Friday, September 27, 2013

Some Truths?

I posted a link to this article last week and promised to make a few comments on it. In this well-written piece, Seth Abramson discusses 15 truths concerning the criminal justice system. The only truth I've learned from practicing in two different counties and in the federal system is that truth and justice depends on your position in the criminal system. Justice for an accused person is very different from that of the victim.

"Prosecutors are trained to charge cases using the maximum allowable number of criminal statutes, with preference always given to the statutes with the highest maximum term of imprisonment," he writes.

I have discussed plea bargaining in this previous post, but specifically wanted to address charging decisions here. Charging decisions vary widely by office. At the Bronx DA's Office, criminal prosecutions are most often handled in a horizontal manner, meaning one ADA indicts the case in the grand jury and another ADA handles the case through trial. Currently, I work in a vertical prosecution office, where I handle the case from beginning to end. (Check this post out for a more detailed explanation).

The difference in the manner of prosecution makes all the difference in the charging decision. In a horizontal prosecution, the grand jury ADA will generally indict all possible crimes, from the highest charge to the lowest, to allow the more senior trial ADA the freedom to choose which theories to try the case under. If the crime is not charged in the grand jury, it cannot be submitted to a trial jury (unless it is a lesser included offense). In a vertical office, there are usually only one or two charges per criminal act in the indictment. The ADA already knows everything about the case and can see what theory to try it under.

In both cases, however, the offices have worked under the theory that they will only indict a defendant on the highest charge we can prove at trial. This means that we do not use an indictment as a bargaining chip, charging crimes we know we cannot prove so that we can get a plea deal. I'd argue that a prosecutor who does that is unethical. In fact, I rarely offer a post-indictment plea because we have analyzed the case and determined the highest charge before indictment. We then plea bargain from the highest sustainable charge at trial, which is rarely what the police initially charged.

There are in fact many cases where we undercharge, but that usually deals with proof problems. That's the reason a trespass in a home and a larceny is handled like a misdemeanor, not a felony burglary.

Mr. Abramson says that many of the criminal cases that go to trial would get resolved prior to it if the prosecutor had made a just offer. A just offer depends on which side of the courtroom a person is on. An example is a 17 year old who beats an elderly man almost to death, but does not have a prior record. What is a just offer for the defendant, the victim, and society? What about a 60 year old who has a gun illegally, but has been law-abiding all his life? Should he get treated differently than a 20 year old caught with an illegal gun? There are no easy answers in any criminal case.

The article is meant to be thought provoking and give insight into the criminal justice system. It does it very well, but as much as this blog is slanted because of my perspective from the prosecution side, so is the article tilted from the defense side. I have seen many a judge acquit a defendant or suppress evidence because an officer lacked credibility. In fact, the choice between a jury or judge trial will depend on the jurisdiction. In New York City, it is far more advantageous for a defendant to be tried by a jury than a judge. In smaller, less diverse cities, a judge is more likely to acquit than a jury.

There are so many issues brought up in the article--overly broad statutes, alternative sentencing, the disparity in incarceration between ethnic groups--but I must save some for another post. This terrific article came to my attention from a follower who asked for comments on it. Please feel free to comment, email, or tweet questions!

Friday, September 20, 2013

It's Been a Bit Busy

You might have noticed the frequency is posts has decreased and I'm sorry to say it has. The new baby and the day job get in the way of this project. I have some great subjects I'm working on and some really thoughtful emails I'd like to share.

Today though, check out this article by former public defender Seth Abramson about the status of the criminal justice system from his point of view. It is very well written even though I don't agree with everything he says. Click the link here. I'll discuss my views on the article next week.

Friday, September 13, 2013

Check out this video and please read the article here from Huffington Post. Prosecutorial immunity is an issue that affects all prosecutors and all the defendants in the criminal justice system. I've previously posted briefly on this issue.

It is a difficult area. Do you think that prosecutors should be opened up to more civil and criminal liability? Under what circumstances. I think there is an argument for it when a prosecutor willfully and knowingly destroys exculpatory evidence or prosecutes an innocent person, but what about when the prosecutor is acting in good faith?

Wednesday, September 11, 2013

The Sentencing Answer

Last week I laid out a factual scenario here, asking for your comments and emails about what sentence the defendant should receive.

Most of your replies tended on the high end of the range, around 14 years. After all, many of you argued, she already received the benefit of a reduced plea bargaining bringing her max sentence down from 50 years to 14 years.

And the judge sentenced the defendant to . . . . 2 years of local time and no parole.


Friday, September 6, 2013

You Get to Be the Judge

What would you do?

I am heading down to sentencing this morning for a defendant who committed a robbery and a separate home invasion. We have wrestled with what an appropriate sentence should be for months as the case dragged on. This is a summary of the facts and I thought it would be a good exercise to see the real decisions prosecutors must make on a daily basis.

On day 1, the female defendant (call her Sara) and her boyfriend (call him Sam) went to an antique store, where Sam robbed a man at gunpoint and pistol whipped him, while Sara orchestrated the getaway.

On day 2, Sara went to her 81 year old aunt's house, saying she wanted to help with her errands. While Sara and her aunt were out, Sara called Sam and told him to steal things while they were out. Sam couldn't get in and waited for aunt and Sara to get home. Sara left the door unlocked when she went in with the aunt and Sam burst in at gunpoint. Sam and Sara duct taped the aunt, and Sam beat her with the gun, choked her, and stomped her into unconsciousness, leaving her for dead. Sam and Sara stole everything valuable from aunt's home and then stole her car.

The aunt survived and identified Sara, but could not identify Sam. Sara confesses and agrees to cooperate against Sam. She leads us to evidence of the crimes to tie Sam to them and testifies against him at trial. Sara has Sam's baby while the case proceeds and actually marries Sam while he is in jail awaiting his trial.

Sam is convicted of robbery and burglary and is setenced as a persistnet violent offender (3 violent felonies in 10 years) to 25 to life in jail.

The aunt wants Sara to have a similar sentence, but the plea deal only allows the judge to sentence Sara anywhere from probation up to 14 years in state prison.

Be the judge and leave a comment or send me an email. What should Sara's sentence be taking into account the horrible crimes, but also that we could not have convicted her boyfriend/husband without her?