Joe Paterno and the Duty to Act

In the wake of the sad news coming out of the sexual abuse scandal at Penn State, it seemed time to address when not acting can be a crime. This is a difficult topic because it is usually brought up in the form of a victim or his family wondering why someone didn't aid the victim.

Criminal statutes are in place to punish those who act outside of society's guidelines. They are generally unhelpful in the situation when a person chooses not to act because there are only few laws requiring people to act in a given situation.

This is different from any moral obligation a person may feel. But the law does not allow for prosecution of a person who watches another person drown in the swimming pool without helping or a hundred different situations. Most of the time, the public's moral outrage cannot translate into criminal charges.

There are exceptions. In Vermont and Minnesota persons at an emergency scene have a duty to aid others if there is no danger to themselves. If not, they are faced with fines or jail. The statutes also limit the ability of the injured party to sue the good samaritan who renders aid. Many states have taken this step to limit liabilities for people trying to help as we've all heard horror stories about the samaritan getting sued by the victim.

Some people have a duty to act solely based on their occupation. In New York, teachers, social workers, prosecutors, police officers, doctors, nurses, and others have a duty to report suspected child abuse or neglect to the proper authorities. Failure to report is a misdemeanor punishable by up to one year in jail.

What about a parent who neglects their child so much to the point that the child starves to death? A doctor in a roadside accident who does not acknowledge his training and does not offer assistance? EMTs on their lunch break choosing not to help a pregnant woman having a seizure?

When a parent or legal guardian fails to control a child and the child becomes abused or delinquent as a result, the parent or guardian can be charged with a misdemeanor called "endangering the welfare of a child" or a felony if they abandon the child.

In certain situations, a person's inaction can be considered criminally negligent, but these cases are only prosecuted if a person dies, and only if the inaction is so egregious that it was a direct cause of a person's death. You can imagine how difficult these cases are to prosecute. Otherwise, there is no duty to act in New York.

This is different than civil liability. A person may get sued for inaction, but this isn't a blog about civil law.

So did Joe Paterno or his superiors have a duty to act? Did the graduate assistant have a duty to stop the abuse when he saw it? In looking at Pennsylvania law, it appears the school officials had a duty to report the abuse within 48 hours of it occurring. Also, as I understand, the college never reported these crimes as part of their required criminal activity report.

As for Joe Paterno, it would seem the question is whether he is a school administrator or teacher under Pennsylvania law. The graduate assistant doesn't appear to have a legal duty to do anything.

So, as in all legal questions, whether you have to act or not depends on who you are, where you are, and the situation. We should all remember to keep the victims in our thoughts and prayers. They should be the focus of this case.

My prediction is that criminal charges are not done and a major civil suit is just beginning. What do you think? Should more people be held accountable for their failure to act? What about the off-duty EMTs in the article above?

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The Power of Testimony

Over the summer in Seattle, a gripping trial occurred. The defendant, Isaiah Kalebu raped two women, murdered one, and attempted to murder the second. He claimed God made him do it. There are few people who put into words the difficulty of testifying in a sexual abuse trial, and also the power of facing your attacker, better than the surviving victim did. Normally, victims of sexual abuse are not identified, but Jennifer Hopper put herself in the public eye by writing an article about her experience.

Please read this article.

Good luck Jennifer.

As for Kalebu, he got life without parole.

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Who Decides the Sentence?

So who makes the ultimate determination at sentencing? How much say does the ADA have? What about the victim? The judge?

As it is with all legal questions - it depends.

There are different stages of a proceeding and all have different rules. Find a guide to these stages here.

1) Pre-indictment

Prior to a grand jury indicting a defendant, a defendant can only plead guilty with the consent of the DA's office. If we consent to a guilty plea to a reduced charge prior to indictment, we can also insist on the defendant's sentence or leave it up to the judge.

If the defendant doesn't like our conditions, we do not have to allow the plea. Also, the court does not have to accept the plea if they disagree with our sentence. If it remains open, that means the judge decides what the ultimate sentence is. The advantage of pre-indictment pleas for a defendant is their is an ability to control which judge accepts the plea and will impose sentence.

2) Post-indictment

A defendant can plead guilty at any time to all the charges once he is indicted. If this happens, the judge has the sole discretion in sentencing.

If we offer the defendant a plea to a lesser charge following the indictment, we can attach sentencing conditions to the plea or leave it open as described above.

3) Guilty Verdict

Following a guilty verdict after trial, the judge is the sole decider of the defendant's fate. We can no longer attach any conditions.

In any scenario, the victim is allowed to address the court and let the judge know their wishes. A victim can speak in open court or submit a letter. How much impact that has on sentence is left up to each individual judge. In the majority of my cases, victims rarely want to speak at sentencing. When they do, it usually has a strong impact on the judge's decision.

The DA's office, defense attorney, and defendant also have the opportunity to speak, if they wish and address any topics related to sentencing.

An interesting note - the district attorney's office does not need the victim's consent to offer a reduced plea. It is part of our discretion. In practice, my office always discusses this situation with any victim and seeks their opinion.

Do you think a victim should have more control over what happens? Is it fair to leave it up to one judge as opposed to a panel? What are the ramifications of allowing the prosecutor and defense attorney to select the judge who accepts a pre-indictment plea?

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Day in the Life of an ADA (Vacation Edition)

After some fun in the sun, I'm back and ready to roll. Hope you enjoyed some of the recommended reading. I know I need to catch up on a lot of it.

This is another installment in the day of an ADA series. Today we look at an ADA returning on his first day from vacation. Similarities to any ADA are entirely coincidental.

To do so, we must look at the days leading up to vacation though. Monday, Tuesday, and Wednesday of last week finds our fictional ADA in the office from about 7:30 a.m. through 7:30 p.m. preparing files, sending out letters to witnesses, organizing meetings, and doing his best to avoid explosions of case bombs in his absence. He'd like to thank some wonderful ADA's who agreed to cover some cases in his absence!

Now for the return to the office:

Voicemails waiting - 13 (much less than expected)
Emails waiting - 80 (much more than expected)
New files waiting - 6 (about what I expected)
Number of witnesses arrested - 1
Number of current defendants who picked up new cases - 3

The ADA arrives early and checks the schedule for the day. He usually prepares the day before, but was unable to. Three cases on the morning calendar and a pre-trial hearing at 11:00. The stack of mail, messages, and new files must wait.

Court from 9:30. One defendant did not arrive - bench warrant. One did and pled guilty. Officers arrived at 10:30 for a 10:00 meeting. They are here for the hearing at 11:00, which was called at 12:15. The defendant in that case agrees to plead guilty. Not a bad morning.

No lunch to speak of due to the amount of work waiting and that there is a case in court at 1:45. 1:45 case is called at 2:30 and gets adjourned.

Back to the office to check nine more messages and ten more emails that came in today. Add them to the list. Field phone calls from various officers and witnesses while trying to clean off the desk proves to be an impossible task.

How did 5:00 arrive so soon? 5:30 follows and his brain is still on vacation. He'll try again tomorrow.

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International Crime and Congratulations

I know it's only been two months, but Pros. Dis. is taking a much needed hiatus for the next week to investigate crime in international waters. A boat, sun, and some drinks may be involved.

Did I give away too much? Check out this post about internet stalking and you tell me.

In my absence, my fellow prosecutors and bloggers will carry on. Check them out and be sure to come on back next week for new discretions. I will be refreshed and so will the posts.

D.A. Confidential - He's giving a fantastic series of a true crime murder investigation right now.
Sarena Strauss - Former prosecutor and author of Bronx D.A. gives her insight into current events, child abuse, child safety, and sex crimes among other topics
Matt Mangino - Former top prosecutor in a Pennsylvania county provides daily analysis of current events (where does he find the time?)
Crim Law - Virginia prosecutor who is now a primary source for Wikipedia
Lisa Regan - frequent contributor here and author blogging about her journey into publication.

A special note of congratulations to two prosecutors in Buffalo, New York. Prosecutors Jim Bargnesi and David Heraty did a spectacular job in convicting a defendant of murder in the second degree.

What made this case interesting is that it was a retrial of a conviction in 2007 where a jury found the defendant guilty of murder in the first degree. The Court of Appeals (highest court in NY) reversed the conviction and sent it back because it deemed the defendant's confession was obtained illegally. At the second trial, the co-defendant, who testified against the defendant in the first trial, refused to testify. The court allowed Jim and Dave to use the testimony of the co-defendant from the first trial during the retrial due to a neat little exception in the hearsay rules.

Those prosecutors were left without a confession and with the only identification of the defendant during the crime from a 2007 transcript and still obtained a conviction (Don't worry there was some other evidence).

Well done! Interested in the difference between murder 1 and 2 in NY? Look at this prior post.

So if this doesn't keep you busy in my absence, feel free to comment and provide some topics you would like to know more about. Questions you always wanted to ask. Anything you want. Email or comment. Talk to you soon.

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Crime Scene Reality

It was a moment of weakness. I'm here to confess. I probably could have avoided it, but it felt so good.

For about five minutes.

C.S.I. played on my television screen on Thursday night. For most people, this is a time to relax and unwind and let some sensational events sweep you away for one hour.

For me, it's a time of stress I try to avoid. My wife had the television tuned to the show and I figured an hour relaxing sounded great. I should have known better.

Shows like this leave an indelible imprint on the viewer whose only connection to police work is these shows. The viewers are citizens. These citizens become jurors. I meet the jurors in the courtroom and have to battle against their preconceived notions of what type of evidence my case should have. I also have to battle against their desire to interpret evidence based on what they've seen actors do on television.

So how is C.S.I. different from the reality of police work? Let's take the episode I just watched where a man was recently released from jail for manslaughter. He finds his daughter has taken up with some gang members and allegedly kills two of them to exact revenge. He ends up dead himself, until medical personnel bring him back from the dead after being shot in the head. He then hijacks a medical helicopter to Mexico.

Sounds like just a normal day at the office. Here are a few differences:

1) Pristine crime scenes don't exist. In the show, each crime scene is manicured awaiting C.S.I. detectives arrival. Think about a 911 call. Shots fired in a house. Officers respond to the house and enter. They search for injured parties, possible suspects, and are making sure no one takes a shot at them. Once the sweep is performed and the area is secure, officers then look for evidence of a crime. You can imagine the condition of a crime scene once people have fought, someone was hurt, shots were fired, and now officers have walked through it.

2) What you see is not what you get. A C.S.I. detective on the show is actually a combination of at least four different people - the first responding officer, the lead case detective, the crime scene personnel who collect the evidence, and the scientist who analyzes it. These are four distinct jobs done by four different people, each requiring specialized skill. You would never see the scientist who analyzes the DNA also interviewing the suspect. Or the officer whose only training was the police academy looking through a microscope for hairs. DNA comparisons and autopsies are conducted by scientists and doctors with advanced degrees.

3) It is difficult to obtain a DNA sample from an item. If we do, it is weeks after the crime happened. Then it takes weeks to compare the DNA obtained from the evidence to a person's known DNA sample to determine if it is a match. Also, there is no national databank with every person's DNA on file. If there is DNA on a piece of evidence, we won't know whose it is unless we already have a suspect's DNA. If the person was never convicted of a crime or is unknown, then we will not have a match. On the show, they had a DNA match to a pool of blood within minutes.

4) The crime scene detectives are never the first officers on a scene. They get called once an officer or supervisor determines there is evidence that needs collection and processing.

5) Some of the technology they use doesn't exist and if it does, local law enforcement doesn't have access to it. Video enhancements so accurate that a video taken from one thousand feet away can be enhanced for a clear view of a suspects face? A hologram machine that recreates a skull based on a tiny fragment of bone? Even some of the technology that does exist is too expensive for police department budgets.

Maybe I should just enjoy these shows for their entertainment value. The producers are looking for entertaining television after all, not a police procedural manual. No matter my intent when I start to watch them, I find myself correcting mistakes and complaining about techniques. This is probably the reason my wife only watches those shows when I'm not around.

So does C.S.I. really affect a jury?

Despite my personal feelings on C.S.I. and others, I'd argue that they aren't the main reason that jurors have heightened expectations for evidence in a case. We can just look to the phones people carry around. They can call, email, text, navigate, speak different languages, pay for items, and play music. The more sophisticated a person's technology, the increased scientific testimony they will expect. A person thinks that if they have all of this technology in the palm of their hand, the government must have incredibly advanced instruments.

It's a reality all attorneys are dealing with.

As attorneys, how do you deal with juror's expectations regarding evidence? As potential jurors, what kind of evidence are you expecting to see?

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