Should I Stay or Should I Go?

Sorry for the lack of posts this week. My first two jobs have been keeping me busy (family and being an actual ADA). Add a trial starting on the 28th and it's the perfect storm to keep me from blogging.

Today's post is an extension from last week's about the Penn State scandal and the duty to act.

I addressed when it is a crime for a citizen not to take action and also individuals who must report a crime due to their occupation. There is one additional area of the law that should be addressed in connection with this.

Car accidents. Wait, you say? Does this deserve a separate post? Isn't it enough to say that a person must stop after an accident?

Maybe, but what constitutes an accident? What if I hit a deer? A dog? A car? A person? What does stopping mean?

In addressing this, it is my duty to tell you all to stop whenever you are involved in any accident. Severe punishments exist for those who do not comply and keep driving. As we see every day, every driver is eventually caught.

There are many things I enjoy about blogging, but one of them is how much I learn when researching these posts. Even in areas I am very knowledgeable in, I always learn something new.

Today, I learned that a driver must stop when they strike a dog, cat, horse, or cattle and attempt to find the owner so that the animal can be helped. It is a violation (lowest level offense) punishable by a fine if the driver doesn't. As for the deer? They are not so lucky.

As you can imagine, if a driver must stop for certain animals, he must stop after a striking a car or a person. Not stopping after an accident that causes property damage? Up to fifteen days in jail.

Not stopping after an accident that injures a person? Up to a 90 days in jail. A person is seriously injured? Up to four years in jail. A person dies? Up to seven years in jail.

These are pretty serious penalties based on the mere fact a person does not stop. There are three reasons: 1) If the driver involved doesn't stop, then the injured person may not receive necessary treatment that could save their life or prevent further injuries. What if it is late at night on a deserted road? 2) There's no way to make an insurance claim for property damage if the other driver leaves, and 3) everyone assumes the driver was drunk and didn't have insurance. Why else would he take off?

So what does stopping mean? I prosecuted a case in New York City where a driver exited a highway and struck a bicyclist who was crossing at a bike path on the exit ramp. The driver stopped her car, looked at the bicyclist, saw someone helping her and took off. She drove to her house. Thankfully, the car behind her followed and gave the police her license plate. She stopped, didn't she?

She stopped. That's not enough. A driver must stop, provide their name and contact information, and their insurance information. This woman panicked and drove away while the bicyclist sustained numerous fractures to her lower half. The police found her an hour later and she hadn't even called to report it. For leaving an accident that wasn't even her fault, the driver received a felony conviction.

What if the driver hits a parked car and the owner of the car isn't present? Report it to the police station to fulfill your duty.

What about a passenger who tells a driver to drive away after hitting a person? Are they culpable? In a novel case in upstate New York, this passenger was found guilty of criminal solicitation for doing just that. The case was sent back to the town court on an unrelated issue. The defendant plead guilty to the misdemeanor. Both the driver and passenger were punished.

Are there any other areas you think the citizens should be bound to act?

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How to Become an Assistant District Attorney

I remember the days as a law student and an intern. Working at a firm as a law clerk, attending firm functions hoping one of the lawyer's took a shine to me and offered me a job. Praying someone gave me a job, any job. I have all these loans after all!

And I made a promise when I took my first job, that I would offer as much help as possible to any student or intern who sought it. It is a dark road that no one understands.  There was not much assistance when I tried to figure out what jobs to apply for and ultimately accept (I had two offers!).

As an aid to those in law school or those making the switch to criminal law, I thought I'd provide a little guidance on how to become an ADA:

1) Seek out the areas you want to live in and then apply to all the DA's offices around there. Do not apply to just one in the hopes they hire you. New York City DA's offices hire 40-50 new attorneys a year out of thousands of applications. Smaller counties may not even hire one a year out of thousands of applications.

2) Study some criminal law. I've conducted interviews and read many resumes. The ones that stand out show some interest in criminal law. It is a tough legal economy causing increased applications to every DA's office. Applicants who normally would seek out law firms and never studied any criminal law are now applying. No one begrudges a law student applying to many places to land a job, but you should show at least some interest in the position.

3) Mock trial, trial team, and trial technique classes are important. While these are structured (read - fictional and rehearsed) settings it demonstrates you like to be in a courtroom.

4) Intern at a DA's office. We remember the interns who completed projects on time, asked for feedback, and played on the softball team.

5) How important are grades? Thankfully, not critically important as long as you distinguish yourself in some other way. I was hired in a New York City office as an average student (mostly Bs with some As thrown in). I didn't win any awards for my scholarship. My resume and experience (mock trial, internship, criminal law job during law school) got me in the door. I showed them in the interview how well I relate to people. It's what the job's about after all.

6) Do you need to know someone? I didn't, but it can't hurt.  It doesn't always help and it's usually overdone. I just read a cover letter today that dropped ten names, declared the applicant's political party, and violated every piece of the next rule.

7) Resume and cover letter - Use clear, concise, grammatically correct, and active sentences. Does this need to be said?

8) Research the office's structure, programs, and statistics before the interview so you can use the information during the interview.

9) Send handwritten thank you notes. Yes, things like this still matter.

10) Don't be afraid to follow-up. Just not too soon. Give it a week after your interview at least. Remember in small counties there are at least twenty people interviewed for every position. In major cities, that number swells to a thousand. Give them time to conduct the interviews, but not too much time so they forget you.

There are a thousand more items to discuss, but this is the nuts and bolts. Write a comment with a specific question andI I'll do my best to answer it. Or just send an email.

Check back later this week to see my journey to becoming an ADA and the qualities that make a successful ADA.

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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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