Tuesday, November 26, 2013

Sentencing Answer Revealed

Today was the sentencing day. What's that? You don't remember what you were even waiting for? Here's the post to remind you of the case.

But a quick recap of the facts: 

The 16 year old male defendant was a member of a neighborhood gang and entered rival gang territory. He saw a 17 year old female who is associated with the rival gang. They argued and the defendant pulled out a fully loaded revolver while surrounded by seven of his friends. He pointed the gun at the victim's head from three feet away and pulled the trigger. The gun did not go off, which caused the defendant to look at the gun and point it at her head again, pulling the trigger twice more with the same result. The defendant ran away and so did the victim who was unharmed.

The police watched the surveillance video depicting the above events and arrested the defendant 20 minutes later, still in possession of the revolver. The revolver is tested and determined that it works, but the ammo in the gun was not the correct ammo. The gun will fire with that ammo, but not every time the trigger is pulled. It all depended whether the ammo lined up properly in the cylinder when the defendant tried to fire it.

The defendant confessed to the crime, but said he blacked out when he pulled the gun out.

The defendant pleaded guilty to a class B felony and a class C felony, the highest charges he was charged with. The defendant has no prior record and a very involved family.

Possible Sentence:

The defendant is eligible for Youthful Offender adjudication (due to his age), which means the judge can seal his conviction and sentence him to as low as probation and as high as 4 years in jail if given this. The judge can also sentence him without Youthful Offender status and sentence him as an adult, without sealing the case, to anywhere between 5 and 25 years in jail.

Many of you sent your thoughts to me and they ranged from sympathy for the accused and hoping he would get the help he needs to turn his life around to 25 years (the maximum). Some emails provided thoughtful analysis that balanced the need for punishment with the need for rehabilitation, knocking time off for good behavior. Most chose the middle of the road, in the 10 to 15 year range.

In our case, both the prosecution and defense submitted pre-sentencing memos regarding their thoughts on youthful offender adjudication and today the judge ruled. This case was one of the most contested sentencing arguments I have been a part of.

The judge denied youthful offender treatment, but gave the defendant the minimum sentence as an adult of 5 years in jail. Both sides walked away unhappy, which probably means it was the correct sentence.


More like this:

Monday, November 25, 2013

The Police Officer's Conundrum

There is a difficult dance that we prosecutors perform with the police. One would think that we are on the same team and that it would be easy to get along with those on our team. I see officers on a daily basis and have become friendly with many of them outside of my employment. I have great respect for the job that they do.

But it is a different job than mine. A police officer must protect and serve the community. He/she has great discretion in how to conduct an investigation and whether to arrest a person, write a ticket, or come to an equitable resolution. The prosecutor's job is to do justice, and with that we are vested with prosecutorial discretion (more on how a case moves from arrest to prosecution here).

Years ago in my county, the police force and the district attorney's office had a conversation about the investigation of homicide cases. The DA's office was sick of not knowing about a murder arrest or investigation until it happened. The police department did not appreciate the speed it took us to investigate those cases. The police agreed to use the DA's office as a resource during the investigation and discuss the case with the homicide chief before making an arrest.

Over the decades that passed, this discussion has now morphed into a necessity prior to making an arrest in a homicide case. The DA's office now requires the detectives to seek clearance for the arrest before one is made. While technically not a legal requirement, it does make the relationship smoother and avoids the dangerous and embarrassing situation of the DA's office dismissing a homicide arrest.  The problem though? What about when the police believe they have a viable case, but the DA's office does not?

The police only require probable cause to arrest, while the DA's office will not prosecute cases that do not have a chance of conviction. These are not the same thing. Probable cause requires a police officer to have reliable information providing the input necessary to arrest. That reliable information does not always man it would be reliable or persuasive at trial though.

Take this set of facts: The victim picks up the witness in the victim's car. They agree to go buy drugs and meet the drug dealer at a location. The drug dealer gets in the rear seat, and then proceeds to rob the driver and passenger, accidentally shooting the driver to death. The drug dealer runs away and the witness is unharmed. 

If the witness can identify the rear seat killer with 100% certainty, the police will have probable cause to arrest him for felony murder (committing murder during the course of a felony, whether intended or not). But can this set of facts sustain a conviction? A one-witness identification from an admitted drug user? Rarely is there a quick arrest in a homicide case. The police need to investigate and gather evidence. What happens if this case never gets better though? There's no physical evidence at the scene, no phone records exist like a cigarette butt left?  It is solely the word of the witness and that is the only evidence that will ever exist.

Should the DA's office give it a shot? Does justice for the victim demand an arrest and prosecution? Does justice for the defendant and society prohibit it? The police have probable cause to arrest in this scenario. The DA's office will provide guidance and tell the officers what other pieces of investigation need to occur. What if we never consent to the arrest?

Thursday, November 14, 2013

Overcoming Weakness

There is always one complaint about prosecutors who leave for private practice or other ventures. While their trial skills are usually further developed than similarly situated colleagues, their legal writing skills leave a lot to be desired. The reason? If you can believe it, most motions and arguments in criminal cases are boilerplate and ADAs abuse form responses.

That seems odd, doesn't it? Criminal cases where the stakes are so high in terms of individual freedoms  and the attorneys on both sides are relying on decades of materials that other people created. In the civil world, where arguments usually stem from money, attorneys constantly proffer new work and varied legal arguments.

I noticed my own deficiencies in this area a few years ago. What do I do when I notice a weakness? Try to turn it into a strength. I have spent so much time training younger assistants over the last years that I have done away with all the form and boilerplate material that floats around the office and urged others to do the same. The form response does  not allow an attorney to actually understand the law or its technicalities. That doesn't mean I start from scratch each time. It means I actually read the cases I'm citing and tailor my paperwork to actually respond to the legal arguments instead of just relying on work someone else did. The reason I've noticed my writing has improved is because I've spent the last week slaving over a memorandum of law that, as of right now, stands at 75 pages. A memorandum of law is a concise argument stating why the court should rule in favor of your side.

The hearings that created this behemoth relate to four defendants with six different crimes, and over 20 witnesses. In my early days of DA life, before I decided to concentrate on becoming a better writer, I never could have accomplished this task. I would have submitted some half-hearted effort that wasn't well researched and would put lawfully obtained evidence in jeopardy of getting suppressed.

Instead, I am creating something I am truly proud of and will hopefully destroy the arguments my adversaries are proffering, where they are relying on some clear boilerplate language and mine is well-researched and crafted. The memorandum as it stands is too long and will probably shorten a bit, but there were so many issues related to different statements, different identifications, recovery of property, search warrants, entry into homes, and the like that every issue is being litigated.

My writing has improved significantly over the last few years, coinciding with when I began this blog. It was part of the reason I started Prosecutor's Discretion too. I wanted feedback on my writing style. Do people read it? Do people understand what I'm saying? Is it entertaining, informative, clear? By the amount of people that keep checking out the site every month, it shows I must be doing something right.

In the past year I've been published in a legal journal (hopefully more to come of this when I get time) and had a memoir piece published in a local newspaper. Five years ago all of this would have been impossible. What have I done different? Focused on the weakness and absolutely now I know it is one of my strengths.

Now to get some of that fiction published . . .

Tuesday, November 5, 2013

Happy Election Day

What that means to a public servant in New York whose boss is not up for election this year is that I get to spend the day with my family. It's one of the nice perks of government work.

Yes, there are a billion things I should be doing at the office, but how many random Tuesdays does my job give me off during the year? And there will always be a billion things to do tomorrow.

Friday, November 1, 2013

When Asked for Advice . . .

I receive emails all the time from people looking for career advice. Here is part of one email and my response that I hope people find illuminating.

Prosecutor's Discretion, 

I wanted to just say thank you for doing your blog and giving those of us on the outside a glimpse into your world.

I would appreciate any general advice you can give a young lawyer about to start working as a DA.  I've already received plenty of great advice from your posts, but if there are specific things that you found helpful as a young prosecutor or advice you wish you would have been given, I would love to hear it.  

Thanks again.

And my reply:

Thank you for the kind words. With respect to advice, be careful what you wish for because I have a lot to give.

Never say no to an assignment when you are just starting out. Other assistants around you will because they will be too busy and that means they'll be missing out. I learned how to do search warrants and many other great investigative techniques that no one my level was doing just because I said yes, which meant I moved through the office quicker.

Read the statutes. ADAs are notoriously bad at this. They rely on the person above them to teach them. That person relied on the person above them and so on, so that every bad habit and incorrect interpretation of the law is passed down and no one bothers to correct it. Whenever you come across a statute or case, read it. Don't just cite it and assume it says what other people interpreted it as. 

Learn how to leave the emotions of these cases at work. Over 7 years later and this is what I still struggle with and what affects me everyday. You are going to see so much evil in this world and people doing unthinkable things to each other that you have to find something or some place that reminds you that people are generally good. Volunteer with kids or something.

If you want a specific bureau, go for it. Don't be afraid to ask or else no one will know where you really want to go in the office.

With government, it is better to ask forgiveness than permission. Example: I asked to start a devoted hard drive to documents, motions, and law that ADAs could use so that we did not always have to reinvent the wheel and it was "taken under advisement." I started it a month later, quietly, and it is now relied upon by everyone even those that did not want it. Although, you have to be careful and build up a solid repuation in the office before this.

Congratulations on deciding to enter public service. It is rewarding, challenging, and often makes you wonder about the future of humanity, but overall it is worth it. Remember that no matter what happens and what you feel, you must always do the right thing. You represent yourself, your boss, and the people and must act appropriately all the time.