Monday, July 20, 2015

The Jail House Snitch

There is no lower form of testimony, of evidence. Yet, it is one of the most prevalent kinds of evidence in criminal cases. Police rely on jail house informants to make arrests, prosecutors rely on the evidence to obtain convictions, and appellate courts routinely uphold convictions when jail house informants testify against the defendant.

Even though this type of testimony should be viewed through the most critical lens, it is still relevant and admissible at trial.

What is a jail house informant? An incarcerated person who testifies against another incarcerated person based on conversations the two had.

As a prosecutor, I frequently received letters from inmates telling me they had "information" on a case I was prosecuting. The correspondence was always in a handwritten envelope and letter from the correctional facility. The author provided me just enough details to pique my interest, but not enough to vet the accuracy of any alleged confession.

There were a few steps required when receiving a letter like this:

1) Check whether the proposed informant had access to the defendant I was prosecuting to even have the ability to obtain a confession.
2) Check why the proposed informant was in custody. Did he have an attorney because he had pending charges?
3) Set up a meeting.
4) Investigate the information.

I was always a hopeful skeptic at these meetings. No prosecution should be built based solely on the testimony of a jailhouse informant, but additional evidence never hurt. The key to these meetings was to obtain details of the conversations between the informant and the defendant. Details were the key. Anyone could come in and say, "Johnny told me he killed that guy." What did Johnny the defendant say about how he did it, about where he hid the evidence? I was looking for the details that were not reported in the media or not elicited in court. I needed details only the culprit would know.

Ninety percent of the time these meetings proved to be a waste. The informant either did not have enough information or I could not help the informant enough in their requests. This was a quid pro quo after all. If I wanted the informant's testimony, I needed to give him something. Did he want to plead to a lower charge? Have his case dropped totally? Commute his sentence? If I wanted the testimony, I could usually negotiate a plea deal for the informant. But I never did, and never wanted to, drop charges or attempt to get a person out of their sentence.

Another reason the potential testimony failed? Discovery. If the defendant had already received his discovery and his or her attorney had provided him a copy, how could I prove the defendant's confession came from his mouth as opposed to facts the informant put together from the police paperwork.

When a prosecutor makes a deal like this, there is always a stain on the case and even on the prosecutor depending on how good the deal was. The defense attorney would say, "Look at the evidence. Look at the witnesses. The informant holds a gun to a little old lady and takes her purse. He gets a slap on the wrist as long as he will say what the prosecutor wants." I only used jail house informant testimony if it would be window dressing on an already solid foundation of a case.

There is also a legal analysis required. A person has a Sixth Amendment right to have an attorney present for all questioning by authorities. In New York State, this right attaches, and cannot be waived, when a person is formally accused of a crime. Essentially, the informant cannot have been acting as an agent of the police at the time he obtained the information from the defendant. It does not matter that he was doing it purely in his own self-interest with the intention of going to the authorities. The only rule is that he cannot have been doing it at the direction of law enforcement. A judge is required to conduct a Cardona hearing to determine if the informant was acting as a law enforcement agent or not. The minute the informant approaches law enforcement and volunteers to tell them about his conversations with the defendant, he is an agent. Therefore, any conversations obtained following the informant reaching out to the prosecutor or police will be inadmissible.

Once an informant gets a deal for testifying against a defendant, the odds are the informant will appear just about every time they get arrested. They know that they can get lower charges and sentences just by getting information for the police. We used to call these guys professional snitches. They know the game, the system, and the laws so well that they have the ability to say whatever is necessary to save their own neck. It is an even lower form of evidence than an informant used one time.

A good defense attorney can destroy informants on cross and a prosecutor should never rest his or her case on only this evidence. But just because this testimony has drawbacks, doesn't mean it should never be used. As a legendary prosecutor in my old office once said in his closing argument, "If you play around in the sewer long enough, you're going to become friends with some rats."

By the way, the case that gave rise to that quote was reversed for prosecutorial misconduct for improper comments on summation.

Sunday, May 3, 2015

The Life of a Former Prosecutor

Everyone asks me about my old DA life - So, do you miss it? Like anything, the answer is yes and no. It has been a (somewhat) smooth transition to private practice so far. Even for an experienced attorney, the new challenge was not without hurdles. The most critical part of private practice was also that for which I was least prepared.

In the DA's office, I did not answer to clients. I had bosses and I had my duties to the U.S. and New York Constitutions, but I did not have clients. Therefore, I told victims what was going to happen most of the time. This is not to say I did not solicit input and ask their opinions on matters. I talked to the victims, listened, and explained. At the end of the day though, a decision was made whether the victim agreed or not.

In private practice, clients pay the bills. That is on top of the duties of an attorney to discuss issues with their clients. In practice this means that the client has to sign off on the critical decisions, and, realistically, many of the non-critical decisions too. The days of telling someone what my decision was and explaining the reason for it have transitioned into days of seeking approval for a certain outcome or strategy.

There are certain other differences too. When I walk in a courtroom now, I wait just like everyone else. Sure, I know many of the court employees and chat with them. But criminal cases take precedence over civil and I generally wait until the criminal cases are completed.

There is also a certain inertia I see in civil cases. In a criminal case, a person's liberty hangs in the balance and there is a rush to move the cases quickly to a resolution. In the civil world, no such rush exists. Judges are scheduling civil trials over a year and a half away (The eighteen months is from the first appearance in front of a judge. There was usually a few years of investigation and discovery that took place prior to even scheduling a trial). The longer a civil case hangs in the balance, the more likely it will settle I notice.

The biggest change is that most of my days are spent behind a desk. As a litigator, I spend more time out of the office than most of my colleagues, but it is nowhere near what it was as a DA when I ran from courtroom to courtroom to police station every hour. This change just so happened to coincide with some studies which report that hours sitting behind a desk may kill you. Lucky me.

I do really enjoy the client development aspect. Part of a private lawyer's job is sales. We need to get clients in the door. Networking and client development are one of my favorite parts.

It has been fun to learn so much new material (corporate transactions, divorce, child support, debt collection, trade secret litigation, environmental law, and much more). Every day I realize how much more I don't know.

Sorry for the rambling post, but I wanted to provide an update that has been a long time coming.

Wednesday, March 11, 2015

A New Journey

Dear readers,

You have probably noticed a lack of posts in the last few months. The reasons are many, but primarily  I was not sure what direction to take this blog or even to continue it at all.

I have been honest with all of you the last few years, trying to provide a glimpse into the life of a prosecutor. I pulled back the curtain and let you know the good and the bad. Now, you deserve to know that I have left my job as a prosecutor and am now a private attorney.

I will explain the reasons why, but first I want to provide a little background into my career and how it intersected with this blog. I was a prosecutor for eight and a half years in two very busy metropolitan areas in New York State. For the last three years, I was also a Special Assistant United States Attorney prosecuting gang crimes in both state and federal courts as part of a task force. These duties added to my regular job as a state prosecutor of violent crimes and violent juvenile crimes.

Writing was an outlet for me throughout my life, but I had stopped doing it for about ten years. I wanted to get back into it and share what was really happening in the criminal world. That started the idea for this blog. My boss (surprisingly) agreed to let me do it as long as I did not discuss pending cases and abstained from belittling anyone. The decision to keep it anonymous was mine alone to protect my ability to keep blogging. I felt that if I went public my boss would not like it if a reporter called me for a quote. I think writing became an outlet again for some of the horrible crimes I prosecuted.

My last major case as a prosecutor was the strangulation and sexual abuse of a thirteen year old boy by another thirteen year old boy (The case is still ongoing). This case highlights the difficulties in being a prosecutor and part of the reason I left. You see, the better you get at a job, the more responsibility you receive. For a prosecutor who specializes in violent crime, that means you get the worst defendants and facts.

Three years ago, I met a robbery victim. He was in his mid-twenties and had come into my office with his parents. The suspect, a serial robber, took his cell phone at gun point. The victim, like so many, did not want to cooperate. His parents came with him to support his decision.

I informed him that in a case like this his wishes did not matter. He could either testify or get an attorney when he received the subpoena so the attorney could explain his rights. In a case with one man causing so much havoc in the streets, we couldn't just leave what happens up to one victim who   decided not to cooperate without putting the case in the grand jury and forcing the witnesses to testify. A prosecutor protects society and does not have to cave to the wishes of a victim if the greater good requires a prosecution. The witness' father asked me if I liked my job. I spoke honestly. I have learned that you have to listen and be honest in order to relate. I told him it was a difficult job to do. No one ever looked forward to speaking with me. Every time a prosecutor like me contacted the victim it was to have the victim relive the worst moment of his or her life.

The father said, "That's bad. Time for a new job."

It registered with me and stuck in my subconscious the way you remember stories from your childhood that affect your life. At the time, it was just another conversation. But every now and then it would appear in my brain for no reason at all. The breaking point for me came when I was driving to work in May 2014 and heard the news report about a missing thirteen year old boy on the radio. When they found his body and made an arrest of another thirteen year old, I knew I would get the call as the violent crimes juvenile prosecutor. I met with the victim's family. Victim? He was a boy. I met with the boy's family the day before the felony hearing. I went with a good friend, the murder victim advocate. The family needed to meet us and hear the truth from us before they heard it in court the next day. There are some things you can't unknow, some things you can't unremember. I will never forget the murdered boy. I will never forget the conversation with his family about what happened to him. I will never forget the pictures of the boy's body.

This is not to say that there was only one case that caused me to look for other work. I had been toying with the thought for months. The inability to stay in one job forever might be a problem with my generation, or it might be a gift. There is so much else I wanted to do with the law outside of prosecution. Working for the government limits the opportunities because I was a public servant. I've always loved business and finance too. I have always wanted to start a business. I always wanted to write more. I thought, 'maybe I should try something before it's too late.'

I faced a crisis of what I wanted. I had accomplished so much in my career already - state and federal prosecutor, experienced trial attorney, experienced investigator. My greatest accomplishment was taking what started out as a a set of phone records and building that into an indictment of a four month long robbery spree by five teenagers that ended in the murder of a cab driver. I had worked so hard and so long on that case that I could still give the closing argument today. That case was part of the problem though. It is a tremendous accomplishment and that month long trial with over 60 witnesses might never get replicated in my county again. But I looked at what it took to obtain an accomplishment - someone had to die. In that case, we were scheduled to present the first set of robberies to a grand jury in March. The defendants, who had made bail, committed the murder nine days before we were set to indict them.

You can probably see that the cases take a toll on me. I am not the type of person who can leave it all at the office.

There are failures, but there are so many successes. I obtained convictions for numerous violent criminals, even in the face of adversity like a lack of cooperation from witnesses. Serial robbers, rapists, burglars, murderers, and would be shooters who carried guns were convicted. I am confident that I helped to save lives. I was successful because I cared so much. The successes aren't just convictions either. A large part of my caseload was dismissing cases that did not have enough evidence or where the police performed an illegal search. I hope I exonerated the innocent as much as I convicted the guilty. A professional prosecutor is the first guard against a wrongful conviction.

Another of the success at the time? I helped convict a 16 year old of murder in my first trial when I switched offices. Three witnesses identified him, including the murder victim's girlfriend. The girlfriend sat on the witness stand and yelled at the defendant, asking him why he killed her man. I wiped tears away, the judge wiped tears away, and jurors wiped tears away. The emotion in the courtroom hung like fog on everyone inside of it. After hours of deliberation, the jury convicted based on the eyewitness testimony.

As it turns out, the defendant was innocent. The case was truly a failure. The defendant was convicted even though the police, prosecutors, judge, and defense attorney did everything right. He is out now, but that still sits with me. A defense attorney never gave up on his client and we agreed to dismiss the case when the exoneration evidence came out almost four years later.

As the cases and memories piled up, I asked myself did I want to do this forever? Was there something else out there? I owed it to myself to look. I owed it to myself to make sure whatever decision I made was right for me and my family. There was a point where I was going to become a career prosecutor if I stayed much longer no matter if I wanted it or not.

I found a job that fit at the end of 2014 and started it in 2015. I am now a civil litigator, which is about as far as you can get from criminal prosecution. It was what I wanted. It was what I needed.

Prosecution has taught me values and ethics. It has shown me how to work hard and how to investigate before making a decision. I learned how to listen when everyone else wanted to talk at the person. I learned how to work with the poorest and dirtiest person and how to work with the wealthiest. It surrounded me with people that I love and will be friends with forever. It made me laugh every day. There was never a day I dreaded going to work because of the people I worked with. Making a decision to leave felt like ending a long-term relationship. Sometimes you know it is not working out anymore, but ending it meant you were breaking up with the family too.

The one hang-up, the one thing that almost caused me to stay was the thirteen year old victim. Even as I write this I am tearing up. Did I owe it to him to stay? To his family? I built up so much trust with them and had given that case everything. Should I see it through to trial even though there would be no way I could get through it without becoming an emotional wreak? Maybe I had become too attached, too invested in some of these cases. It was not every case, but there was always one or two that really meant more than just a name on a file. Before I made the decision to leave, I checked my ego. There were plenty of amazing prosecutors who would handle the case just as well, if not better, than me.

This blog's readers have made this so much fun. During the first few months of doing this, about eight people a month would read this blog. I don't know what happened, but over the last two years 10,000 people a month come to check it out. I think that's pretty decent for not doing any marketing. Apparently, people wanted to listen to what I had to say. I like to think it was because I was honest. I tried to help. I wasn't doing this because I had something to sell or was trying to get you to hire me. I wanted you to know what life was really like for a prosecutor.

I am still conflicted about what to do with this blog. I love doing it. I love the comments and the emails. So many of you reach out for help in your career or even on whether to go to law school. So many of you have written back to tell me about your success in getting DA jobs or even avoiding DA jobs because you realized it was not the right fit. I will continue the blog and now can be more open about criminal cases and DA life. To be honest, I have no idea what will happen with it over time. Maybe it will morph into something else. Maybe I will write more and tell you about it. Maybe I will not. Who knows? Public service is still a large part of what drives me. Maybe doing this will be part of that?

Thank you for reading. Thank you for commenting. Please come back as I open up on more stories about cases I've handled or issues that continue to come up. I would not trade my life as a DA for anything. At its core, it was about helping people. I am proud and honored to say I helped people who  needed it the most.

Sunday, January 4, 2015

How a Grand Jury Actually Works

This post is a little late to the party, but I thought it necessary to explain how a grand jury actually works in New York State with all that was written and reported over the last few months.

The grand jury consists of twenty-three jurors, who are citizens in the county they are called to serve in. They are asked to serve for a period of time, usually a month. The number of times they meet per month varies by the size of the county. In New York City, the grand juries will meet twenty times during their term. In small counties, they might meet four times.

In simple terms, every felony must be presented to a grand jury in New York State, unless the defendant pleads guilty prior to the presentation. The grand jury has the power to indict a person (formally accuse the person of a crime) or file a no bill (dismiss the charges). Twelve of the grand jurors must vote to indict or twelve must vote to dismiss. If you do the math, a majority is needed to do either action.

The grand jury may vote to indict a person if there is reasonable cause to believe the person committed an offense. That is significantly less than the standard at trial a jury must follow which allows the jury to convict only if they find the person guilty beyond a reasonable doubt. Due to this, many cases will pass the grand jury stage, but fail at trial.

There are really two types of cases a prosecutor presents to the grand jury. Most often we present cases where the police have investigated a crime and arrested a suspect (We'll call these "charged crimes"). Probably once a year in a large jurisdiction, each prosecutor presents a case without charges filed and uses the grand jury as the investigating body (We'll call these "uncharged crimes").

The difference? The charged crimes are usually fully investigated or close to it. The grand jury is a safeguard to decide if there is enough evidence to proceed to trial. The uncharged crimes are usually not fully investigated and require the power that only a grand jury can provide. A prosecutor usually has an idea that a crime occurred and a possible suspect at this point, but is never sure of where the proof will actually lead.

A grand jury can issue subpoenas, demanding to hear testimony or see documents. The police can merely request. If a person refuses to talk to the police or the prosecutors or provide requested evidence, a grand jury is how the prosecutor will force the person to testify or turn over the evidence. Many times I have had witnesses refuse to talk to anyone, but I obtained information they were an eyewitness or an earwitness (heard a confession). This required me to present the case to a grand jury and force the potential witness to testify. Granted, the grand jury is the last step in the investigative process because once the grand jury issues subpoenas the secret investigation no longer exists. We try to do everything we can without using the grand jury's investigative power, but sometimes cases require it.

Everyone is sworn to secrecy concerning the grand jury proceedings, except for the testifying witness. This is meant to protect the witness' privacy and alleviate pressure. Once the testimony is presented, the prosecutor then charges a grand jury by reading the applicable penal law violations and leaves to let the grand jury decide. The grand jury can request to consider charges the prosecutor does not submit, but the request must be based on evidence. If a grand juror wants to consider murder in the first degree even if the defendant is sixteen, the prosecutor cannot submit the charges because an element of murder first is the defendant be nineteen or over.

The issue arises as to a prosecutor's ethical obligations. If the grand jury investigation does not yield the expected evidence should the case be prosecuted further? To put it another way, if the prosecutor feels they cannot prove the case beyond a reasonable doubt at trial but is confident there is enough evidence to satisfy the lower grand jury standard, should they indict it or ask to file a no bill? Should the victim get their day in court in an unproveable case? Isn't that how innocent people get convicted because the prosecutor just takes a chance?

My office has a policy that we do not indict a case unless we can prove it beyond a reasonable doubt at trial. This is to guard against wrongful convictions. My District Attorney gets a lot of negative publicity for this stance because they claim he only takes the "winners" and "slam dunks." Even with his policy, we still lose some cases after trial. There are no winners or slam dunks before a jury. If it is a close call as to the proof at trial, we will let the grand jury decide and then move the case to trial.

The grand jury is a screening tool for the prosecutor just as much as it is a procedural safeguard for the defendant.

Wednesday, December 10, 2014

ABA Top 100 Nominee!

For the first time since I started doing this, the American Bar Association has nominated the lowly staff of one over here at Prosecutor's Discretion for its annual inclusion in the top legal blogs (or blawgs).

I am very excited to be nominated and that means that someone reads all of this and appreciates its content. But it's not over. Voting is open for an even more exclusive club, to be a member of the top 100 Blawgs of the year. Please visit the site here and vote for your favorites, including Prosecutor's Discretion which is under the criminal justice section.

Voting ends soon so head over quickly and thank you for voting and reading!

Wednesday, December 3, 2014

The Prosecutor's Decision

On Monday, I posted a hypothetical fact pattern based on different cases we see in my office. Check it out here.

This is a difficult case as it is laid out. There were many comments and emails from readers with good questions and suggestions on what type of evidence should be collected.

Let me put what the prosecutor looks at. If these are the only facts, we cannot prove the case beyond a reasonable doubt. The police have probable cause to arrest based on the witness statements, but it is not even clear the case would survive grand jury. With just these facts, the question arises of whether we should prosecute the case. Is this the case where innocent men might be convicted? If we choose not to go forward, how do we tell the victim?                                

Prosecutors receive cases like this every day. It's called an incomplete investigation. We are not investigators, but many time the prosecutors have to pick up where the police left off. Once police officers put the cuffs on, they move on to the next case.

One suggestion was to get the Facebook messages between the victim and boy she was talking too. That is the first thing I would do. Then, I would find out where the boy posted his messages from. A cell phone? We would obtain a search warrant for the cell phone to get the messages. Does the boy's Facebook page contain a video? Then, we can access his videos on his phone through the warrant too. Maybe these boys took a video of the incident which would show what happened.

If the victim reported the crime early on, we would obtain a search warrant for the house where it occurred to try and find evidence too.

Every investigation starts with obtaining some evidence and then any good prosecutor follows all the leads from that piece of evidence. One of my mantras is that every file has the potential to turn into numerous files. A gun case means we might be able to find out who sold the gun to the person. One robber probably did more in the area. If we get a cell phone of a rape, there is a good chance more exist on there.

It creates a never ending cycle.

Once we exhaust the possible evidence, we can make the decision. Again, if no other evidence existed but the victim's word this case would be difficult, if not impossible to prove. Those are the worst conversations with victims. They were robbed or raped and are certain we have the right person, but there is nothing to corroborate the identification. With what we know today about DNA and wrongful convictions, can I as a prosecutor justify the prosecution of that person? Does the victim deserve their day in court?

This is the cases we must decide every day. Prosecutorial discretion is a great power that we need to wield responsibly and still respect the rights of the victims. There are rarely easy choices in this line of work.