Cops vs. Prosecutors

Have you heard about the war?  It's been brewing for years.  The one between the NYPD and my former employer the Bronx DA's office.  Here's some history to explain all the links I'll be posting this morning - Bronx DA's indict 20 NYPD officers for fixing tickets and dropping cases, NYPD arrests a Bronx ADA for DWI, Bronx DA stops prosecuting cases where police stop random people in public housing units to determine if they are trespassing.

It's just a glimpse of the tension that exists in the county right now.

I'm off for the weekend to do a crazy adventure race.  So, enjoy the articles to see what is happening in the Boogie Down Bronx.  Next week, I'll address the difficult issue of prosecuting cops and the joys and perils of prosecutors in the spotlight.

Stop and Frisk and here and here
Editorial on Decline to Prosecute
The Mayor's Position
Conviction Rate
Ticket Fixing

More like this:

Decline to Prosecute
Statistics and Animosity

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Decline to Prosecute

It's no secret that I was born in the Bronx.  Well, my legal career was.  My infancy was in the Bronx DA office, criminal court bureau.  There was three weeks of training and then we were thrown into a frenzy of misdemeanor activity.  We can call that the toddler stage.  I transformed from neophyte to an adequate attorney, eventually becoming competent.  Grand jury, vehicular crimes, and felony trials were adolescence.

Complaint room, arraignments, MCP, Part 20, 30, 40, 50.  These were my daily assignments.  The Bronx DA office and surrounding courts were open 365 days a year from 7 a.m. to 2 a.m.  It's not your typical court which mixes perfectly with your atypical area.

I started with 45 colleagues and joined a group of 400 ADAs to prosecute crime in a population of 1.4 million people.  That means one ADA for every 3,500 people (compare that to my current county where there is one ADA for every 10,300 people).  Why so many ADAs?  The Bronx sees more violent crime than any other county (despite huge reductions over the last two decades) and also has an incredible amount of arrests per year.    

An article came last week about the Bronx DA's office complaint room policy of declining to prosecute cases with uncooperative victims.

I've explained in a previous post how a case moves from arrest through trial.  In another post, I discussed how the complaint room works and argued against upset police officers that took umbrage at the Bronx DA for declining to prosecute so many cases.

This is how the complaint room works.

ADAs are assigned to various eight hour shifts ranging from 7 a.m. to 2 a.m.  A supervisor also covers an eight hour shift during the day and ten hour shift at night.  There is also a bureau chief who oversees the operation of the complaint room and arraignments.

The complaint room has since been remodeled.  It used to be a large space cut by makeshift cubicles, slicing the area into private rooms and cubbies.  Some cubicles had doors, some did not.  Some had working computers, printers, and telephones, and some did not.  I actually enjoyed the early shift because it allowed me to get the best cubicle and also to get out early.  The cubicles provided a measure of privacy, but still allowed each person to overhear what was happening next door.

ADAs waited for cases to come through the support staff who screened the cases and placed it into one of two bins - PSNY and victim.  PSNY meant victimless crimes like gravity knives, drugs, or DWI.  As a misdemeanor assistant we were only allowed to screen and write up misdemeanor cases, both PSNY and victim, and all narcotics.  Once I graduated to felonies, we could write up all crimes.

The ADA read through the paperwork and then interviewed the officer, either over the phone if he is at the precinct, or in person if he is at the complaint room.  The ADA is determining whether the police lawfully arrested a person, whether the search meets Fourth Amendment standards, whether the identification is suggestive, and whether the police need to do more investigation.  If it is a valid arrest, the ADA will draft the paperwork for the officer's signature.  If not, the ADA must conference with a supervisor before declining to prosecute it.

In victim cases, the procedure is similar.  Except that after speaking with the officer, the ADA speaks with the victim who has come to the complaint room.  One of three things happen.  The victim tells you he/she does not want to go forward, the ADA decides a crime occurred and moves it forward, or the ADA decides a crime did not occur or there isn't enough evidence and declines to prosecute the case.

The article discusses cases where victims do not appear in the complaint room.  If a victim didnot appear in the complaint room, we sent police officers or detectives to look for him/her.  We call their phone.  We do everything in our power to find them and speak with them.  I have spoken to victims over the phone, in the hospital, and in person, while in the complaint room.  A case only gets declined to prosecute when the victim fails to appear for no reason, we have made numerous attempts to find them, and the crime is a low-level offense.  Serious offenses with evidence other than the victim's word will be written up and moved through the system to arraignment.  Again, this is my experience.

Just one story to share that should give you insight into what it was like to work there.  I picked up a domestic violence case.  I spoke with the officer, who informed me the victim was present with her child in the waiting room.  She only spoke Farsi, but possessed enough English to say she did not want her husband charged with assault.  She wore a hijab and niqab, covering her entire face.  Only her eyes protruded the veil, which showed a purple circle forming around her left eye.  We used a translator service through AT&T, but I had to call into it.  I called the service, finding a Farsi interpreter, from my cubicle while the victim sat in the cubicle next to me on a different phone.  I spoke to the interpreter, who translated and relayed it to the victim next to me.  She politely informed me that she did not want to press charges.  I politely told her she should because this was the fourth time.  She told me, through the interpreter, that she would press charges the next time it happened.  She would wait for the fifth time.  I said the fifth time could mean her children would lose their mother, but she refused to sign any paperwork.  And so it went for thirty minutes. 

So what do you do with a woman who is assaulted every few months?  She would call the police to get her husband away from her for the night, but then refuse to press charges because she doesn't want him in jail.  She wants him home so he can work and make money.  Is it okay to decline to proseute one time?  Two?  What is the correct number when the victim refuses to testify?

We declined.  The victim spoke to our crime victim's advocate who specializes in domestic violence before we made the decision.  The victim decided she would never testify or sign the charges.  Therefore, we had no evidence.  And so is it right to keep a person in jail with no evidence?  Even though he is an abusive husband?  Do we prolong the case through the system when the end is already written?

Obviously I still think about it.  I hope she's okay and that there was no fifth time, although I suspect there was.  It's odd the cases that trail in my subconcious, springing forth like the villian in a horror movie while I'm trying to sleep.

The numbers do not lie.  The Bronx declines to proscute more cases than any other borough.  Cases drag through the court system and victims' emotions pass through a spectrum, ranging from initial anger to an ultimate indifference when a case comes up for trial two years later.  There are methods such as subpoenas and warrants that are used in more serious cases.  But if the victim never wants to cooperate after speaking with the police, the DA's office, and crime victim advocates, should a low-level offense be forced through the system until it dies on speedy trial grounds?  What would that do to a system that is already operating every minute of the day to handle its current workload?  And the ADAs and public defenders who barely keep their head above water on cases where victims are actively involved?     

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Day in the Life of an NYC ADA (Finale)

Check out Part 1 and Part 2.

Lunch was spent calling the officers for the surprise trial I was starting on Monday.  Thankfully, it was a gun case, which required no testimony from civilians.  I just had to pray none of my officers were on vacation.  They weren't and I started to feel better about the day.

The officers I had sent to scour the streets of the Bronx returned at 2:00 with the eyewitness.  He was unhappy and angry.  He sat across from my desk and refused to testify.  I told him I'm putting him into the  grand jury and asking him questions.  He swore he would not answer any because he "ain't no snitch."

I stood up and closed my office door.

"How old are you?"  I asked.
"Twenty-two," he said, looking out my window.
"Any kids?"
"One and another on the way."
"Well, that boy that you watched almost die on the streets is eighteen.  He has a one year old and wakes up every day thankful he can see his daughter again.  The next person that this guy shoots may not be so lucky.  And you can help stop him today.  You can save someone's life.  Maybe yours."
My twenty-two year old friend just nodded.

It was enough for me.  We walked across the street to the grand jury.

I informed the coordinators that my defendant was indeed testifying.  We called it a waiver.  That's because any witness who testifies in front of a state grand jury is given immunity for any topic they testify about.  In order for a defendant to testify, he must bring an attorney and agree to waive those rights both orally and in writing.  If he didn't and he testified, we couldn't prosecute him.

The coordinators were gracious and let me cut in line with my eyewitness.  He turned from hostile to hesitant.  I spent ten minutes asking him questions and the police then took him home. 

He shook my hand before he left.

It was 2:30 p.m.

There are two kinds of waivers - in and out.  An out waiver means the defendant is not in custody.  An in waiver means he is.  In waivers always happen in the afternoon because court officers needed to escort the defendant into and out of the grand jury.  Their morning was full of other responsibilities so the afternoon was the only time.

I informed the court officers that I was ready for my in defendant.  Other ADAs jumped the line to get their cases into the grand jury before my waiver.  Waivers routinely took a long time.  With witnesses, I wanted to put only enough testimony in to meet my burden in the grand jury.  That meant brief questioning.  With defendants, they had an opportunity to speak and then I was allowed to ask questions.  This was always expansive.  Then, the grand jury would vote on the case. 

It was 3:30 when I saw the court officers enter the elevator that leads to the lock-up.  I always wondered what happened to the hour between the time I told them I was ready and they went to get the defendant.  It's like a magic act.  You can't know all the secrets.

4:00 and the officers brought the defendant up.  He spoke with his attorney briefly and the attorney told me the waiver was still on.

4:00 on a sunny Friday.  The grand jurors were required to stay until 5:00.  If the waiver went without problems, it would end around 4:45.  Then, the grand jurors would vote the case.  This would put them past 5:00.  And that was if no one else had to rush a witness or a vote in before the weekend.  I followed the defendant and his attorney into the grand jury.  The line of assistants sitting on a skinny window ledge outside the grand jury chambers told me 5:00 was a pipe dream.

The defendant placed his left on the Bible and raised his right.  He swore to tell the truth.  He answered my litany of questions, agreeing to waive his right to immunity.  He made his thirty minute statement about the case.

I'd done enough waivers to know how they all began.

"My name is _______.  I'm only ______ years old.  Please excuse me because I'm nervous.  I didn't do anything.  I work at ______.  I've got _____ kids and take care of my sick mother."

The defendant claimed that he was merely a witness, not a participant.  He said he saw the shooter, but didn't get a good luck at him and definitely didn't know his name. 

In response to my questions, he said he didn't come forward to the police because he didn't want to get labelled as a snitch.  He didn't know the victim or eyewitness (even though he and the eyewitness grew up across the street from each other).  He admitted his prior crimes, but said he always "copped to what I did.  I didn't take a plea here, cuz I didn't do nothin."

No Perry Mason moments.  No breaking down and admitting everything.  It was a routine waiver.

It was after 5:00 when the defendant left the grand jury.  One of the coordinators was outside.  I knew what was coming.

"We've got two cases to vote.  They'll be quick.  Let them go first, then you go back in and vote."

I nodded and gathered my things from the chambers.  I counted the grand jurors - 20.  I needed at least 16 to take a vote.  And of those 16, 12 had to agree to indict. 

The two votes were quick, but still took 20 minutes.  It was after 5:30.  Two grand jurors left.  I was down to 18 remaining.

I walked back in and all 18 were gathering their belongings.  It was a collective groan when I reappeared.

"Please, I'm your last vote.  Please stay and get this done."

One passed me without looking.  17.

They eyed me as I stood in the doorway.  They sat down.  I read the charges to them and they deliberated.  It was 6:00.  These citizens conscripted to serve were working overtime for no pay.  I appreciated every second of it.

A knock came at 6:15.  They asked me to re-read the charges.  That meant some people were thinking about dismissing the case.  I re-read them and went back out with the stenographer.  I made a few jokes as we waited.  Mostly, I paced. 

The door opened at 6:30.  One more grand juror leaving.  I was down to 16.  If another one left, there could not be a vote and I'd have to release the defendant and recharge the case next week. 

6:45 and the door opens again.

"True bill," the foreperson said.  She looked tired and had gathered her belongings.  She wasn't staying one minute later.

They filed out solemnly.  I went back to the office and changed into my sneakers, leaving the paperwork that comes with a grand jury indictment until another day.

I was returning to the office the next day anyway.

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Day in the Life of an NYC ADA (continued)

Check out part one here.  The series concludes on Monday.

The courtroom was three floors below the grand jury.  Sunlight bled through the windowed hallway assaulting me and mocking me at the same time.  The sun seemed to know what kind of day I had in store.

In movies there is always a dramatic moment when someone expected pushes open the double courtroom doors.  Pulling a door open doesn't have the same effect.  But when I entered, the judge looked up from the bench, smiling.

"Mr. Prosecutor," he said, ignoring the case currently on the record.  The judge did use my real name, however.

I smiled back.  "Here, your honor."

The judge directed the attorneys he was speaking with to step aside and the clerk to call my case.  I stood behind the wooden table.

"Mr. Prosecutor, I'm sending your case out to Judge Smith, forthwith.  The defendant is ready for trial."  This judge ran what was called a calendar part.  He simply churned through cases and either resolved them or sent them to other judges for the trial.  His caseload stretched into the thousands.

I looked at the defense attorney who fourteen hours ago told me he would also be requesting an adjournment.  He refused to look at me.  I contemplated telling the judge I was ready for trial and watching the defense attorney try and back out of it.

I decided against it because my reputation was worth more than playing that game.

"Your Honor, I'm sorry, I'm not ready for trial.  I am in the middle of a grand jury presentation as my colleague told you earlier.  Also, Mr. Defense Attorney told me last night he was seeking an adjournment too."

"Well, Mr. Defense Attorney has had a change of heart apparently.  You're going to trial.  You can take up all your issues with Judge Smith."  The judge smiled at me again.  "Judge Smith loves to hear excuses."

Laughter erupted from the gallery.  Everyone joined in the fun the judge was having.  The conservative Judge Smith did not tolerate excuses.  Judge Smith was the judge I would love for my trial, if I was ready.

It was time to push back.  "Judge, except for grand jury, I'd be ready for trial.  How about this?  It's a Friday anyway.  Can we ask Judge Smith to start the trial on Monday?  I will have my witnesses here and we'd only lose one day."

The judge leaned back.  He saw what I was doing.  He asked the clerk to call Judge Smith.  Judge Smith must have agreed.

"This case is scheduled for trial on Monday in front of Judge Smith.  Case adjourned and the time is chargeable to the People."

I stared at Mr. Defense Attorney who cast a sideways glance towards me.  Other attorneys moved to take our place.

"Judge, Judge?"  Mr. Defense Attorney stammered, holding his phone in his hand and his glasses were perched on his nose.

"What is it?"

"I can't do it.  Looking at my calendar, I'm scheduled to start another trial in Manhattan on Wednesday next week.  It's an older case."

Shrewd move, using another borough to delay a case.  I suspected Mr. Defense Attorney did not want to try a case in front of Judge Smith.  The judge stopped me before I spoke.

"Mr. Defense Attorney, you stood there for forty-five minutes and didn't say a word about this trial while I found you a courtroom to try this case.  Now it comes to your attention?  I think you'll have to speak to the Manhattan judge and explain that you're already on trial in the Bronx.  You'll see Judge Smith Monday."

The judge winked at me before I left.  I took it to mean "well-played."  I didn't stop to speak to the defense attorney.

It was going to be a long weekend too.

I went back up to the grand jury where I found my victim waiting for me.  11:00 - only two hours late.  Still no eyewitness though.

The police called my phone and said they knew where the witness was and they would be bringing him in.  I decided to put the victim into the grand jury and then see if the police showed.

I waited in line to get into my original grand jury.  I used to be first in line.  The grand jury coordinators promise to sneak my suffering victim in before lunch.  These were the special privileges getting shot in the head grants you.

The grand jury was made up of three rows of stadium seating.  It was a private chamber.  The only people allowed in are attorneys, grand jurors, stenographers, and witnesses one at a time.  Defendants, defense attorneys, and judges are not allowed to view anyone's testimony.

It was 12:55 before we get in.  The grand jurors were grumbling and checking their watches.  This was their second week, so they knew the drill.  1:00 was lunch time, but cases routinely went over.  We finished testimony at 1:10.

The grand jury broke for lunch and I checked my messages.  The attorney for my shooting defendant in grand jury called and verified his client was definitely testifying after lunch.

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Day in the Life of an ADA - NYC Edition

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. 

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Statistics and Animosity

Check out this article from the New York Post.

You'll remember in a previous blog post I talked about how a case moves from crime to trial. The New York Post article provides a good illustration of the path I discussed in action.

The article says that the Bronx District Attorney's Office (BXDA) threw out 17.3% of the 43,520 arrests from January 1 through July 22 of this year. New York City's system is a different beast from the rest of the state so please allow me to explain a little. I've been a prosecutor in NYC and outside of it and am speaking from experience in both systems.

In NYC, the police make an arrest and the case is required to be brought to the BXDA's Office for processing. This is unlike the rest of New York State where the police make an arrest and do all the processing without notifying the District Attorney's Office.

At the BXDA, ADA's are waiting in the complaint room to draft the charges and file the paperwork. The ADA's speak with police officers and any witnesses the police bring. Victims are usually required to come to the complaint room and speak directly to an ADA before a case will be drafted. There are exceptions of course in serious assault cases. A large number of cases that come through the complaint room are "victimless" crimes, where the police see illegal activity and make an arrest (drugs, DWI, weapons).

An ADA's job in the complaint room is to screen the case. We look for: 1) whether the police acted legally in securing evidence, 2) whether the victims are cooperative, 3) and whether we can prove the charges beyond a reasonable doubt, among other things.

The People decline to prosecute a case for a number of reasons - a search and seizure that violates a person's rights, a victim doesn't want to pursue the case, or there is simply not enough evidence yet. In many cases, drugs or another weapon are found on the ground and no one saw who put it there but the people standing by it are arrested. This is an example of a case with insufficient evidence of possession. Any case an ADA declines to prosecute is approved by a supervisor, a second pair of eyes.

The officer who fumed that the BXDA is "letting dangerous people back out on the street again and again, instead of making even the slightest effort to build a case against them" should think about the role of a police officer. ADA's routinely send officers back out on the streets after screening a case and before filing charges to gather additional evidence, find additional witnesses, or to conduct additional questioning of a defendant. The mentality should not be to arrest and charge first and investigate later. It should be to investigate first and then arrest.

An investigation obviously continues after the charges are filed and continues through trial. But that is generally subpoenas, search warrants, and gathering records. The brunt of the investigation should be done prior to an arrest.

The role of a District Attorney is to do justice. It is not to send a message to a certain person, prosecute bad guys with no evidence simply because we know they are bad, or to prosecute people where the evidence will be suppressed because the police acted illegally. Declining to prosecute a case is a difficult decision and I applaud the men and women who have the courage to get rid of a case before the legal system grinds a defendant into its slow-moving gears for a case that cannot be sustained.

I try not to monday morning quarterback police officers either (If any of you are reading I really do try). They are the ones on the street at midnight dealing with gun-toting drug dealers or walking into explosive domestic situations where both parties are drunk and wielding knives. They must make instantaneous decisions without the benefit of getting legal guidance. Mistakes are sometimes made in those split second moments and a judge with the benefit of hindsight can call an officer's action illegal. My goal is to instruct the cops the extra steps to take when the situation invariably comes up again.

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