What follows is a pretty typical day in the life of one Assistant District Attorney in a New York City DA's office. Due to the length, it's broken up into three parts.
Just about everyone took the subway, including me. A book accompanied me on the train allowing me to get lost in a fictional world before I stepped into reality of the streets. I faded into the anonymity that New York City provides. The connected cars bustled and rocked out of the tunnel to the above ground train station at 161st Street - Yankee Stadium. Graffiti soaked buildings whirred by. Graffiti was an enormous problem in the Bronx. One's man crime was another's Rembrandt.
Standard attorney apparel was a suit and tie. Like most days, I wore a suit with sneakers. The walk from my apartment to work destroyed dress shoes, so I changed at the office. Most of my colleagues wore jeans and a tee-shirt to work. They would change into their suits they had stored in the office. I never saw the point of getting ready twice.
It was a quarter mile to the office from the train stop. Up a hill and past the old courthouse. I crossed over the main road called Grand Concourse, where cars sped by, pedestrians texted without looking, and children ran through red lights. Every day without an accident was an act of God. Then, down the hill and into the nine floors that made up the Bronx DA main office.
Bronx DA had offices in three separate buildings. The main office I worked in, the criminal court building across the street, and the Bronx Hall of Justice at a diagonal from my office.
It was 8 a.m. and pedestrian traffic was light. By 9:30, court time, the center of the melting pot universe would overflow onto the street. The South Bronx was one of the poorest communities in the nation and every day hundreds of cultures shared the same sidewalks as people headed to court. The Bronx was the United Nations of immigrants, with every continent represented. The multiple languages sang from 9:30 through 5:00, forming a symphony of the downtrodden.
I went to the seventh floor and put my hand into a scanner, marking my arrival. It was a new procedure to account for our arrival and departure. Another device in the war against public servants.
8:15 and I settled into my desk. I had the next thirty minutes to myself. No colleagues popping in, no phone calls coming in, and no emails to respond to.
It was enough time to ready myself for the grand jury on 180.80 day.
I had stayed the night before until after 7:00. I called the witnesses, the victims, the hospital, and the police. I returned a call from the defendant's attorney. The hospital told me the gunshot victim who was shot with a .45 to the back of his head four days before was treated and released. Another act of God. The victim's mother told me he's home, but too tired to talk. An eyewitness used some choice words to describe what he would rather do than come and testify. The police assured me they would round everyone up.
The defense attorney told me his client wanted to testify in the grand jury. That meant this Friday would require me to put my entire case in the grand jury and question the defendant, hoping for the grand jury to vote an indictment before they went home for the weekend.
It also meant another late night.
I checked over my materials. Police paperwork, victim's medical records, questions prepared, criminal charges to read to the grand jurors were all ready. The only thing I didn't know was if I had was any witnesses.
Loyal readers will see this is a common theme in an ADAs career.
9:15 came and it was time for the morning meeting. My bureau met everyday to discuss news and if anyone had issues with their cases. The Bronx DA employed about 400 ADAs at the time. We all had caseloads approaching 100 cases. It was not logistically possible for every ADA to stand on their own case in court. That meant we all had to be in a court part once a month, handling everyone's case for that day.
I couldn't do it that day because I had grand jury.
After the meeting, I went to the grand jury. It was in the Bronx Hall of Justice. The building was a massive structure the size of two city blocks. It was over six stories high. Its outside was all shaded green windows in an accordion pattern. It looked like a giant had pushed the building together after construction, folding the windows toward each other. The building was new and expensive, which was why the local news rolled out when the building's windows started shattering on their own. Wooden boards replaced the shattered glass. The building was beginning to resemble its South Bronx heritage. A little graffiti and it might have been here forever.
The officers promised me they would take the witnesses right to the grand jury. I would conduct my brief interviews and then wait my turn in line to enter the grand jury. Fridays were always the busiest days.
I checked in with the two ladies who ran the grand jury. Nothing happened without their approval. There were six grand juries at a time, sitting for a month each. And that wasn't even enough. Somehow these women made the system flow.
I told them what I had and they directed me to a grand jury. I was the first in line.
"Your witnesses here?" One of them asked.
"Not yet," I said.
"Can't sign up until they're here." They said.
I knew that and now a steady stream of assistants were signing up before me. It would be a long day indeed.
9:45 and the officers arrive without any civilians. Things were not looking good.
Then, the phone rang. It was an assistant covering one of my cases in the courthouse.
"Judge is sending you out to trial," the assistant said. It was stated as a fact, not a question.
"Which case?"
"Washington. The defense says he's ready to go." I sensed her urgency to get me off the phone and get back to the other cases.
I punched the air because my courtesy got me in trouble. I called the defense attorney two days ago and informed him I would not be ready for trial due to grand jury. The defense attorney assured me that was fine because he was requesting an adjournment anyway.
Turns out that wasn't the case.
"I'll be right there." I instructed the officers to find those witnesses as soon as possible and to call my cell with any news and headed to court to fight a battle against a judge trying to clear his calendar and a retained defense attorney trying to look good for a paying client.
Tuesday, May 29, 2012
Wednesday, May 23, 2012
The Law of Snitching
In an interview with a victim last week, he informed me that he would never testify because on the streets, "snitches get stitches."
I informed him that he was a victim, not a snitch. Not a co-defendant turning on his buddy. It didn't matter to him because snitching has transformed to include people who call the police as a victim of a crime.
Street Law
Over the last few weeks, there has been a slew of shootings in my city. Many of these have turned fatal and the stories are picking up steam in the local papers. Columnists, community leaders, and detectives are screaming for witnesses to come forward.
There is a distressing phenomenon in American inner cities. A slim minority of men can bend entire neighborhoods to their will through fear. They rob, steal, and maim with impunity. Witnesses routinely tell police officers that they will not ever cooperate. It's led many of our usual suspects to commit acts of violence against people they know. Those people are less likely to report the crime and follow through for fear of retaliation. They know the suspect, but more important to them, the suspect knows who they are and where they live.
These men make life miserable for a neighborhood and obstruct progress in a community. Yet people are afraid to speak out against them. Good citizens fear for their own lives and those of their children when they speak with police. Those that do cooperate refuse rides to court because they don't want their neighbors to see them getting in a police car.
This perception needs to be destroyed.
The worst, most hardened gangster is the first to beg for a plea deal to give up his friends. It happens everyday in every city in America. When the alternate choice is a lifetime in prison, people come to the side of light pretty quickly. These same men who vow vengeance against any person that testifies against them, cry in my office when recounting their tales of crime and begging for mercy.
Snitching used to refer to one gangster cooperating against another gangster. Their has been a loud and fruitful campaign to use it against all people who report a crime. Victims of violence or theft are told to accept what happened as part of life in the neighborhood and not report it to the police.
Let's get the ones who create havoc off the streets. It takes citizens who will stand up. It's just an unfortunate truth that for every reported violent crime, there are probably two or three that don't get reported because the victim is resigned to accept their fate.
Actual Law
The legal term for snitching is called accomplice testimony. It's when a person involved in a crime agrees to testify against the other participants in exchange for a reduced plea.
Said another way, the person cops a deal.
New York law says that testimony of an accomplice, standing alone, is insufficient proof against the defendant. There must be some form of corroboration that connects the defendant to the crime on top of the co-defendant testimony.
The reason for this is simple. A person can simply make up anything to get a better deal. Two drunk people in a car after an accident? Well, either one can claim the other was driving. Two robbers? One of them will inevitably claim the other had the gun to get a lighter sentence.
The law requires something more than an accomplices word to prove a defendant guilty. That means an independent witness, DNA, fingerprints, or other circumstances must exist.
This is different than federal law where accomplice testimony is enough. Federal prosecutors do not need any corroboration, although many won't prosecute a case without it.
Some interesting strategies must be discussed when a co-defendant agrees to testify.
First, the prosecutor must decide if the benefits of the testimony outweigh the disadvantages. The negatives are that the prosecutor appear like a salesman, making deals to get what they want. Also, the defendant turned witness had inevitably lied to the police or prosecutor already. The cooperator will only get a deal when they say what we want to hear. It can look like we only give deals to people who say what we want to hear.
Second, prosecutors must decide how to use the defendant at trial. (See this post on the unlikeable witness). Embrace the witness as a bastion of the truth? Speak about the witness as a necessary evil? It depends on each case. One thing is certain. The defendant will be telling his attorney every despicable act the cooperating witness ever did. The witness will look like the ring leader of an evil empire by the end of the cross-examination. That's why I constantly remind the jury that the cooperator is the defendant's friend, not mine.
I am an advocate for the victims of crimes. But, I can't be the only one. Victims and witnesses must be an advocate for themselves and do whatever is necessary to see the person brought to justice.
Street Law
Over the last few weeks, there has been a slew of shootings in my city. Many of these have turned fatal and the stories are picking up steam in the local papers. Columnists, community leaders, and detectives are screaming for witnesses to come forward.
There is a distressing phenomenon in American inner cities. A slim minority of men can bend entire neighborhoods to their will through fear. They rob, steal, and maim with impunity. Witnesses routinely tell police officers that they will not ever cooperate. It's led many of our usual suspects to commit acts of violence against people they know. Those people are less likely to report the crime and follow through for fear of retaliation. They know the suspect, but more important to them, the suspect knows who they are and where they live.
These men make life miserable for a neighborhood and obstruct progress in a community. Yet people are afraid to speak out against them. Good citizens fear for their own lives and those of their children when they speak with police. Those that do cooperate refuse rides to court because they don't want their neighbors to see them getting in a police car.
This perception needs to be destroyed.
The worst, most hardened gangster is the first to beg for a plea deal to give up his friends. It happens everyday in every city in America. When the alternate choice is a lifetime in prison, people come to the side of light pretty quickly. These same men who vow vengeance against any person that testifies against them, cry in my office when recounting their tales of crime and begging for mercy.
Snitching used to refer to one gangster cooperating against another gangster. Their has been a loud and fruitful campaign to use it against all people who report a crime. Victims of violence or theft are told to accept what happened as part of life in the neighborhood and not report it to the police.
Let's get the ones who create havoc off the streets. It takes citizens who will stand up. It's just an unfortunate truth that for every reported violent crime, there are probably two or three that don't get reported because the victim is resigned to accept their fate.
Actual Law
The legal term for snitching is called accomplice testimony. It's when a person involved in a crime agrees to testify against the other participants in exchange for a reduced plea.
Said another way, the person cops a deal.
New York law says that testimony of an accomplice, standing alone, is insufficient proof against the defendant. There must be some form of corroboration that connects the defendant to the crime on top of the co-defendant testimony.
The reason for this is simple. A person can simply make up anything to get a better deal. Two drunk people in a car after an accident? Well, either one can claim the other was driving. Two robbers? One of them will inevitably claim the other had the gun to get a lighter sentence.
The law requires something more than an accomplices word to prove a defendant guilty. That means an independent witness, DNA, fingerprints, or other circumstances must exist.
This is different than federal law where accomplice testimony is enough. Federal prosecutors do not need any corroboration, although many won't prosecute a case without it.
Some interesting strategies must be discussed when a co-defendant agrees to testify.
First, the prosecutor must decide if the benefits of the testimony outweigh the disadvantages. The negatives are that the prosecutor appear like a salesman, making deals to get what they want. Also, the defendant turned witness had inevitably lied to the police or prosecutor already. The cooperator will only get a deal when they say what we want to hear. It can look like we only give deals to people who say what we want to hear.
Second, prosecutors must decide how to use the defendant at trial. (See this post on the unlikeable witness). Embrace the witness as a bastion of the truth? Speak about the witness as a necessary evil? It depends on each case. One thing is certain. The defendant will be telling his attorney every despicable act the cooperating witness ever did. The witness will look like the ring leader of an evil empire by the end of the cross-examination. That's why I constantly remind the jury that the cooperator is the defendant's friend, not mine.
I am an advocate for the victims of crimes. But, I can't be the only one. Victims and witnesses must be an advocate for themselves and do whatever is necessary to see the person brought to justice.
Monday, May 21, 2012
100 and Counting . . .
Let Rainn Wilson (who plays Dwight Schrute onThe Office) ring in the celebration.
100 POSTS!
Three huge achievements mark this celebration: 1) I'm still employed, 2) My boss has not instructed the removal of any posts, and 3) More people view the blog everyday.
100 posts and I've learned something - I've got a lot to say.
There's a line in every summation where an attorney can cross over from sharp and engaging rhetoric to over-the-top boredom. Usually, a five minute window separates the two.
Hopefully, I'm still providing insights into the criminal justice system and the life of an ADA. I do worry that your eyes are glossing over sometimes, but the stats tell a different story.
With the advice and well wishes of a current prosecutor and former prosecutor, I embarked on this writing journey. The blog started with just one follower and two views (one being mine and the other my wife). The follower was (of course) a family member. 100 posts later and there are 27 followers (most of whom I haven't given a birthday present to) and tens of thousands of views.
Thank you for following. I hope you are enjoying reading as much as I am writing. I've got plenty in store for the coming months. Many of the upcoming posts will allow you to contribute too. I'll be interviewing a former Legal Aid Attorney in the Bronx and current Innocence Project attorney. Towards the start of June, I'll be asking readers to submit any questions and we will get as many answered as we can.
There is a terrific community of bloggers out there, which I'm discovering daily. Check out the blogroll on the right for their work. Their support has helped the site grow and I hope I'm returning the favor.
There will be 100s more posts coming. As always, please submit your questions and ideas either in a comment of via email.
As per a reader request, later this week we'll discuss the life of a New York City ADA.
Friday, May 18, 2012
Criminogenics
Huh? That's what I thought too. A made up word to address made up problems.
Turns out there is a lot of research out there on the subject. Criminogenics is the study of needs that must be addressed in order to rehabilitate a convicted criminal and reduce recidivism (breaking the law again).
It's tied to the old debate. What should be the purpose of the penal law? To punish or to rehabilitate?
Criminogenics looks for ways to rehabilitate a person so that they can reenter society and not commit another crime. It's not the typical kumbaya approach to rehabilitation and treatment. It's based on scientific research and identifies six risk factors that associate with criminal conduct:
1. antisocial/ pro-criminal attitudes, values, and beliefs
2. pro-criminal associates
3. temperament and personality factors
4. a history of antisocial behavior
5. family factors
6. low levels of educational, vocational or financial achievement
Some of these areas can be changed and some cannot. It takes a lot of work and skilled practitioners to change someone's beliefs, personality, associates, and temperament. The focus is on changing the individual. It is difficult, if not impossible in some cases, to change the individual's environment.
There is plenty of research to support the idea that programs that correctly work on these areas reduce recidivism. Programs that just provide education or drug treatment don't work well.
But, what about the victim in all this? Should there be some measure of justice for the victim of the crime? Should the seriousness of the crime have an impact on what happens? If we switch to a strictly rehabilitative program, should it be enough for a person that was raped to know that we're doing everything we can to help the defendant get back on track?
I think criminogenic programs have their place with misdemeanor and low level felonies. When a serious and violent crime occurs though, there must be a measure of punishment doled out to deter the defendant and others. Additionally, even people who study criminogenics will admit that there are people who will not respond to treatment. Everyone cannot be saved.
There is legislation pending in New York that would raise the age of infancy to eighteen. That means everyone up to seventeen would go through family court, except for serious felonies. The age is currently sixteen. New York is one of only two states where sixteen year olds are treated like adults.
The teenagers I see are extremely violent and involved in gangs. All of their friends are too. There is generally limited parental involvement and no motivation to change. In at risk populations, changes and training must start when children are five or six years old. The families, communities, and schools are where training should begin. All the training in the world won't work if we release a person into the same environment.
One quick story. A defendant had committed a series of burglaries. He was sixteen. The police caught him leaving one of the houses. They brought him in for questioning and his mother showed up. She asked the police what the big deal was. All the people he was stealing from have insurance.
These are the attitudes all programs will battle against. Our society has tried to strike a balance between rehab and punishment for decades and will continue to do so.
Turns out there is a lot of research out there on the subject. Criminogenics is the study of needs that must be addressed in order to rehabilitate a convicted criminal and reduce recidivism (breaking the law again).
It's tied to the old debate. What should be the purpose of the penal law? To punish or to rehabilitate?
Criminogenics looks for ways to rehabilitate a person so that they can reenter society and not commit another crime. It's not the typical kumbaya approach to rehabilitation and treatment. It's based on scientific research and identifies six risk factors that associate with criminal conduct:
1. antisocial/ pro-criminal attitudes, values, and beliefs
2. pro-criminal associates
3. temperament and personality factors
4. a history of antisocial behavior
5. family factors
6. low levels of educational, vocational or financial achievement
Some of these areas can be changed and some cannot. It takes a lot of work and skilled practitioners to change someone's beliefs, personality, associates, and temperament. The focus is on changing the individual. It is difficult, if not impossible in some cases, to change the individual's environment.
There is plenty of research to support the idea that programs that correctly work on these areas reduce recidivism. Programs that just provide education or drug treatment don't work well.
But, what about the victim in all this? Should there be some measure of justice for the victim of the crime? Should the seriousness of the crime have an impact on what happens? If we switch to a strictly rehabilitative program, should it be enough for a person that was raped to know that we're doing everything we can to help the defendant get back on track?
I think criminogenic programs have their place with misdemeanor and low level felonies. When a serious and violent crime occurs though, there must be a measure of punishment doled out to deter the defendant and others. Additionally, even people who study criminogenics will admit that there are people who will not respond to treatment. Everyone cannot be saved.
There is legislation pending in New York that would raise the age of infancy to eighteen. That means everyone up to seventeen would go through family court, except for serious felonies. The age is currently sixteen. New York is one of only two states where sixteen year olds are treated like adults.
The teenagers I see are extremely violent and involved in gangs. All of their friends are too. There is generally limited parental involvement and no motivation to change. In at risk populations, changes and training must start when children are five or six years old. The families, communities, and schools are where training should begin. All the training in the world won't work if we release a person into the same environment.
One quick story. A defendant had committed a series of burglaries. He was sixteen. The police caught him leaving one of the houses. They brought him in for questioning and his mother showed up. She asked the police what the big deal was. All the people he was stealing from have insurance.
These are the attitudes all programs will battle against. Our society has tried to strike a balance between rehab and punishment for decades and will continue to do so.
Wednesday, May 16, 2012
CLE Wrap-Up
Many of these CLE's I attend are filled with very good speakers. Unfortunately, the topics and presentations usually provide little in the way of practical tips for attorneys. It's always a lot of theory and studies.
I tried to be practical and provide a guide for how to prosecute a juvenile in supreme court. There were 140 attendees and the presentation was simulcast across the state. Everyone gets to review each presenter. We'll see how the reviews go when they all come in. At least no one yelled out "back that thing up over here" like at a presentation I gave at a high school to curb DWI during prom season.
I did meet a professor of criminogenics (more on that to come in a future post) and many dedicated professionals who focus on rehabilitating children. It is always interesting looking at the family court system which is focused on the best needs of the juvenile compared to the criminal adult system which is very punitive. There were mixed reviews from the ADAs in the audience about the effects and differences between rehabilitative and punitive measures. The main point that prosecutors focus on seems like the one thing that rehab and family court programs don't - the seriousness of the offense.
It was a late flight last night and an early morning at work catching up from the voicemails, emails, and files that pile up even with two days out of the office. It was great catching up with some old friends and meeting new colleagues. Check back Friday for a post about criminogenics and what it means.
Here's a preview.
On a different note: I watched the Today Show as I got ready for the presentation yesterday. They were interviewing a man who is in a custody fight for his dog. He's spent $60,000 so far. Anytime I think about turning my back on the criminal world and entering a civil firm, cases like this pop up and remind me why I've stayed in prosecution.
Although $60,000 would be nice.
I tried to be practical and provide a guide for how to prosecute a juvenile in supreme court. There were 140 attendees and the presentation was simulcast across the state. Everyone gets to review each presenter. We'll see how the reviews go when they all come in. At least no one yelled out "back that thing up over here" like at a presentation I gave at a high school to curb DWI during prom season.
I did meet a professor of criminogenics (more on that to come in a future post) and many dedicated professionals who focus on rehabilitating children. It is always interesting looking at the family court system which is focused on the best needs of the juvenile compared to the criminal adult system which is very punitive. There were mixed reviews from the ADAs in the audience about the effects and differences between rehabilitative and punitive measures. The main point that prosecutors focus on seems like the one thing that rehab and family court programs don't - the seriousness of the offense.
It was a late flight last night and an early morning at work catching up from the voicemails, emails, and files that pile up even with two days out of the office. It was great catching up with some old friends and meeting new colleagues. Check back Friday for a post about criminogenics and what it means.
Here's a preview.
On a different note: I watched the Today Show as I got ready for the presentation yesterday. They were interviewing a man who is in a custody fight for his dog. He's spent $60,000 so far. Anytime I think about turning my back on the criminal world and entering a civil firm, cases like this pop up and remind me why I've stayed in prosecution.
Although $60,000 would be nice.
Friday, May 11, 2012
CLE
Every two years, three letters send lawyers scrambling. Hearts beat against chests, threatening to break rib cages. Sweat beads on the brow and drops onto a single piece of paperwork in their hands. It's the biennial certification to remain an active attorney. The three letters? CLE. It stands for continuing legal education. Requirements vary by state, but in New York we must acquire 24 hours of CLE credits every two years. The state sends out a form the month before your birthday asking you to send a check (of course) and the CLE certification.
It's going to be hard to believe, but lawyers are procrastinators. Especially, with things like CLE credits. In the private sector, CLE classes mean that the attorney is losing money. Instead of billing clients, they are in class. Naturally, lawyers wait until the last minute to get their credits in. That means you can find most lawyers the month before they must submit their paperwork, scouring for all day CLE conferences.
With the advent of technology, CLE's are now available online. This makes it much easier to get CLE credits.
So, why a post on this? Well, the life of a prosecutor goes beyond the courtroom. One of the perks is that when you gain enough experience you can become one of the CLE presenters.
Next week I'm returning to where my career started - New York City. This time to give a CLE on prosecuting juveniles in supreme court. Of course, friends sent the requisite messages wondering what I could possibly teach them. They're attending just to heckle me. That's what friends are for.
I thought I knew juvenile law and procedure before I prepared for this presentation. Turns out, I only scratched the surface. I've spent hours preparing this and only now, on the eve of the presentation, feel confident about this area of the law. Every aspect of the law holds so many intricacies and important procedural details. I can't imagine being a general practitioner, handling every type of law for every type of client.
All the attendees provide a review of the speakers. Who doesn't love instant feedback from almost two hundred attorneys who all think they can do better than the speaker? Especially with some friends mixed in? We'll see how this goes.
Check out Mark Pryor's blog about how Texas decides who is prosecuted as an adult and who as a juvenile in family court. Next week, I'll let you know how the presentation went and discuss New York law on the issue.
Also, some updates on future posts. Expect a post of a day in the life of a New York City ADA, beeper duty and a normal day. There will be some interesting interviews in the coming weeks as well. I'll let word out in advance because I want you to submit questions prior to the interview.
It's going to be hard to believe, but lawyers are procrastinators. Especially, with things like CLE credits. In the private sector, CLE classes mean that the attorney is losing money. Instead of billing clients, they are in class. Naturally, lawyers wait until the last minute to get their credits in. That means you can find most lawyers the month before they must submit their paperwork, scouring for all day CLE conferences.
With the advent of technology, CLE's are now available online. This makes it much easier to get CLE credits.
So, why a post on this? Well, the life of a prosecutor goes beyond the courtroom. One of the perks is that when you gain enough experience you can become one of the CLE presenters.
Next week I'm returning to where my career started - New York City. This time to give a CLE on prosecuting juveniles in supreme court. Of course, friends sent the requisite messages wondering what I could possibly teach them. They're attending just to heckle me. That's what friends are for.
I thought I knew juvenile law and procedure before I prepared for this presentation. Turns out, I only scratched the surface. I've spent hours preparing this and only now, on the eve of the presentation, feel confident about this area of the law. Every aspect of the law holds so many intricacies and important procedural details. I can't imagine being a general practitioner, handling every type of law for every type of client.
All the attendees provide a review of the speakers. Who doesn't love instant feedback from almost two hundred attorneys who all think they can do better than the speaker? Especially with some friends mixed in? We'll see how this goes.
Check out Mark Pryor's blog about how Texas decides who is prosecuted as an adult and who as a juvenile in family court. Next week, I'll let you know how the presentation went and discuss New York law on the issue.
Also, some updates on future posts. Expect a post of a day in the life of a New York City ADA, beeper duty and a normal day. There will be some interesting interviews in the coming weeks as well. I'll let word out in advance because I want you to submit questions prior to the interview.
Wednesday, May 9, 2012
Prosecutorial Immunity
Famed criminal defense attorney and co-director of the Innocence Project, Barry Scheck, wrote an editorial in The Statesman. In it, he argues that there should be increased accountability for prosecutors who intentionally withhold exculpatory evidence.
Here is a response to Mr. Scheck from a prosecutor.
If you asked 100 people, you would have 100 different responses about what prosecutorial misconduct is. Is it inflammatory comments on summation? Failing to disclose exculpatory evidence? Failing to seek out exculpatory evidence the prosecutor didn't know about? Failure of the police to disclose evidence to the prosecutor?
We want prosecutors to make decisions that are not affected by self-interest or fear of recrimination. We also want prosecutors to act appropriately and turn over every piece of evidence that may exculpate a person. Prosecuting is not a win at all costs job. We are tasked with always doing the right thing, no matter how unpopular it is.
It is extremely rare that a prosecutor can be held civilly liable. It is even rarer for the prosecutor to be held criminally liable. In Texas, a criminal case is progressing against a former prosecutor turned judge.
Cases such as this grab headlines. Wrongful convictions generate traffic to websites and allow comments and experts to rail against police and prosecutors. Where are the stories of police acting appropriately? What about when a conviction is upheld because the prosecution was fair and no rights were violated. In truth, the majority of criminal cases (pleas and trials) are upheld on appeal. Most are not determined to be wrongful convictions.
As I've said before, groups like the Innocence Project do great, necessary work. We just can't forget about the people on the other side who also do great, and necessary work.
Here is a response to Mr. Scheck from a prosecutor.
If you asked 100 people, you would have 100 different responses about what prosecutorial misconduct is. Is it inflammatory comments on summation? Failing to disclose exculpatory evidence? Failing to seek out exculpatory evidence the prosecutor didn't know about? Failure of the police to disclose evidence to the prosecutor?
We want prosecutors to make decisions that are not affected by self-interest or fear of recrimination. We also want prosecutors to act appropriately and turn over every piece of evidence that may exculpate a person. Prosecuting is not a win at all costs job. We are tasked with always doing the right thing, no matter how unpopular it is.
It is extremely rare that a prosecutor can be held civilly liable. It is even rarer for the prosecutor to be held criminally liable. In Texas, a criminal case is progressing against a former prosecutor turned judge.
Cases such as this grab headlines. Wrongful convictions generate traffic to websites and allow comments and experts to rail against police and prosecutors. Where are the stories of police acting appropriately? What about when a conviction is upheld because the prosecution was fair and no rights were violated. In truth, the majority of criminal cases (pleas and trials) are upheld on appeal. Most are not determined to be wrongful convictions.
As I've said before, groups like the Innocence Project do great, necessary work. We just can't forget about the people on the other side who also do great, and necessary work.
Monday, May 7, 2012
What Should the Jury Know?
I'd like to discuss a recent trial. It was a home invasion case tried by talented attorneys for the prosecution and defense. A home invasion is when armed men enter a person's home for the purpose of committing a crime. Home invasion is the colloquial term. The accurate crimes are robbery and burglary.
One of the defendants left his DNA at the scene and was caught fleeing with a loaded shotgun. Another defendant was not arrested until months after the crime, based on the identification of two witnesses. A third defendant awaits trial by a separate jury. The reason for separate trials? The third defendant confessed and implicated the other two.
The Supreme Court in Bruton v. United States, 391 U.S. 123 (1968) has stated that where one defendant implicates another in a statement that will be used against him on the prosecution's case, the trials must be severed. Each defendant must be tried separate. The confession can only be used at the trial against the person that confessed. The jury of the non-confessing defendant will never hear of the co-defendant's confession.
The reason is because the Sixth Amendment confers a right to confront the witnesses against you. Generally, a police officer testifies to a defendant's confession. The defense attorney is allowed to cross-examine the officer. However, the Fifth Amendment right to remain silent does not allow a defense attorney to cross-examine the defendant that gave the statement implicating his client. Thus, the Supreme Court ruled that confessions are only admissible against the person that gives them, not other people implicated.
In the home invasion case, the jury convicted the defendant who left his DNA at the scene and acquitted the second defendant who was arrested based on identifications.
This verdict magnifies the problem with the Bruton decision for a juror. Jurors usually want all the facts before they make a decision. They are attempting to make a decision based on all the facts. Most times though, the facts they have before them are limited by rules, cases, and the trial judge's interpretation of those rules and cases.
Allowing the statement of a co-defendant would violate one of the fundamental rights of our Constitution. Therefore, it's inadmissible. In many cases, courts suppress confessions or incriminating evidence obtained in violation of a person's rights. The jury never hears about it. It's a punishment to the police for the violation and hopefully a deterrent for future conduct.
But the jury comes to mind again. This is further evidence that is available, but a jury is not allowed to hear during the trial. What about items that undercut the prosecution? A jury may never hear those either.
For example, a defendant's statements to police officers do not come into trial unless the prosecution wants them to. A defendant's statements to prosecution witnesses are hearsay, but is admissible because it is considered an admission by an opponent. However, it is not admissible if the defendant tries to offer it in evidence because then it is being offered by the same party, not an opponent. This includes protestations of innocence, alibi claims, self-defense, and any other defense the defendant gives the police. The only way to get these claims in front of the jury is to testify and allow the prosecution to cross-examine.
Rules of evidence and procedure are designed to ensure a trial does not become a drawn out process with all sorts of irrelevant material. The spirit behind them is to keep a trial focused. But we place a tremendous responsibility on the jury to make factual decisions at trial without all the pertinent facts.
Should there be some way to get all relevant materials to the jury? Would instructions from the court that instruct the jury how to consider evidence be enough? How does this affect the defendant's rights?
One of the defendants left his DNA at the scene and was caught fleeing with a loaded shotgun. Another defendant was not arrested until months after the crime, based on the identification of two witnesses. A third defendant awaits trial by a separate jury. The reason for separate trials? The third defendant confessed and implicated the other two.
The Supreme Court in Bruton v. United States, 391 U.S. 123 (1968) has stated that where one defendant implicates another in a statement that will be used against him on the prosecution's case, the trials must be severed. Each defendant must be tried separate. The confession can only be used at the trial against the person that confessed. The jury of the non-confessing defendant will never hear of the co-defendant's confession.
The reason is because the Sixth Amendment confers a right to confront the witnesses against you. Generally, a police officer testifies to a defendant's confession. The defense attorney is allowed to cross-examine the officer. However, the Fifth Amendment right to remain silent does not allow a defense attorney to cross-examine the defendant that gave the statement implicating his client. Thus, the Supreme Court ruled that confessions are only admissible against the person that gives them, not other people implicated.
In the home invasion case, the jury convicted the defendant who left his DNA at the scene and acquitted the second defendant who was arrested based on identifications.
This verdict magnifies the problem with the Bruton decision for a juror. Jurors usually want all the facts before they make a decision. They are attempting to make a decision based on all the facts. Most times though, the facts they have before them are limited by rules, cases, and the trial judge's interpretation of those rules and cases.
Allowing the statement of a co-defendant would violate one of the fundamental rights of our Constitution. Therefore, it's inadmissible. In many cases, courts suppress confessions or incriminating evidence obtained in violation of a person's rights. The jury never hears about it. It's a punishment to the police for the violation and hopefully a deterrent for future conduct.
But the jury comes to mind again. This is further evidence that is available, but a jury is not allowed to hear during the trial. What about items that undercut the prosecution? A jury may never hear those either.
For example, a defendant's statements to police officers do not come into trial unless the prosecution wants them to. A defendant's statements to prosecution witnesses are hearsay, but is admissible because it is considered an admission by an opponent. However, it is not admissible if the defendant tries to offer it in evidence because then it is being offered by the same party, not an opponent. This includes protestations of innocence, alibi claims, self-defense, and any other defense the defendant gives the police. The only way to get these claims in front of the jury is to testify and allow the prosecution to cross-examine.
Rules of evidence and procedure are designed to ensure a trial does not become a drawn out process with all sorts of irrelevant material. The spirit behind them is to keep a trial focused. But we place a tremendous responsibility on the jury to make factual decisions at trial without all the pertinent facts.
Should there be some way to get all relevant materials to the jury? Would instructions from the court that instruct the jury how to consider evidence be enough? How does this affect the defendant's rights?
Friday, May 4, 2012
Day in the Life of an ADA - Random Thursday
The day started at 8:32 a.m. I was two minutes late. It's been a long week catching up from a mini-vacation.
Detectives arrived for a conference at 9:00 a.m. A conference is where the officers tell me about their investigation and arrest. I ask questions about it, trying to ascertain how strong/weak it was. Or how legal/illegal the search or taking of the statement was. The detectives brought additional robberies they suspected this defendant committed. One gun point robbery now morphed into four. We must get DNA, phone records, and determine if the victims in those cases could identify the defendant.
10:00. Another set of officers arrived for the grand jury. I waited outside the grand jury waiting my turn in line. I flipped my wrist every thirty seconds to look at my watch. I had a conference call at 10:30 about a presentation I was giving in two weeks.
A kind soul let me cut in the grand jury line and I made it for the conference call at 10:29.
11:00 to 1:00 involved unsuccessful attempts to clear the paperwork off my desk and organize my files.
1:00 another detective called. He was concerned that a recent defendant was directing threats of a victim from jail. The defendant's purpose was to ensure the victim did not appear at the felony hearing the next day. The defendant would then walk out of jail.
1:30. The detective brought the victim to my office, with the victim's parents. We spent the next hour discussing the benefits/disadvantages of testifying. They left at 2:30 and I was unsure I'd ever see them again.
2:30. More officers arrived for a conference. This involved a major on-going gang violence and narcotics investigation. It was an intelligence sharing meeting. There were over 100 targets and 200 cases discussed. It was 5:00 when they left my office.
5:15. I left work. The paperwork sat on my desk for another day. Maybe tomorrow?
Detectives arrived for a conference at 9:00 a.m. A conference is where the officers tell me about their investigation and arrest. I ask questions about it, trying to ascertain how strong/weak it was. Or how legal/illegal the search or taking of the statement was. The detectives brought additional robberies they suspected this defendant committed. One gun point robbery now morphed into four. We must get DNA, phone records, and determine if the victims in those cases could identify the defendant.
10:00. Another set of officers arrived for the grand jury. I waited outside the grand jury waiting my turn in line. I flipped my wrist every thirty seconds to look at my watch. I had a conference call at 10:30 about a presentation I was giving in two weeks.
A kind soul let me cut in the grand jury line and I made it for the conference call at 10:29.
11:00 to 1:00 involved unsuccessful attempts to clear the paperwork off my desk and organize my files.
1:00 another detective called. He was concerned that a recent defendant was directing threats of a victim from jail. The defendant's purpose was to ensure the victim did not appear at the felony hearing the next day. The defendant would then walk out of jail.
1:30. The detective brought the victim to my office, with the victim's parents. We spent the next hour discussing the benefits/disadvantages of testifying. They left at 2:30 and I was unsure I'd ever see them again.
2:30. More officers arrived for a conference. This involved a major on-going gang violence and narcotics investigation. It was an intelligence sharing meeting. There were over 100 targets and 200 cases discussed. It was 5:00 when they left my office.
5:15. I left work. The paperwork sat on my desk for another day. Maybe tomorrow?
Wednesday, May 2, 2012
It's a Privilege
There is a fascinating trial underway in my office right now. Unfortunately for the reader, speaking about an on-going case would violate one of the only rules my superiors gave me when I approached them about starting this blog. Since they haven't asked me to stop posting or take it down, I'll live up to my end of the bargain. Hopefully, once it's over I can discuss it and get some interviews with the trial attorneys.
One of the many issues that arose during the investigation was spousal privilege. Basically, if you tell your spouse about the crime, can they be forced to testify about it?
Let's discuss some of the privileges that exist in the law. The fact that a witness tells someone something in exchange for secrecy does not make the statement privileged. There must be a legal reason for the communication to be protected.
Attorney-Client
Everyone knows this one. An attorney or employees cannot disclose client communications. This means the attorney, paralegals, investigators, or administrative assistants are forbidden from disclosure. The privilege exists with the client alone. Meaning if anyone is to disclose it, it must be the client.
The reason behind the privilege is to encourage full disclosure between the attorney and the client. If the client believes that everything they say is confidential, they will be more open. Therefore, the attorney can provide better legal advice.
Exceptions:
It's the law, so we know there are exceptions or ways to pierce the privilege. Here are a few:
1) An actual attorney and client relationship must exist.
2) If the communication is made in the presence of a third person not included in the privilege, the communication is not privileged. If the client and attorney speak in the presence of the client's friend, the communication is fair game.
3) A client consulting an attorney for help committing or covering up a crime is not privileged. If the attorney provides help, he is a co-conspirator.
4) The privilege ceases if the client sues the attorney for malpractice.
Doctor-Patient
A doctor, nurse, dentist, podiatrist, or chiropractor cannot disclose any information obtained from a patient, unless the patient waives the privilege. Again, we want to encourage open and honest communication with doctors.
Exceptions:
1) Privilege applies only to information obtained while attending the patient. A doctor may testify that he treated a certain patient, how often, or that surgery was performed.
2) Only information necessary for treatment is privileged. If a patient tells the doctor that he blew a red light, then the doctor may be compelled to testify to that.
3) The privilege is waived when a patient puts it in issue. This usually occurs when a plaintiff sues a person for injuries caused following a car accident.
Spousal
One spouse cannot be compelled to testify to communications received from the other spouse. The reason for the privilege? To protect marriages. Both spouses must agree to waive the privilege.
Exceptions:
1) An abused spouse may testify against the abuser.
2) Ordinary conversations are not privileged. Only matters discussed because the people are married are privileged.
3) Actions. If a person observes their spouse commit a crime, the observations are not privileged.
4) Communications in the presence of third persons.
Parent-Child
This is a gray area. There is not a New York statue relating to this privilege. In addition, only lower courts have adopted this privilege. The New York Court of Appeals has not. Even federal courts have refused to adopt this privilege.
Some of the factors the court will use to analyze whether a communication between a parent and child is privileged are the age of the child, whether the communication was given in confidence, the relationship of the parent and child, and the injury to the relationship from disclosure.
There are more privileges, but these are the ones we see most often. There are always legal arguments to be made to pierce the privileges. It is not always the end of the case.
In a few weeks, we will hopefully analyze the case that was the inspiration for this post. The trial is pitting three top attorneys from my office against the three top criminal defense attorneys.
One of the many issues that arose during the investigation was spousal privilege. Basically, if you tell your spouse about the crime, can they be forced to testify about it?
Let's discuss some of the privileges that exist in the law. The fact that a witness tells someone something in exchange for secrecy does not make the statement privileged. There must be a legal reason for the communication to be protected.
Attorney-Client
Everyone knows this one. An attorney or employees cannot disclose client communications. This means the attorney, paralegals, investigators, or administrative assistants are forbidden from disclosure. The privilege exists with the client alone. Meaning if anyone is to disclose it, it must be the client.
The reason behind the privilege is to encourage full disclosure between the attorney and the client. If the client believes that everything they say is confidential, they will be more open. Therefore, the attorney can provide better legal advice.
Exceptions:
It's the law, so we know there are exceptions or ways to pierce the privilege. Here are a few:
1) An actual attorney and client relationship must exist.
2) If the communication is made in the presence of a third person not included in the privilege, the communication is not privileged. If the client and attorney speak in the presence of the client's friend, the communication is fair game.
3) A client consulting an attorney for help committing or covering up a crime is not privileged. If the attorney provides help, he is a co-conspirator.
4) The privilege ceases if the client sues the attorney for malpractice.
Doctor-Patient
A doctor, nurse, dentist, podiatrist, or chiropractor cannot disclose any information obtained from a patient, unless the patient waives the privilege. Again, we want to encourage open and honest communication with doctors.
Exceptions:
1) Privilege applies only to information obtained while attending the patient. A doctor may testify that he treated a certain patient, how often, or that surgery was performed.
2) Only information necessary for treatment is privileged. If a patient tells the doctor that he blew a red light, then the doctor may be compelled to testify to that.
3) The privilege is waived when a patient puts it in issue. This usually occurs when a plaintiff sues a person for injuries caused following a car accident.
Spousal
One spouse cannot be compelled to testify to communications received from the other spouse. The reason for the privilege? To protect marriages. Both spouses must agree to waive the privilege.
Exceptions:
1) An abused spouse may testify against the abuser.
2) Ordinary conversations are not privileged. Only matters discussed because the people are married are privileged.
3) Actions. If a person observes their spouse commit a crime, the observations are not privileged.
4) Communications in the presence of third persons.
Parent-Child
This is a gray area. There is not a New York statue relating to this privilege. In addition, only lower courts have adopted this privilege. The New York Court of Appeals has not. Even federal courts have refused to adopt this privilege.
Some of the factors the court will use to analyze whether a communication between a parent and child is privileged are the age of the child, whether the communication was given in confidence, the relationship of the parent and child, and the injury to the relationship from disclosure.
There are more privileges, but these are the ones we see most often. There are always legal arguments to be made to pierce the privileges. It is not always the end of the case.
In a few weeks, we will hopefully analyze the case that was the inspiration for this post. The trial is pitting three top attorneys from my office against the three top criminal defense attorneys.