Do I Gotta Come?

This is the most frequent question I hear. It comes from victims, witnesses, and yes police officers. It's on my voicemail, it's over the phone, and it's in person.

This question is especially pervasive in the teenage population, which has become my specialty in recent years. Here's how it normally goes after I answer the phone:

Me: District Attorney's Office

Witness: Someone dropped some paper at my house, telling me to call [the name of the big boss because his name appears on the subpoena].

Me: What's your name?

W: I ain't comin' to court.

Me: Okay, but what's your name?

W: I'm not testifyin' against no one.

Me: Okay, but who are you?

W: Why you want to know?

Me: I need to know who I'm speaking with so I can tell you what is going on.

A long pause.

W: John Smith. I ain't comin to no court.

Me: John Smith. What you have in your hands is called a subpoena. It is the court telling you that you must come. If you don't show up when it tells you, the court will issue a warrant for your arrest.

Silence.

Me: You still there.

W: Why do I gotta come? Don't you have my statement?

Me: Yes.

W: Why can't you use that? Why did I give that statement?

Me: Why don't you want to come?

W: I've got school (or work, or childcare, or they inform me I don't know what it's like on the streets).

Me: Okay. Well, tell you what. Why don't you come down and see me tomorrow. There won't be any testifying. You're just going to meet me in my office and we'll talk about the entire process. You can tell me what I can do to help you then.

W: Tomorrow. What time? I've got school (or work, childcare, etc.)

Me: Whatever time works for you.

W: Okay. I'll be there tomorrow at 2.

I've found that there are two keys to convincing someone to testify: 1) Face to face conversations, and 2) listening to their problems and finding solutions. It is the social work part of the job, and one that becomes more necessary every year. Attorneys must be able to ask questions, but we must be able to listen too.

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It's Not About the Elk

Former Police Officer Sam Carter shot an elk to death while on duty in Boulder, Colorado on New Year's Day 2013.

What happened next started a series of events that led to jurors convicting Carter on June 3, 2014, after four hours of deliberations. Carter killed "Big Boy," an apparently beloved bull elk in the town. He claimed his actions were an effort to put an ailing animal out of its misery and to protect the townsfolk. The prosecution presented evidence that he had planned to shoot the animal and then forged documents to cover it up.

There are plenty of cases across this country where police officers are put on trial for using unnecessary force, abusing their position, or violating civil rights. The results from a few bad apples should not taint the overwhelming good officers, but it always does. In my area, there have been a slew of recent cases reported where prosecutors accuse police officers of violating rights or even tampering with evidence.

It creates a tense working environment in my office. We are the prosecuting agency and rely on the police officers to investigate and bring cases to the office. They then worry the office will indict them for "doing their job" or they want to show their disapproval of the charges and refuse to cooperate with cases.

Carter went over the line and used his position to take out an animal for whatever reason. The people of Boulder demanded justice because Big Boy was constantly seen around town and beloved by these outdoors-loving folks. The prosecutor has to investigate cases where police officers violate the law just like any other person. The effect is that it helps to keep other officers in line and lets the public know we will eradicate the few who commit crimes.

Big Boy stands for the proposition that no one is above the law. Carter's crime in shooting Big Boy is not the main problem in my eyes. He forged paperwork to cover up the use of his weapon after. Every case Carter was involved in might have to be investigated. Did he lie in other cases to secure a conviction of an innocent person? Did he shade the truth a bit to make it more favorable to his story?

Carter failed the people of Boulder, thinking he was entitled to do whatever he wanted simply because he was a police officer. Prosecuting police officers is never enjoyable, but it is necessary to show the public that we won't turned a blind eye just because a man in uniform committed the crime.

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A Difficult Week

Posts have been infrequent these past few weeks as you might have noticed. The reason is simple-work. It has piled up and exploded, particularly this week. One of the rules of this blog is that I cannot discuss pending cases, for both legal and ethical reasons.

I will not divulge facts, but I was assigned the most difficult case of my career this week, emotionally and factually. It's the type of case that makes you wonder why you do this work. Whether it makes any difference. You look around and only see the mangled lives of loved ones in the wake of a violent act from both the victim's and defendant's families. 

I'm not seeking sympathy from anyone. I have a job to do and will do it the best I can. I owe that much to the victim. I've always tried to be honest on this blog and let you all in on a the true life of a prosecutor. It's not always easy. It's not always rewarding. The right thing is not always clear. The system is not perfect and neither are the people in it. But I'm trying to be as good as I can and promise to work as hard as I can for the victim. A victim deserves people who will care. And try.

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Severance, Ugh!

Severed. It was the court's ruling. There are four defendants, all charged with various acts in a string of coordinated crimes. Two defendants asked to be tried separately from the two worst defendants because the more violent acts the worst defendants committed had the potential to prejudice a jury against the two not as violent defendants.

The court agreed. So as I gear up for this trial next week, my witness list tops 111 witnesses right now. I will be flying witnesses in from California, Florida, New Jersey, and Kansas (yes, Kansas!). The court  has already issued four material witness warrants to arrest witnesses because they have not shown up.

The court, two defense attorneys, and myself have blocked off all of February for the trial. And now, due to the court's severance ruling, I get to do it all over again in April. I'm really looking forward to May.

On a different note, I was thinking about tweeting updates from the trial daily, such as how many jurors were selected, types of evidence. There are three concerns: 1) Is it proper? I really don't know. Everything would probably be public so it seems okay. 2) Will I have time? Probably not, but I can get 140 characters out if any of you are interested. 3) Should I?

What do you think?

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Greener Pastures

Lawyers today are different than ten or more years ago. It's a product of my generation, the economy, and the evolving legal profession. It is rare for a new attorney to enter a job and retire from the same one in today's world. We leave for more money, different experiences, to relocate cities, or simply leave the profession together. Gone are the days (mostly) where an associate will work his way up to be a senior associate, junior partner, and then senior partner at the same firm. It's even rarer for an ADA today to retire from the same office they began in. In a good economy, ADAs leave for private sector jobs that will pay more money. In poor economies, the turnover is infrequent but the number of lawyers looking for other jobs remains the same.

I constantly hear the complaint from older attorneys. They complain that attorneys my age don't have the same work ethic, loyalty, and that we expect things to be handed to us. Maybe some of that is true, but it is also a fact that my generation faces deep law school debt and an expensive world.

No matter when a person leaves the DA's office, it is always difficult to see them go. We grew up together in the office, in the trenches. We started making $40,000 a year with more than six figures in debt together, spending nights and weekends trying to learn what we were doing, believing we were fighting for the common good. We laughed at the ridiculous stories that came through the door and cried at the inconceivable harm humans do to each other.

Then, the person that grew into your friend takes another job. The reasons vary--more money, personality clash with supervision, an inability to separate the job from home life--but the result is the same. One more friend walks out the door. Their job is quickly filled by someone else as their files are dispersed to other ADAs.

The ADA that left always misses the office at some point and people that make a career as an ADA point to this to prove we have the best job in the legal world.

I have been on both sides of this. I have left a job I loved with co-workers I cared deeply about and I have seen some great friends leave. It is not easy on either side. Some people take an employee's resignation as a personal attack on the employer. It rarely is. It is just a fact of life. People move on from one place to another in the hopes that the next job will provide what the last job cannot. I am guilty of looking back with fond hindsight of prior jobs, such as a concessionaire at a movie theater or produce clerk at a supermarket. The truth is the people made those jobs memorable, not the work. It's the same in any business. If you are surrounded by amazing people, the job will seem better. Few miss the work. Most miss the people. Being an ADA is a terrific job because of the people inside the building are all working towards the same goals. Once you leave, it's difficult to establish that sense of purpose, that sense of camaraderie, again.

I said goodbye to a great friend and co-worker this week and wish her well. It never gets easier.

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Not the Typical End of the Year

It's December which means holiday party season. As a lawyer in law enforcement here's a glimpse of some invitations I receive annually to celebrate the season:

Bar association, women's bar association, minority bar association, Italian-Americans in law enforcement, my formal office party, my in-house office party, Polish-Americans in law enforcement, police department general party, separate police precinct parties, narcotics party (not the kind of party you are thinking), homicide party, judicial district party, and New York State court officers' party.

Exhausted yet? Try attending even a fraction of them. It's not only a drain on time, but also on the bank account. I truly limit my attendance to just a few and then only stop by to show my face and have a drink with some friends.

What makes it possible to attend even some of these parties is that the court system usually slows in December, which means the overflowing river of work becomes a more manageable stream.

This year I have the biggest trial of my career beginning January 6th. My witness list stands at over 100 witnesses right now and I have not even put the exhibit list together yet. The trial covers a group of men and their violent criminal enterprise over the course of four months. This is the busiest and most stressful month I've ever experienced. Judges love to begin cases right after holidays because they are fresh and that means they do not have to start them before the holiday and possibly affect the days off. That leaves me spending less time with my family this holiday season and not taking any time off.

On the bright side, it provides a great excuse not to attend some functions and save some money.

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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.

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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.

 

 

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The Politics of Prosecution

It has taken me a long time and many attempts to write this post and I am not certain of the reason. Possibly because this post deals with the inner workings of a district attorney's office. This does not deal with office politics or the politics that go into certain plea offers. This post is about the day-to-day life in a political office.

Every district attorney is a politician, whether they want to be or not. They face election every four years by the voters of the county. What that means is that every four years job security is an issue for certain employees of every office. If a new district attorney is elected, he has the discretion to fire everyone in the office, fire no one, or get rid of a select few. I serve at the pleasure of the district attorney. People look at government jobs and think long-term security, but that's not always the case.

I have been fortunate never to work in an office that has seen a contested district attorney election, and I hope that good fortune continues throughout my career. This is a glimpse into the office during a contested election year:

1) Employees receive constant solicitations to fundraisers from all parties running for the head office, which drain the pocketbook.
2) Employees fear political roulette. If they donate to the candidate that doesn't win, does that mean their job will be on the line?
3) Employees sometimes need to assist on campaigns, while abiding by the state rules. It's even worse when the persons running are colleagues who have developed into good friends. You feel you have to support that person, but what if they lose?
4) The rumor mill churns daily about who will stay, who will go, who will get promoted or demoted depending on which candidate wins.
5) Defendants might have better or worse plea offers depending on the elected district attorney.

The daily grind during an election year is wearing. It is generally true that the ones who worked the hardest on the campaigns or donated the most money are rewarded with higher positions in the office. It's a fact of life and not always a bad thing. A person running for office will have friends and colleagues who believe in him or her and will work the hardest for that person. When the candidate wins, they will surround themselves with those they can trust. But to lower level assistants, it will look like the position was bought no matter what happens.

Those that attain the highest positions then have the greatest interest in seeing the district attorney stay in power because they will be replaced if a rival candidate wins. The cycle becomes one of self-preservation and always has a way of trickling down to the lower assistants, who might fear losing a job if a different DA wins election.

Even in non-election years, a district attorney must always think about raising money and the next election. That means unnecessary attention on certain cases and fundraising events every year. The district attorney is not a political office in the sense that it can provide much patronage or favor special interests, but still is required to raise money like a political office. So, who donates? Not the businesses because what's in it for them? Defense attorneys who like the DA's policies and the assistants who want to keep the DA in power either because they like their position or respect the direction of the office or both. Attendance and donations are not required of an assistant, but realistically who is going to refuse when their job might depend on it?

My position is pretty high in my office, but still a few rungs below the power players. I would most likely survive if a new DA was elected, but there is no guarantee I would be doing the same job at the same salary. A new DA fires or transfers the higher-ups, but the assistants who work in the trenches and move the cases through the system are usually safe because someone is always needed to do the work. The question for me becomes do I want to risk getting to the next level and certainly tying my career prospects to the current DA or am I content to fly under the radar and toil in obscurity until retirement.

Ambition has always been a blessing and a curse for me.

So, young lawyers who send me so many emails, make sure you enter public service with your eyes open. It is a great and noble career, but politics always gets in the way as does the pressure to participate, which might not always be subtle.

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It's in the Prep

There is something that is lost in being a prosecutor versus my friends in the private sector. We are both extremely busy, but I am busy on hundreds of cases while they are busy on a few at a time. They are able to thoroughly research, analyze, and prepare an issue or a case for a large chunk of time before the hearing or trial.

Me? My cases need to get prepped, but all my other files need attention in addition to the new cases coming into the queue every day. It becomes overwhelming most of the time. This week I have pre-trial hearings with 5 defendants spanning six different crime dates. The witnesses needed for the hearings alone are already numbered in the 20s (compare this to the most witnesses I've ever called at a hearing before this being 4). The issues range from the 4th Amendment search and seizure, emergency doctrine, consent, plain view, probable cause, flight, Sixth Amendment right to counsel, Fifth Amendment right to remain silent, identification procedures, search warrants, and probably some others sprinkled in for good measure.

Which is why I've put a stop to all my other work over the last few weeks. My boss has diverted new cases away and I've only been able to work on emergencies on other files. It was simply impossible to prepare the hearing and worry about other cases. There are boxes of discovery to turn over, witnesses to prep, photographs to take, research to be done, and sleep to be had at some point. Alas, I am only one man (although I'm leaning on our summer intern pretty hard. Will this scare him from the life of an ADA?)

Think about me this week as I again duel with 5 defense attorneys. If I survive, I'm taking a vacation in August. Who knows, maybe I'll need to take the whole month.

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A Role Reversal

Who makes the world's worst witness? Murderer? Rapist? Perjurer?

Wrong on all counts. The correct answer is a lawyer.

A case required my testimony this week, which meant I had to hop from behind the podium to facing it. It was the third time I have had to testify in my career. The reason for this testimony was  that I accidentally witnessed a confession to a crime (a story for another time when the case is over).

My presence was requested at 11 am and so I dutifully went to the courthouse at 10:50 a.m. with a lengthy book I hadn't found the time to delve into. I was the second witness for the hearing. Noon rolled around and my progress in the book was incredible. At 12:15, they broke for lunch. I returned at 1:15 and waited. And waited some more after that. I read my book, picking it up and putting it down about a hundred times. Even when I was reading my thoughts still wandered. I wondered what was happening in there. How bad was it for the other witness? It was taking so long it had to be a bad sign. What if the other witness and I didn't say the right things? Would I tank the case?

At 3:00 I was called to the stand, ready to match wits with the defense attorney, but thoroughly worn down by a long day of waiting and worrying. The attorney is a friend of mine, which made it more difficult than a stranger cross-examining me. The one thing I noticed is how bad the lawyer's questions were. My main goal was to tell the truth, but so many questions were vague and there is plenty of room for interpretation. I asked for clarification or outright corrected the attorney asking me questions. I slipped up once, using the wrong word and that caused me some grief.

I emerged from the witness stand an hour later, battered and carrying an immense appreciation for what it is like to be a witness before they testify.

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Fifteen Defense Attorneys and One Lowly Prosecutor

Yesterday was a day you dread. It's the cloud that hangs over what should be a relaxing weekend because you know that Monday will be busy and unpredictable.

The reason is that defendants lately are traveling in packs and preying on victims together. What that means for a prosecutor is that there are multiple defendants charged in the same crime and, therefore, multiple defense attorneys to deal with.

The morning session involved a felony hearing where 10 young men were charged in a gang assault that was captured on a high definition cell phone video. All 10 were identified from the video and arrested, which required the need for us to show the court evidence the defendants committed the crime or they would be released from jail. 10 defendants! 10 attorneys cross-examining my two witnesses! And yes it was just as brutal as it sounds.

The successful morning hearing wrapped up at 2:10, which meant I was only 10 minutes late for my 5 defendant suppression hearing for the afternoon. 5 defendants and 5 defense attorneys cross-examining my four witnesses about a different robbery and assault. This successful hearing wrapped up at 4:45. If it had pushed any longer I probably would have collapsed. There was a point where my brain was wandering so much that the judge was staring at me during some of the questioning, until I realized I should be objecting.

After all this, I dropped in front of the TV at home for awhile, something I rarely do. I'm the type of person that keeps busy, but the 15 different prizefights I felt like I was in had sapped all of my strength.

This is what it means lately to be the juvenile crimes prosecutor-young kids traveling in groups and picking off vulnerable targets.

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It's Been a Rough Week

This is obviously the only post this week. The Memorial Day holiday disrupted the schedule. Even in a shortened week though much has happened. This is the kind of week where I am forced to take a step back and wonder how much this job affects me. It also makes me wonder about the future of the human race.

The first event was by far the most emotional. I have never been a part of anything like it and hope that I will never have to again. It was the sentencing of a 24 year old woman after her guilty plea for killing a seven month old child while she drove her car drunk and high on marijuana and cocaine. Even now the sentencing is too difficult to recount, with the child's mother's statement and the tears that flowed freely from the dozens of people in the courtroom. To me, sentencing in a death case rarely brings closure. It's not just two lives that are affected. All we have to do is look at every person in that courtroom to see this case will affect everyone forever, including me. I'm not sure I'll ever be able to talk about this case, but know I will never forget it.

The next event is about an ongoing trial, where a 17 year old is accused of gunning down another teenager at a crowded park in the middle of the day. I am not prosecuting this case, but I did watch some of it because the lawyers on both sides are the best at their jobs. The defendant waived a jury trial and the trial proceeded before a judge only. It disgusted me to watch the defendant laugh, make faces, and flash signs to one of his friends in the audience as the testimony poured forth about a young man gunned down for no reason. Guilty or innocent, the kid had no respect for the proceedings or the fact he is accused of murder.

Otherwise it was a normal week, witnesses making appointments and not appearing, 20 year old defendants going to jail for crime sprees and leaving behind their 5 kids, and the weather is getting nicer which means crime usually increases.

It's been a tough, emotional week. Not all are like this, but the frequency of them increases as you deal with more serious cases in advancing your career.

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It's the Little Things, Like Helicopter Rides

This job does have some perks. Like when you go out to train the police in crime scene collection and they take you for your first helicopter ride.

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The Effect of a Verdict

It was a surprisingly crowded courtroom for a gun case. The defense attorney and I had finished our non-jury trial a few days prior and had returned for the judge to issue his decision. About 20 people filled the audience to watch the defendant, their friend and family member, face judgment. The judge read the guilty verdict.

The courtroom erupted. Yells cut the air. The audience pushed the wooden chairs causing them to rock like Weebles. The rest grabbed jackets and stormed out of the courtroom. I waited for the demonstration to end and the spectators to clear before leaving with the intern who had helped me with some legal issues in the case.

The intern asked, "Do you feel bad? For the family?"

In this case, my answer was no. The defendant had a lengthy criminal history and was a known violent gang member. I truly believe that we saved lives with this conviction.

But the conversation spread into other cases. Did I ever feel sympathy for the defendant or family? Or think jail was not the appropriate outcome? Many times I felt bad, but it depended on the case.

I'm not the type of prosecutor who measures success by the sentence a defendant receives. A jail term is punishment for an act that a victim or family will never forget. Sentencing a person to spend the rest of their life in jail will never bring the murder victim back to life. It surprised me how little closure I felt in most murder cases.

In my first major trial, a 50 year old defendant with no criminal history got drunk and decided to play a prank on his friend. The friend drove a 14 foot box style delivery truck, which was parked on the decline of a steep hill. The defendant climbed into the cab, intending to move the truck to a different spot as a prank. He lost control of the truck, which careened out of control and killed a 4 year old boy and seriously injured his mother.

I'll never forget the defendant's family lying prostrate on the ground, screaming at the guilty verdict. They cried so hard, the mucous was running from their nose. I thought I'd feel a sense of victory at winning that case, but it turned out to be one of the most difficult experiences I had.

It was the same way with my first murder case. A 16 year old was accused of shooting the victim 8 times. Violence had married two families who had never known each other before. In a murder case, two lives are gone forever, but many more are forever affected. The victory and life sentence did not bring warm feelings of success. It seemed irreverent to celebrate.

That's not to say there are not satisfying verdicts and sentences. The defendants who dragged a female pizza delivery driver into an abandoned house and robbed her by smashing her head with a two-by-four. The defendants who robbed six stores by tying up the clerks at gun point. The defendant who stabbed an unarmed kid 9 times causing his death and claimed it was self-defense. Those and many more brought a sense of closure and success.

I'm not sure what the criteria is for a satisfying verdict. I will probably never be able to answer that. The only thing I can answer is that, clearly, all of these cases stay with me. 

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A Valentine's Day Court Story

We finished a non-jury trial yesterday, Valentine's Day. The defendant was on parole for weapons possession and is alleged to have possessed another illegal gun in his house.

We must prove that he "constructively possessed" the gun.  There are two kinds of possession - physical and constructive.  Physical is when you have the weapon on you and constructive is when you have control over the weapon or the area, but it is not on your person.

Since there were only two adults in the house, we were forced to bring in the other adult to say it was not her gun.  So, on Valentine's Day, the girlfriend testified against her boyfriend.  How did you spend your Valentine's Day?

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Is It Ever Personal?

No. Yes. Sometimes.

I'm in a position that sees people commit unimaginable and grievous injuries to other humans. A detachment exists that allows us to see photographs of gruesome injuries and allow police, prosecutors, defense attorneys, and judges to work through a case without taking it home.

Most cases land in my office and travel to the closed pile without any special attachment to the victim or anger towards the defendant. I can treat them like any other case. There are some cases, some moments, some photos, some scenes that will always stick with us though.

Take my first murder trial for example. The black defendant was accused of shooting the white victim eight times in front of the victim's girlfriend. The trial was moved to the basement courtroom, which was the biggest in the building, to allow the massive amount of spectators to watch the trial. The victim was a beloved, albeit flawed, member of the community. The spectator gallery was filled, split right down the middle by race, each supporting a side.

The girlfriend took the stand, in the most anticipated testimony of the trial. She was combustible, ready to explode at a moment's notice. No matter the amount of preparation, no one could control her. She was the type of witness every attorney fears putting on the stand.

She took the stand and answered questions, erupting in tears immediately. She described the decimation of her loss and what it did to her life. Then, when asked to identify the killer, she pointed at the defendant and yelled. She asked him, "How could you do this to me? And you just sit there? You took everything from me." She stared at him, wiping tears from her eyes. The courtroom went silent, except for her cries. No one moved in the gallery. No pens shuffled against paper. The only sound was yelling and crying from the witness stand. A few jurors cried and the judge later admitted that he had to turn away to wipe away tears.

It is moments that usually stick with you, not the case.

But sometimes the defendant, either through the facts of the case or through his actions while it is going on, becomes a nuisance. The longer a defendant's file is with me, the more personal a case can become. Familiarity breeds contempt. By the end of a trial, you can become so invested in the case and certain of  guilt that you do make it personal. You have spent over a year investigating this case and then taken weeks away from your loved ones in order to do your job and show the jury he is guilty. Defendants who commit many violent crimes against innocent victims raise the ire and increase our desire to succeed. It is rare, but there are times I have to remind myself that the case should be treated like any other.

The defendant who obstructs every moment in court by attempting to fire his attorney, spew expletives at the judge, and assault guards are always difficult to remain objective with. The defendant who lies to my face while trying to work out a better deal and cooperate usually gets a special place in my caseload. No matter how hard I try, there are some cases that become personal. It can make you a better attorney, a more zealous advocate. But it can also make you blind and biased in a case. That is why we have to keep a distance and not let any victim or defendant get too close. Prosecutors are supposed to be objective and strive for impartial justice.

It's not always easy. We're humans too.

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Day in the Life of an ADA - Random Tuesday

There are so many fantastic stories that fall on my doorstep every single day.  Defendants, witnesses, police officer shenanigans, courtroom tales, and inter-office pranks.  The shame is that I cannot share most of them because I have to protect the investigations, witnesses, and have an ethical duty not to discuss pending cases.

Guess you'll just have to wait for the book.  (Hmmmm.  Idea!)

But I thought yesterday would be a great example of the much-heralded (I herald it at least) 'Day in the Life' series.

I arrived at work at 8:15 a.m.  Ten messages were already awaiting on my voicemail.  This was an unusual number unless I was returning from vacation, which I was not.  I immediately realized the day would be filled with uncertainty.

Officers started appearing at 9 a.m. for a scheduled grand jury presentation.  None ever arrive at the same time as each other or any civilian witnesses.  That's a problem because it is difficult to present a case to the grand jury if you are unsure any of your witnesses will show up.

It's a short day in the grand jury, so I was done by 10:40, which means I am ten minutes late for my 10:30 meeting.

Somehow eight officers, an attorney, and his client all arrived on time for my 10:30 meeting.  The client spent an hour waffling on whether to participate in the meeting.  When he finally does, the meeting lasted until 1:40.  My cell phone would not stop ringing during the meeting.  I had to keep excusing myself to guide an officer through a specialized juvenile arrest.

That meant a quick bite of my sandwich as I waited for my 2:00 appointment, who showed up at 2:30.  That break gave me some time to return the prior ten voicemails and the eleven more that had piled up since.

My 2:00/2:30 appointment didn't leave until 3:30, and I was lucky my 3:00 cancelled.  I settled in to do some work for an hour and a half before I had to leave.  However, one of my long-term investigations broke open involving many men with many illegal guns.  It is both a stroke of luck and another wrench in an a typically abnormal day.  I spent the rest of the day on the phone organizing the prosecution of the case over the next week.

There were only a few minutes left before I had to leave at 5:00, so I spent them returning phone calls.  The best part about the day?  A defense attorney called postponing our trial that was scheduled to start the next day due to his flu.  No, I'm not cheering the illness, just the postponement.  It was a chance to  get some pressing work done tomorrow.

This job's history guarantees that probably won't happen.  An emergency always comes up.

More Like This:

Day in the Life of an ADA
Night in the Life of an ADA
Life of an ADA - NYC edition - Part 1, Part 2, Part 3

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An Unusual Thank You

One problem with the court system is its inefficiency.  Myself and other lawyers (not to mention defendants) sit in court for hours waiting for their case to be called and wasting time that could be spent on other projects.  It's been a problem for generations of lawyers and has yet to be solved.

But sometimes the waiting allows you to find that rare gem that really makes this job worth it.  It wasn't my case; I was merely a spectator.  But it went something like this.

The defendant stood next to her assigned attorney behind a long, dark wooden table to my left.  The prosecutor stood at the podium that separated two tables.  A probation officer and representative from the DWI court program stood behind the table to my right.  The defendant was being sentenced for a felony DWI - at least two DWIs in ten years.

The DWI court is a referral service for people with alcohol problems.  They receive individual and group counseling, random drug tests, and weekly court dates to monitor progress.  The representative announced how well the defendant was doing in the program and the probation officer concurred.  

The defendant's attorney said a few nice words on her behalf and then it was the defendant's turn to speak.  There are three types of statements a defendant usually says at sentencing: 1) nothing, 2) "I just want to apologize to my victims", or 3) how they no longer agree with the plea.  This female defendant turned to the people on her and my right.

"I just want to say thank you, your Honor.  Thank you for allowing me the opportunity to work with this team.  It is a wonderful team of professionals, and that's what they are professionals.  The prosecutor, the DWI program and probation officer.  I appreciate all of their efforts and thank them immensely for their help in getting me help.  I love my group and look forward to seeing all of them every week.  Thank you."

I rarely hear anyone thanking their attorneys for the work, let alone the staff who are helping to treat an illness.  And this might be the first time anyone has thanked a prosecutor.  We can now add a fourth type of statement.

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Big City / Small Town

The previous series gave you a glimpse into how a big city ADA operates.  Even as I was writing it, I saw the need for a post about the differences between a prosecutor's office employing over a thousand people and one employing just under one forty.

When I left NYC for greener pastures (seriously there are greener pastures here), I thought I'd see smaller case loads and shorter hours.  How wrong that was.

As the number of people in a county decrease, so do the number of ADAs.  Instead of 400 ADAs covering cases for over two million people, I am now in a jurisdiction with 90 ADAs and one million people.  If you do the math, that means more people with less ADAs.  The caseloads were the same, if not bigger.

In many counties throughout New York State, there is only an elected District Attorney and maybe one or two full-time ADAs.  That is two or three people to cover an entire county and handle every violation, misdemeanor, and felony.  Their caseloads are in the hundreds, including day court, night court, grand jury, and trials.  The caseloads are the same.

One major difference was the defense bar.  It was not better or worse, just different.  In a smaller community, everyone knows each other.  Reputation and personal interaction means much more than it does in a bigger jurisdiction.  The same defense attorneys appear on all my files.  Trust is a necessary component to negotiation.  Once an ADA burns or lies to a defense attorney, the ADA will not get any future favors from most other defense attorneys.  And once a defense attorney is dishonest with an ADA that attorney's reputation is dirt in the DAs office.

All it takes is one mistake or one bad day.

In a large city, there are a huge number of attorneys and ADAs.  Courts are constantly putting pressure on both sides to move their calendars.  It leads to a lot of game playing on both sides.  Also, since there are so many people the lawyers run in different social circles.  You never get to know a person is outside of court.  In a smaller community, the bar is more collegial, even spending time together at different social events.

Another major difference is the judiciary.  In New York City, every plea we offered came with strings attached.  If we offered a plea to a lower charge we would also say what the sentence is.  In upstate NY, we simply offer a plea and leave all thoughts of sentencing to the judge.  Judges in smaller counties have more time to be thoughtful with a sentence on individual cases.

There's a huge difference in how cases are tried.  In New York City, defense attorneys relished jury trials because they had a better chance of an acquittal with a jury than with a judge.  In smaller communities, defendants routinely waive their right to a jury trial and have a judge try the case because they perceive a better chance of  an acquittal with a judge.

Finally, it's easier to get things done in a smaller county.  Less bureaucracy.  I can make one phone call and get necessary records within an hour that would have taken me weeks of subpoenas and motions in New York.  Also, you get to know the investigating officers better because you work with the same ones all the time.  I'm able to call them directly to get something done on a case without going through their command.

This has some drawbacks though.  The NYPD has a very strong leadership and hierarchy, almost like the military.  That means accountability.  If I needed to speak with a lieutenant about an issue, that issue would be resolved immediately.  In smaller departments, officers of every rank mix with each other.  The line between officers and lieutenants often becomes blurred. 

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