It's a Conspiracy

What makes four guys sitting around a table drinking beers and talking about a robbery a crime?  It's in the planning.

We all do it, probably without even knowing it most days.  We'll stand in a bank line and look at the cameras and wonder if they would catch us if we walked out with a hundred grand.  Or maybe you're working the cash register at a store and occasionally think about slipping a bill into your pocket?  When does thinking about a crime turn into committing a crime.

There are three requirements to prove a conspiracy:

1) Two or more people,
2) An mutual agreement to commit a crime, and
3) An overt act in furtherance of the conspiracy.

The first element is simple.  It takes at least two to make it a conspiracy.  Otherwise, if the person comes close enough to committing the crime, it is an attempted crime.

The agreement is trickier.  What exactly is an agreement?  Does it have to be in writing?  Oral?  What if one of the suspects cannot be prosecuted for the crime because they are mentally challenged?  Or an undercover officer?

The agreement can be in any form - oral, written, or otherwise.  To prosecute these cases, we always seek some corroboration of the agreement like a letter written between the suspects or, where one is cooperating, a recorded conversation.  A person can still be guilty of a conspiracy if they commit the crime with someone who cannot be prosecuted for it.  An example to demonstrate - The suspect wants to have her husband killed for the life insurance.  She doesn't want to do it because then she won't get paid.  She seeks someone else.  The police get wind of it and send an undercover officer to speak with the suspect.  The undercover officer wears a wire and records the conversation.  Obviously, the undercover will not be prosecuted for the crime, and, therefore, the conspiracy charge will only prosecute one person.  The law is clear that the suspect can still be charged with conspiracy even when the other parties cannot.

What constitutes an overt act?  This is what moves it from bragging stages to crime.  One of the parties who agreed to the crime must take at least one step towards its completion.  Examples - buying guns, making a down payment to a contract killer, renting a getaway car, casing the location of a robbery.  Any act that moves the conspiracy closer to completion will do.  As a prosecutor, it is difficult to make the call when there are enough overt acts to arrest, but before the completion of a crime.  What constitutes probable cause does not always persuade a jury that the group was serious about committing the crime.  The overt act element is the line between Minority Report and protecting society.

Once all three elements exist, we can make an arrest.  The only viable defense to the conspiracy must happen before the arrest.  One of the participants must affirmatively withdraw from the conspiracy before the crime.  This means they tell the other participants they are out and then they tell law enforcement.  That is usually the way law enforcement finds out about the crimes.  Participants become informants when they realize that the planning between friends is quickly becoming a criminal reality.

The federal government charges conspiracy much more than state prosecutors do.  It can be charged in any case where co-defendants committed a crime, in addition to the completed crime charges.  State prosecutors usually only charge conspiracy where there is an undercover investigation and an arrest before a crime occurs.  They are some of the most satisfying cases because you are stopping the defendant before anyone is hurt.  We don't get to do that often.   

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Veterans and Specialties

I was at a store on Saturday with my wife and niece.  We were walking towards the cash register when we passed a gray-haired man in a black cowboy hat with a Vietnam Veterans patch sewn on it.  A mother and child in front of us stopped abruptly and ran behind us.  The boy, about eight I'd guess, ran up to the man and said, "excuse me."  The man stopped without a word.  The boy said, "thank you for your service.  My grandpa and great grandpa served.  I appreciate it."

They shook hands and the smile from the man's face could be seen from outside.

The best way I know to say thank you is through the written word.  These words, however, will fall short of the deep appreciation I actually feel.  For hundreds of years, men and women have agreed to put their country before themselves and battle for those of us that either don't want to or cannot.  The soldiers do not care who we are or what we believe in, so much as what America stands for.  The selfless tasks performed by soldiers every day is a stark reminder that what is truly important in life is often unheralded.  Thank you to all those who have ever served on my behalf, overseas or at home.  You are the ones who have made my choices in life possible.  It hardly seems right that I receive a day off in honor of other people's sacrifices.  Shouldn't I have to volunteer or something like that today?

Now for the legal aspect of the post.  Soldiers face difficult tasks when returning to the life of a citizen.  Some have been in war zones and have a difficult time coping.  As prosecutors, we see the effects daily.  We handle many cases where veterans are arrested for drugs or violence.  Then, we face the difficult task of deciding how to handle these cases.  Do they receive special treatment because of the soldier's past?  Should they be treated like any other person in the system?

New specialty courts appear every year.  In my county, there is a drug court, DWI court, youth court, mental health court and now a veterans court.  The idea behind these courts is that the cases sent there require specialized attention and services necessitating different treatment.  If you don't fall into one of these categories, then you don't get the special services the courts offer.  The motivation behind specialty courts is admirable, but is it fair?  Should different groups of citizens be treated and offered separate services?  Should the courts even be involved in this?

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An Unusual Thank You

One problem with the court system is its inefficiency.  Myself and other lawyers (not to mention defendants) sit in court for hours waiting for their case to be called and wasting time that could be spent on other projects.  It's been a problem for generations of lawyers and has yet to be solved.

But sometimes the waiting allows you to find that rare gem that really makes this job worth it.  It wasn't my case; I was merely a spectator.  But it went something like this.

The defendant stood next to her assigned attorney behind a long, dark wooden table to my left.  The prosecutor stood at the podium that separated two tables.  A probation officer and representative from the DWI court program stood behind the table to my right.  The defendant was being sentenced for a felony DWI - at least two DWIs in ten years.

The DWI court is a referral service for people with alcohol problems.  They receive individual and group counseling, random drug tests, and weekly court dates to monitor progress.  The representative announced how well the defendant was doing in the program and the probation officer concurred.  

The defendant's attorney said a few nice words on her behalf and then it was the defendant's turn to speak.  There are three types of statements a defendant usually says at sentencing: 1) nothing, 2) "I just want to apologize to my victims", or 3) how they no longer agree with the plea.  This female defendant turned to the people on her and my right.

"I just want to say thank you, your Honor.  Thank you for allowing me the opportunity to work with this team.  It is a wonderful team of professionals, and that's what they are professionals.  The prosecutor, the DWI program and probation officer.  I appreciate all of their efforts and thank them immensely for their help in getting me help.  I love my group and look forward to seeing all of them every week.  Thank you."

I rarely hear anyone thanking their attorneys for the work, let alone the staff who are helping to treat an illness.  And this might be the first time anyone has thanked a prosecutor.  We can now add a fourth type of statement.

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Scantron, Touch Screens, and Pot

Anyone remember these forms?  It was called a scantron sheet in elementary school and high school.  I remember practicing to completely fill in the bubbles so that the computer could read it properly.

And apparently not much as changed.  As I signed my name to vote, I was handed a manila folder with a sheet of paper inside.  I took it to a long, wooden table, containing three-sided cardboard dividers  that would make Jeopardy! cringe.

It seems that we have inched backward from the polling machines with the curtains and switches.  Isn't John King on CNN touching a television screen and reading real time votes being counted?  Yet, I'm still using a scantron form to vote for president?  There were stories that Florida precincts ran out of paper ballots and had to photocopy more.  What are we doing?  Why can't we figure this out and get into at least the late twentieth century?

In other news last night, two states have voted to legalize recreational marijuana use.  Colorado and Washington become the first states in the union to legalize it.  We will see what the future holds and whether this is a trend or isolated state issues.

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Election Day to a Public Employee

Most New York State and County employees are given a gift the first Tuesday following the first Monday of every November (can you tell that law was written by lawyers?).  They are given a day to reflect on the year that has past and the full eight hours that they otherwise would be working can be spent doing anything they desire.

Yes, Election Day is my favorite work day of the year because, well, it's not a work day at all.  It's a random Tuesday off in November.  I understand why the day off began.  It stems from the days when all the government jobs were patronage jobs and all the government employees were given the day off to go work for the person who gave them the job - ferry voters back and forth, stand outside polling places, etc.

I'm not saying we should have the day off, only that I appreciate it.  Not even teachers get this day off.  

But tomorrow does not mean a holiday for me this year.  I'm involved in two large investigations which both have big days tomorrow.  So I will be at the office for a period of time fielding phone calls from law enforcement and helping them on the legal end.  I assure you, I will not be there the full day though.

I get many comments on the blog and emails concerned with prosecutors and the workings of government and the court system.  I post them all and respond to all the emails so long as they are in the realm of an honest discourse.  America is an amazing place because we all have the right to take an opinion and express it to anyone.  I hope all my readers take advantage of their right to vote and their ability to say the direction they want their country, state, and county headed tomorrow.  Don't like the judge?  In New York, most are elected so vote for the other one.  Same for the President on down to the Town Supervisor.  This is our chance to do something about whatever problems exist.

It is a partisan world, where everyone has instant access to a blog, twitter, or Facebook, and can voice their opinions on any topic immediately.  Are people becoming more entrenched in their opinions and more unwilling to compromise or do we just see more of it because of the proliferation of social media? I check my Facebook page and it reads like a roll of DNC and RNC talking points.  I'm all for the expression of political views, but hopefully we can move everyone past toeing the party line and towards making decisions based on the good of the citizens who voted them in office.  

So vote tomorrow.  I will after my half day of work.

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To Be a Lawyer?

This week, CNN posted an article discussing the top 100 jobs in the coming 10 years.  The criteria seem to be salary, market growth, personal satisfaction, stress level, benefit to society, and flexibility.

The winner?  Biomedical Engineering.  A lawyer was not on the list, which was made up mostly of science, computer, research, and health care jobs.  This is another factor to weigh for those considering law school.  There is a saturated lawyer market, stagnant salaries, and limited growth right now.

Also interesting, there were no public servant jobs, like teaching, on the list.  Since I am both a lawyer and public servant things do not bode well for me apparently.

Check out the article here. 

More about this topic:

Be a Student of Loans
Should I Go to Law School?
To Go or Not to Go

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