you see any of the people that robbed you here in court today?"
Witness 1: "Yes."
ADA: "Please point to the person or persons and identify an article of clothing they are wearing for the court."
Witness 1: "There in the blue shirt" Pointing to one of the defendants.
ADA: "Anyone else?" Hoping they identify the second defendant.
Witness 1: "Yes." You could hear the relief in the ADA's sigh. "In the back row in the blue and white striped shirt." Pointing into the audience. Now you could hear the terror in the ADA's sigh as he tried to figure out what to do.
Witness 2 is on the stand who was not in contact with witness 1 during or after witness 1's testimony. The ADA just asked this witness to identify the defendants.
Witness 2: "In front of me in the blue shirt and the one next to him in the red shirt." ADA is very relieved that both defendants were identified when witness continues. "And back there in the blue and white striped shirt." Pointing to the same man in the audience.
Turns out our last robber came to support his buddies. I thought this only happened on television. I asked myself why he didn't just leave after the first witness pointed to him which everyone thought was just a mistake.
It's a robbery case and the witnesses are testifying at the felony hearing. There are two defendants caught and a third one we are still looking for. A felony hearing is a hearing to show the court there is probable cause to believe the defendants committed a crime so the case can move forward to the grand jury stage.
Witness 1 is on the stand during the felony hearing:
ADA: "Do you see any of the people that robbed you here in court today?"
Witness 1: "Yes."
ADA: "Please point to the person or persons and identify an article of clothing they are wearing for the court."
Witness 1: "There in the blue shirt" Pointing to one of the defendants.
ADA: "Anyone else?" Hoping they identify the second defendant.
Witness 1: "Yes." You could hear the relief in the ADA's sigh. "In the back row in the blue and white striped shirt." Pointing into the audience. Now you could hear the terror in the ADA's sigh as he tried to figure out what to do.
Witness 2 is on the stand who was not in contact with witness 1 during or after witness 1's testimony. The ADA just asked this witness to identify the defendants.
Witness 2: "In front of me in the blue shirt and the one next to him in the red shirt." ADA is very relieved that both defendants were identified when witness continues. "And back there in the blue and white striped shirt." Pointing to the same man in the audience.
Turns out our last robber came to support his buddies. I thought this only happened on television. I asked myself why he didn't just leave after the first witness pointed to him which everyone thought was just a mistake.
Subscribe to:
Posts (Atom)