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!

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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.

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Another Prosecutor Joins the Fray

An anonymous prosecutor who bills him or herself out as a "young prosecutor trying to do what's right" has a tumblr blog providing much needed humor into our criminal world.

Check it out at

http://whattheprosecutors.tumblr.com/


And the blog that provided the inspiration for it:

http://whatthepublicdefender.tumblr.com/

Have a good start to the summer!

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How To Make a Decision

How do you make a life-altering decision? Maybe you weigh the pros and cons. Write a list and see which column has more. Talk to your family and friends and get their opinions? Or maybe you just throw the choices in a hat.

Would you let strangers make the decision for you? 

That's what Mike Merrill is doing. He sells stock in himself and then has those stockholders vote on every decision he makes. The decisions range from whether he should wear only Brooks Brothers shirts to whether he should break up with his girlfriend.

I always applaud creative and unique ideas, especially ones that are geared towards building a business. Merrill says he does it to to keep himself accountable. He just has to hope that all these people have his best interests at heart. But I suppose that's the idea. By getting people to risk money, they have a vested interest in seeing him succeed. It is arguably a good way to force him to take classes or perform other tasks to advance a career that he might not otherwise do.

It seems most people would love to buy into this strategy. This way we get to tell someone else what to do. And isn't it easier to make decisions for someone else? It's the do what I say, not what I do thing.

So what decisions would the world make for me? It's amazing to think about my life and how one decision could have changed everything. Would I have a different job? Live in a different city? Be the world's most successful rock star? 

The problem will come down to free will for Mr. Merrill. There will come a point when he is told to do something that he doesn't want to do by his stockholders. It might be something unethical or something that is totally rational that interferes with our irrational feelings, like love. The interests of a group of people in increasing the value of their investment will conflict with the interests of an individual who is looking to enjoy his life.

And then, he will have to make his own decisions.  

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It's Tough to be a Defense Attorney

     "I don't want to bash Mr. Smith. I'm sure Mr. Smith is an excellent lawya," the defendant said.

     "Then what is it," the judge asked.

     I turned toward the defendant who was pulling the handcuffs into his waist so that the chain didn't land on the table. He leaned into the microphone again, making a crescent in his orange jumpsuit.

     "I just want a new attorney. Someone other than Mr. Smith."

   
     "Okay, why not Mr. Smith?"

   
     "I just don't want to bash him. He's a good guy, trying to do the right thing. He just don't even know some things that I told him."

     I had a long history with Mr. Smith. He's one of the most respected attorneys in the area. I was sitting ten feet from where he was standing and cringing as his client was about to use him as an excuse in front of the judge.

     "Like what?"

     "Like this appeal thing. This article 78. He didn't know about it or think we would win."

     "You didn't win. He was right. The Appellate Division said there was no merit to the claim and wouldn't even allow him to submit paperwork on it."

     "But, he just don't be doin what I tell him."

     "His job isn't to do what you tell him. It's to provide you with representation. You are working with him and that's great. He just can't go filing paperwork that has no chance of success or make frivolous arguments because you want him to. Because you want to delay the trial."

     "Yeah, but. I just want to have a new attorney."

     "No. He's the best in the county. You have the right to an attorney, not to the attorney of your choice."

     I nodded in agreement. These are the moments I'm confident I cannot be a defense attorney. Even when you are one of the most respected attorneys and provide accurate advice, it might not matter. A defendant who wants to delay proceedings or blame someone else, usually blames their attorney first. Now the defendant will start bad-mouthing him to all of his friends and that might hurt his relationships with other clients.

     This was the third such attempt the defendant had made to get rid of his attorney, even trying to represent himself at one point. To his credit, the attorney told the court and his client that he would continue to work with him and that they had very good communication. Most attorneys would just get fed up and jump at the chance to get off of a case with a difficult client like this one. This attorney was older and wiser and realized this defendant needed him to fight these serious charges.

     The court kept the attorney on and he worked out a fantastic deal for his client that would never appreciate it.

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Getting Inked

In my line of work, tattoos can make or break a case. A witness might remember a very distinctive tattoo on someone's arm that can help identify the person. Or the witness might say the suspect had no tattoos and since the defendant has plenty of him, it might be a misidentification.

I get that people like them and want to express themselves through them. What I will never understand though is face tattoos. Full disclosure - I don't have any tattoos.

It's a disturbing trend that I see everyday. Gang members, usually 16-18 years old, appear in court with a still glistening tattoo on their face. The ointment to help soothe the skin is still fresh and they've picked up a new case. Around these parts, a person doesn't get a face tattoo until they "put in some work," meaning they shoot someone. I'm not talking about the teardrop tattoos back in the day. These are full and recognizable symbols, much like the Mike Tyson tattoo, which are usually given at a tattoo party. Heard of Tupperware parties? It's much the same. A group of people get together and a tattoo artist inks everyone up for a fee.

What prompted this article was this story about a tattoo artist covering up gang tattoos for free. I applaud and appreciate his efforts. But what about the child who has now ruined any chance for a normal life by stamping his face with his neighborhood gang? Every good job is now off the table and with it any hope for a life off of the streets.

Don't the people realize that they are also branding themselves as an easily identifiable member of whatever gang symbol they put on their face? It's another product of our social, familial, and educational system that these children are choosing a path they can no longer leave at such a young age. To this day, I'll never forget my father telling my brothers and me we can get tattoos the day we started paying him rent. Is that the reason I never got any tattoos? Small statements like this mean a lot to help guide a child through life.

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Sign of the Impending Apocalypse?

Thought I had to share this sign, which hung in the front window of a defense attorney's office. I found it here.

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A Lesson in Apathy

In our eternal battle against perceived snitching, I received another lesson in reality.

Here's the relevant portion of a conversation:

PD:  You're going to have to testify.
Witness:  I ain't snitchin.  I ain't the one that got shot.  I been shot four times.
PD:  Did you ever tell the police who shot you?
Witness: No.  I ain't tryin to put no one in jail.
PD:  You think that's right to just let everyone out on the street solving their own problems with guns?
Witness:  Don't mix me up in this.
PD:  So no one should ever call the police?
Witness:  No.
PD:  What about these families with young kids getting killed or hurt when people shoot or their houses getting broken into all the time.  Everyone knows who is doing it.  Should they call the police?  What should they do?
Witness:  Move.

More like this:

The Law of Snitching

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Scantron, Touch Screens, and Pot

Anyone remember these forms?  It was called a scantron sheet in elementary school and high school.  I remember practicing to completely fill in the bubbles so that the computer could read it properly.

And apparently not much as changed.  As I signed my name to vote, I was handed a manila folder with a sheet of paper inside.  I took it to a long, wooden table, containing three-sided cardboard dividers  that would make Jeopardy! cringe.

It seems that we have inched backward from the polling machines with the curtains and switches.  Isn't John King on CNN touching a television screen and reading real time votes being counted?  Yet, I'm still using a scantron form to vote for president?  There were stories that Florida precincts ran out of paper ballots and had to photocopy more.  What are we doing?  Why can't we figure this out and get into at least the late twentieth century?

In other news last night, two states have voted to legalize recreational marijuana use.  Colorado and Washington become the first states in the union to legalize it.  We will see what the future holds and whether this is a trend or isolated state issues.

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Hurricanes vs. Snowstorms

I live in a town whose reputation was built on snow.  Once every twenty years a huge snowstorm will hit, piling up drifts over ten feet high and shutting the city down for days.  It is very infrequent and most winters are mild with just enough snow to make the ski slopes pleasant but not enough to create problems.

As Hurricane Sandy (or Frankenstorm) approaches the East Coast, I wondered what I would rather battle - hurricanes or snow.  Maybe we can throw in mudslides, tornadoes and wild fires too.  No matter what area of the country you live in, mother nature has some danger in store for you.

New York State will be battered by rain this week, which means everything will take twice as long.  For me, it means I don't have a lot of time for my planned post today.  So I figured I'd put a survey together.  If forced to live in an area with natural disasters, which would you rather face?

Good luck to everyone facing Sandy and stay safe!

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To Represent Yourself

My internet went down yesterday, which forced me to postpone today's planned post.  Here's a hint for what comes on Monday:

Another thing to look forward to Monday?  Remember when I was appointed as a special prosecutor in a different county?  Well, turns out the defendant wants to represent himself.  On Monday, the court will spend an hour questioning him to determine his capacity to do it.  I'd advise against it when the charges are robbery, burglary, kidnapping, and attempted murder.  The issue I find in defendants who wish to represent themselves is an arrogance and a perceived slight.  They eschew the advice of great attorneys because of a belief in their superior intelligence.  This will be the third time my adversary was the defendant himself in a serious case.

It usually happens when the defendant is unhappy with a court procedure, or a perceived miscarriage of justice.  They are upset the bail was not lowered, suppression was denied, or they now say they wanted to testify in the grand jury.  Their attorney tells them that what happened was legally correct, but they refuse to believe it.  In my last experiences, the defendant has focused so much on the issues that are unimportant to a trial that they've walked themselves into a conviction.  Although the evidence in those cases was overwhelming too. 

It will be an interesting way to start the week.

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Closing Ceremonies Doesn't Mean It's Over

From the Urban Dictionary:

1.	Wonderwall	1370 up, 311 down
	A barrier which separates the mundane from the Transcendent Reality. A true Wonderwall will always have a crack, or a slit or an opening which allows anyone a glimpse of what lies beyond the Wonderwall. I peeked through the opening of the Wonderwall and saw a dim glimmer of Krishna.

Over the last two weeks, I've been transfixed by the Olympics.  This isn't the first time, but it's the first time I've really understood them.  Or understood why I was so transfixed.  It's the dedication.  It's the sacrifice.  I truly appreciated each athlete and what their dedication to excellence means for themselves and for their country.

And it started me thinking.  An Olympic athlete decides that they want to be the best at an early age.  They find something they love and spend their life perfecting it.  They sacrifice time with friends and family.  They choose kale and swiss chard over a burger and fries.  Maybe even a green shake in the morning filled with spinach over pancakes.

The band Beady Eye (made up of former members of Oasis) played at the Closing Ceremonies.  They performed their hit Wonderwall.  My wife asked what a wonderwall was.  Neither of us knew so she asked Siri, who led us to the urban dictionary.  And that was the above definition.

Once I heard it, I realized how perfect the song was for the Closing Ceremonies.  That's what the Olympics are.  It is a wonderwall.  It allows us ordinary folk to view the transcendent through the cracks in it.  It shows us what is possible if you have goals and the will to achieve them.  

The older I get, the more I realize what's important in my life.  I am a goal oriented person.  Every year I write a list of personal and family goals and how I'm going to achieve them.  Some I achieve, some I don't.  I will never be an Olympic athlete, but I can show that Olympic dedication in my ordinary life.  Dedicate myself to my family and friends.  Dedicate myself to the work.  And this past year, I've dedicated myself to writing.

It's something we can all do.  Dedicate yourself to what's important to you.  You'll soon realize that true happiness comes when you are doing what you love, and dedicating your time and life to it.  Choosing the items that are important over those that used to be important won't even be a sacrifice then. 

I've got a renewed dedication to my goals.  I want to look back with joy that I spent my time with the people I loved doing what I loved.  Stopping a lifetime of regrets starts with deciding what is important.  Once that is decided, your choices will be guided by these goals.  What others will consider sacrifice, you'll call dedication. 

Want to run that first 5k?  Well, you'll have to spend time running and eating right.  What about that new job?  Spend the time researching the job market and possible opportunities and maybe avoid checking those last links on espn.com.  Work on the marriage?  You'll have to cut back on softball and bowling leagues or ask your wife to join.  Get out of credit card debt?  You'll have to say no to some dinners with friends and those new clothes.

But it's all worth it because you've seen the wonderwall.  You've seen the joy on the other side and what can be accomplished with a little sacrifice.  So, enjoy Wonderwall by the original creators:   

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Lesson Number One

I've been traveling for two days and am teaching at the police academy this morning so I don't have much time for a post.  I'll be back this Friday with a recap about Jared Lee Loughner.

The first thing I'll teach this morning?  Someone is always watching:

  

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The Olympics and Productivity

Out of town guests, a wedding, and the beginning of the summer Olympics converged to form an unproductive weekend.  I do not watch much television, but hours spent glued to the tube do not seem wasted when watching doubles badminton, archery, or ping pong (Admittedly, I watched all three this weekend in addition to the major sports).

It's a little like my yearly hiatus from productivity during the first four days of March Madness.

But how can you blame me when you get to watch this?

So the planned posts will be coming later this week.  At least I hope they will - fencing, water polo, handball, trampoline, and wrestling are still on the Olympic docket.

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The Cost of Law School

It's hot and there are not many people in the office this week.  I enjoy working when court is down and attendance is sparse.  I'm off to take care of some nagging files and clean off my desk.

Please check out these articles on law school, loans, and the job market.  I'll put my thoughts on the issues next week.  Have a good week and try to stay cool.

The Chicago Tribune

The Wall Street Journal

The Star-Telegram

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May I Approach?

City Court is a different breed of animal.  It's the court that handles misdemeanors and violations.  Rules of law and procedure are relaxed in favor of rules of fairness.  The dress code surprises you every day.  See here.  Apparently, even the court officers get into that relaxed mode.

Generally, the public sits behind the three foot wall until their case is called.  They can approach and check in with a court officer, but must return to their seat.  Only attorneys and police can walk into the arena.

There was a lull between cases while the court waited for the sheriff to produce inmates.  The judge read his computer.  The court officers turned to their cell phones for distraction.  An enterprising spectator walked through the opening in the wall and up to the clerk's table, removing his file from the pile and returning to the audience and out the door.

No one stopped him or said anything.  The clerk discovers the file is missing and everyone pieces together what happened.   

The next case is called and the ADA asked for permission to approach the bench where the judge and clerk sit.

The judge replied, "go ahead.  Obviously, no one's going to stop you."

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They Told Me I Was Special

There comes a time in every prosecutor's life when they must hear this.  For me, it came from the big boss himself.  The one who does the hiring and firing.  And compliments like these are not to be overlooked.

"Hey, do you wanna be a special prosecutor in (blank) county?"

What that means ladies and gentleman is that an adjoining county has a conflict in a criminal case.  Due to the conflict, the judge in that county ordered the appointment of a special prosecutor.  So because my name was pulled from a hat or I was in my office at the right time, I am now a special prosecutor in a different county.

It is a very interesting case that was reversed by the appellate division after the first trial partially because the police obtained a DNA sample from the defendant by using a taser.  (Apprarently that's wrong?)  I wish I could say more, but I risk crossing one of the two rules I operate under.  All I can say is that one of the attorneys on the defense side for the first trial is now a prosecutor in that county.  The appearance of a conflict was too much for the court to overcome.

I'll be spending many a day making the long trek North and trying a case in front of a judge I've never appeared in front of.  I'm certain the judge will have quirky rules that I'll run afoul of within minutes of entering the courtroom.

It will be a unique experience.  The courtrooms I opereate in now are located in the same building as my office.  My travel involves just an elevator trip down.  Looks like I'll get to experience the life of a defense attorney and civil attorney, who must lug all their boxes and exhibits to court each day.

I'll keep you posted as things develop and give a full recap of the case once it's over.  Unfortuantely, the trial isn't scheduled until October.  Patience is a virtue, they say.

How do you refuse a compliment like this?  These are the compliments that come through work.  Do a good job and your reward is more work, higher profile cases, and more at stake for a loss, all for the same pay.  It's the joys of a public servant.  Still want to be a prosecutor?

I'll never forget telling my brother, the police detective, about my first promotion.  I was joining a supervisory role over new ADAs.  This was his quote:  "So, they are moving you from your own office to one you will now share with three others.  You'll have more work and longer hours.  Are you sure they didn't say demotion?"

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Innocence, Bullies, and Humanity

We've had lots of great questions for Carrie Wood from The Innocence Project.  I'm sending her the questions this weekend so either comment or email today.  See here.

On a different note, the below video is disturbing.  A person always feels stronger in a group and sometimes that group is downright evil.  I've previously posted on the mob mentality.  Below is another example of it, with a twist.  Middle school kids ganging up on an elderly bus monitor.  Be warned - there is foul language and it will make you physically ill.

But the worst in humanity brings out the best humans have to offer.  At last count, donors have sent over $400,000 to Karen Klein on the website indiegogo.com.  It started as an effort to send her on vacation, but is quickly turning into a retirement fund.  Check out the efforts.

There should be a follow-up story on what the punishment is for these kids.  Both from the school and parents.  It is shameful behavior and not a good way for upstate New York to obtain the national spotlight.

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Scott Walker, the Recall, and Twitter

This isn't about politics.  This isn't about public unions.  It's not about Democrat or Republican.  It's about civility.  This is about the reaction following Governor Scott Walker's victory in the recall election last week.

In today's world, anyone can create a pseudonym and become an anonymous online face.  Or even if they don't, everyone has instant access to sending their views to thousands or even millions of people with a mouse click.  Many use this technology to provide thoughtful views and information to the public and their followers.

Then, there are the others.

Any website that allows public comment (including this one) has commenters that run the gamut of insight.  These comments run from thoughtful and hopeful to start a debate to insulting and looking for a fight.  One such comment on this site suggested prosecutors should burn in hell.

Twitchy.com is a website that follows popular tweets and trends in the Twitter universe.  Immediately after Scott Walker survived recall, angry tweets came fast and furious.  Check them out here.  Death threats and prayers for serious injury toward someone are simply unacceptable.  Even in politics. 

These comments and reactions to stories and events are the lowest form of communication.  Anyone with a computer and email address can create an anonymous personality and spew hate from their mouth at anyone without fear of recrimination.  What happened to intelligent debate and respect for an opponent's viewpoint?  It seems that today's world is an act first, think later society.  Just think of the people who hit reply all instead of reply to one.  People have no problem announcing their first, visceral reaction to an event, no matter what it is.

The legal view - There's a line between First Amendment rights and behavior.  A person cannot yell fire in a crowded theater because of the inherent danger created by causing a stampede of people.  Death threats towards governors and presidents will raise a flag and someone will investigate, even if it was a joke.

The practical view - What are these people thinking?  Especially people on twitter who use their real name and picture?  Employers investigate a person's online profile now.  Police and prosecutors investigate suspect's facebook and twitter accounts.  All of this will come back to haunt the commenter.  Or the person that posts a picture of himself with guns or drugs.  Or the person that admits to a crime.  Or the person that threatens a victim.

Trust me, I know.  

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Focus Group

I was speaking with a friend of mine recently.  She is a civil law attorney.  Specifically, she handles personal injury cases on the plaintiff side.  She told me about a focus group she was running before her next trial.

As I understand it, the attorneys for the injured person hire a group of citizens who represent the potential jury pool.  Then the attorneys spend a few hours laying out their case and getting feedback from the focus group.  Strengths, weaknesses, pitfalls, what types of themes work, what types don't work.  This aids the attorneys in preparing for trial.

I thought things like this only existed in movies or in the largest law firms in the country until our conversation.  I've definitely never heard of it in a criminal case.  That seems odd.  People fight the hardest and pay any amount of fees in cases where the argument is over money.  Where the issue is a person's freedom, parties are generally amicable and there is less money spent preparing.

Prosecutors can't run focus groups.  We don't have the time or money to pay the group.  Also, I wouldn't want the details of my case leaked to anyone off the street.  There is no guarantee of safety for my victims.  Criminal defense attorneys can't do it either.  They don't have the time.  If they spent that amount of time preparing for one case, their others would suffer.  Their income would suffer too.  If they are court appointed, the court will not authorize payment for a focus group.  The only way is if the attorney is retained and the defendant is willing to shell out some big bucks for a focus group. 

I would love to do a dry run of my case with a group before the actual trial.  Every time I speak to jurors after a trial I learn something I could have done better.  If I could get that information before trial, I could avoid potential pitfalls. 

Unfortunately, it's unrealistic in the criminal system.

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