What is a Speedy Trial?

The New York Times reported on the long delays the Bronx court system experiences on a daily basis. In just that borough, there are about 800 indicted felony cases that are over two years old. That means there are 800 defendants, many of whom are incarcerated, waiting for their trial.

The article exposes some of the flaws of the court system and lays plenty of blame at the feet of all the parties involved. My favorite part of the article was the timeline of a day in a typical trial, where only about two hours of actual work was done in an eight hour day.

That's abhorrent, you say? Doesn't the United States Constitution guarantee us a right to a speedy trial? Aren't there state laws too? Yes, yes, and yes, but speedy trial doesn't mean what you think it does.

The Sixth Amendment guarantees us all the right to a speedy and public trial, yet it sets no time limits as to what a speedy trial is. The Supreme Court, in Barker v. Wingo, laid out a four part test to determine if a period of time violates a defendant's constitutional right:

1) What was the length of the delay,
2) What was the reason for the delay,
3) Manner in which the defendant asserts his right, and
4) Degree of prejudice to the defendant that the delay has caused.

There are no inflexible rules laid out by the Supreme Court or the Constitution, leaving it to the states to establish time limits. In New York State, the People must be ready for trial within six months of the filing of the charges or the case is automatically dismissed. C.P.L. Section 30. 30.

Six months? Then, what are all those people doing waiting for trial for two years and some even up to five years? Shouldn't those cases be dismissed?

The wording makes all the difference. The statute states that a dismissal must be granted when the People are not ready for trial within six months. It does not say that the trial must commence within six months. All that is needed to stop the speedy trial clock from ticking is, 1) an indictment is filed, 2) the witnesses are available, and 3) the People declare either on the record or in a letter to the defendant that they are ready for trial. If an arrest occurs on January 1, the speedy trial date is July 1. If an indictment is filed on February 1 and the People declare they are ready for trial, then the clock stops on February 1 and only 31 days out of the 180 days (six months) are charged against the time.

Ready for trial doesn't mean the trial will occur that day, or even soon after. It just means that the People can proceed to trial. The defense has to file motions, hearings have to be held, and plea bargaining can occur. Every time the case is on the court's docket though, the People must be ready for trial or the clock starts ticking again.

But there are many reasons that adjournments will not count against the speedy trial clock:

1) Motion practice,
2) Defense attorney doesn't appear,
3) Defendant doesn't appear,
4) Emergencies like storms and power outages that close the court,
5) Defendant is rearrested on new charges, or
6) The court isn't available.

There are simply too few courtrooms for the number of cases in the Bronx. There are over 800 two-year old indicted cases, but not enough judges, courtrooms, court officers, stenographers, clerks, and other personnel. Plus, prosecutors have dozens of indictments to manage and defense attorneys have hundreds of cases to control. Every felony trial takes at least two weeks to complete, leaving all the personnel involved unavailable to move other cases. This doesn't even consider the number of new cases coming through the system daily.

The problem in the Bronx Court is a matter of scheduling. After a case is indicted, it gets assigned to a calendar judge, who handles the case from the arraignment on the indictment until the motions are completed. Due to the volume of cases, every adjournment is at least a month long, with older cases moved quicker. Once motions are completed the case is scheduled for trial.

The calendar judge does not do the trial. She is merely a cog moving the cases through the mostly routine matters. On the date the case is scheduled for trial, the prosecutor must say they are ready for trial, the witnesses must be available, the defense attorney must be ready for trial, and the defendant must be present. Then, the calendar judge calls the clerk who then decides if there are any trial judges available. If there are, the case is sent to that judge for trial. If not, the case is adjourned for a month or more, with no speedy trial time charged because the people were ready for trial.

On any given day, there are probably 50 cases scheduled for trial with only at most 30 judges available to try them. Since a prosecutor or defense attorney can never be certain which case will actually go to trial because there is no certainty as to availability, they have to triage cases and decide which ones are the most important to move and most likely to move. If a prosecutor has five cases scheduled to begin on a Monday, they obviously cannot prepare all five of them adequately. They must decide which one or two to prepare and then hope that the rest of the components are in place when Monday rolls around so the case can actually move to trial.

Lingering cases are a travesty for everyone. The victims are denied swift justice and many times do not care two years later. Memories fade over time affecting the outcome of cases.Innocent until proven guilty defendants languish in jail for years.

The delays definitely can work to the advantage of unscrupulous prosecutors and defense attorneys. Prosecutors who are afraid of trials or who do not want to put in the work can find any reason to tell the court they are not ready for trial and simply request an adjournment of a few days. Since the court's calendar is so enormous, they cannot schedule it on the date requested and must push it out for a few months. Then, only the days the prosecutor requests count against the speedy trial time and the rest is excludable due to the court's need to control its calendar.

Defense attorneys know that witnesses' memories fade over time, victims become disinterested, move, or die, and that plea deals then become more beneficial. The attorneys can then find any reason to request adjournments and let cases languish for years until they get a great resolution. Plus, judges do not like to pressure defense attorneys to trial when they say they are not ready because they are afraid the case will get reversed on appeal.

The Times article barely mentions the corrections department's role in the delays. They have to move thousands of prisoners a day through the five boroughs. That means transports are shuttling back and forth between Riker's Island and the courthouse all day long. Not all defendants are in the courthouse at 9:30 a.m. If the defendant doesn't arrive until 11 or even 12, there might not be any courtrooms available for trial because cases called earlier already claimed them.

Most prosecutors and defense attorneys I knew did their absolute best to have their cases ready for trial on every possible date. Even still, older cases still took precedence and newer trial cases would get pushed for months. The starts truly need to align in the current system to get a case to go to trial.

The answer is a bitter pill for taxpayers to swallow - more court staff, which means more money to pay them. This, combined with judicial pressure on the prosecutors and defense attorneys will help unclog the gridlock, although it is difficult to see this problem ever going away forever. I would love to see every felony trial occur within 6 months of the filing of the charges. I think that is fair and would give both sides ample time to prepare.

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The "New" New York Gun Laws

In a not-so quiet move, New York State announced "sweeping" gun control legislation last week.  There is plenty of fact and fiction that both pro and anti-gun coalitions are using, so I thought I'd address the highlights of gun laws in New York State.  Both current and the new changes.

It is important to define what a firearm is in New York State.  While there are many guns that fall under the definition of firearm, the ones we are mainly concerned with are pistols, revolvers, and modified/shortened shotguns or rifles.  These are commonly called sawed-off.  

Sale of Firearms

A local and national criminal background check is required for all private firearm, rifle, and shotgun purchases.  

Mandatory Reporting

Mental health professionals are now required to report to the director of community services (who then will forward it to the division of criminal justice services) when they believe one of their patients is going to be a threat to harm themselves or others.  This information is to be used to assess whether that person's firearm license should be suspended or revoked, or if they should be ineligible to apply for one in the future.   

Community Guns

Have you ever heard of a community gun?  I didn't until I began this job.  This is basically where a group of people share one or more firearms to use in crimes.  They stash firearms in alleys, in parks, in backyards, or anywhere else they can safely hide them.  The group of people who share the firearm know where it is so they can have quick access to it when they see a rival gang member or a quick robbery hit.  This is now included in criminal facilitation.  The offense level depends on what crime the user commits with the firearm.

Mark's Law

There have been too many instances of first responders (EMTs and firemen) getting killed in the course of their duty (Mark Davis and Webster Volunteer Fire Department are two examples).  It is now murder in the first degree to intentionally kill one of these first responders who are acting in the course of their duty.  It was already first degree murder to kill police officers, court officers, and other related persons. 

Assault Weapons

The law forbidding possession of assault weapons is broadened.  An assault weapon is defined as any semiautomatic rifle that is capable of accepting a detachable magazine, and has:  (1) a folding or telescoping stock, (2) a pistol grip that protrudes beneath the action of the weapon, (3) a flash suppressor or barrel designed to accept one, (4) a bayonet mount, (5) a grenade launcher, (6) a thumbhole stock, or (7) a second handgrip that can be held by the non-trigger hand.  Assault weapons are also semiautomatic shotguns with one of these characteristics:  (1) a folding or telescoping stock, (2) a pistol grip or second grip that protrudes beneath the action of the weapon, (3) ability to accept a detachable magazine, (4) a thumbhole stock or (5) a fixed magazine that can hold more than 7 rounds.

There are plenty of other assault weapons specifically named in the law and also characteristics for semiautomatic pistols that will make it an assault weapon.  It's too many to mention in this blog post.  

Magazines

If the magazine can hold more than 7 rounds of ammo, it is now a large capacity feeding device and a possession of it is class "A" misdemeanor.  There are exceptions for people who possessed the magazines prior to the effective date of the legislation.

Guns on School Grounds

It is a class "E" felony to carry an unloaded firearm within 1000 feet of any school, from a pre-school to a college.  It is still a class "C" felony to carry a loaded firearm within 1000 feet of schools.  

Unloaded Guns

It is now an "E" felony to possess an unloaded firearm.  It was a misdemeanor.  It is also a felony to willfully avoid the new registration process if you own a now illegal gun after the effective date of the legislation.



The law is 41 pages long and discusses everything from safe storage of guns, selling and buying, licensing, registering firearms, and the procedure to turn in items that now violate the statute without penalties.  It also provides a small list of people who can apply to avoid having their personal information and permits available for the public record.

It is complicated and a solution that does not resolve all the concerns from either side of the debate.  Illegal handguns are the weapon of choice in most of my cases.  The laws surrounding those are not affected too much by this law.  It is still too easy for people looking to commit crimes to obtain these guns.  Does this law do enough to stop it?  Can you stop it?

More info on New York Gun laws

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Flippin the Bird

It seems even judges on the Second Circuit Court of Appeals need to have a little fun.  Remember they are one step below the Supreme Court.

Quick synopsis of a recent case:

1) John and Judy Swartz were driving in St. Johnsville, NY,
2) Officer Insogna was using radar to detect speeders,
3) John extended his middle finger to express his displeasure at the officer's methods,
4) Officer Insogna started a traffic stop,
5) John did not want to give Officer Insogna any paperwork, but Judy provided her license,
6) Officer Insogna returned the documents to Judy and told John and Judy they could leave as he had no reason to ticket them,
7) John asked to speak to Officer Insogna "man to man",
8) Another officer heard John say something under his breath and then arrested John, giving him an appearance ticket for disorderly conduct.

John filed a suit alleging the officers violated his civil rights by arresting him for exercising his First Amendment right to free speech.  The District Court dismissed the suit and the Second Circuit reinstated it in this opinion.  The best part about the opinion is the centuries-long history of the middle finger provided:

     See Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87, 91 n.1 (2d Cir.  

     1998) (reporting the use of the gesture by Diogenes to insult Demosthenes). Even earlier, 

     Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. See 

     Aristophanes, The Clouds (W. Arrowsmith, trans., Running Press (1962)). Possibly the first 

     recorded use of the gesture in the United States occurred in 1886 when a joint baseball team 

     photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the 

     finger to the Giants. See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law , 41 

     U.C. Davis L. Rev. 1403, 1415 (2008).

The officer said he stopped John's car for three reasons:  1) The gesture “appeared to me he was trying to get my attention for some reason," 2) “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and 3) “I was concerned for the female driver, if there was a domestic dispute.”

The Court shot this down, stating that the universal and ancient recognition of the middle finger as an insult denies any other interpretation by the officer.  Since the officer did not have any reason to approach the vehicle, the stop was unlawful and they allowed the civil rights suit to proceed.

And who says lawyers are no fun?

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To Arrest the Victim?

The situation usually follows this pattern:

The victim is shot by the defendant, who know each other from the streets.  The victim is taken to the hospital for treatment related to the injuries.  The hospital automatically notifies the police whenever a gun shot wound victim arrives.  The victim is angry and identifies their attacker to the police.  The police arrest the suspect.

Then, it's time for court.  The time for that pesky Sixth Amendment with all it entails about confronting one's accusers.  The victim thinks they did enough by giving a statement to the police.  Why can't the DA's office just do it without them?  Maybe the victim tells you that they don't want to proceed with the case?  Maybe they say they'll just handle it on the street?

It's a common scenario that an ADA sees in increasing frequency as they advance to the most serious cases in their career.  The more dangerous the defendant, the less likely witnesses will willingly come forward to testify against him.  The New York Criminal Procedure Law addresses these situations through the use of a subpoena, criminal contempt statutes, and material witness orders.  We never want to arrest our witnesses.  It does not help our relationship with them, but it its a sad reality of the world we live in every day.  The last thing we want to do is victimize a person twice.

Why Not Just Drop the Case?

Before we get into the how, we must start with why.  Why do prosecutors and police force cases to move through the system when the victim or witnesses are uncooperative?

We don't do it in every case.  There are certain criteria the case should meet before we go through the time, trouble, and expense of arresting a witness.  First, it depends on the type of case.  It will only happen in felony cases.  Even then, the case must be serious before we decide to exercise our ability to arrest uncooperative people.  For example, it's not usually done in a stolen car case.  Think armed robberies, rapes, assaults, and murders.  Second, it depends on the proof of the case.  In a case with slim proof and uncooperative witnesses, we are less likely to move for a material witness order and warrant.

But why would we even do it?  Prosecutors must enforce the laws.  We represent the state we work in, not the victims.  Therefore, we don't answer to the victim's wishes, whether they want the death penalty for the defendant or to allow him to go free.  When dangerous people commit crimes and are likely to do it again, we must act to prevent it.  Plus, when people commit crimes and are able to intimidate witnesses into not appearing to testify against them, there is a degree of boldness and escalation that exists.  The defendants that hold so much sway that they can threaten and intimidate their way to force victims not to appear are usually the ones who make life terrible in neighborhoods.  

The Subpoena

It all starts with the subpoena.  C.P.L. Section 610 allows prosecutors to issue subpoenas directing witnesses to attend grand jury or court proceedings where testimony is required.  Anyone over 18 can serve the subpoena, but it is usually done by police officers or detectives.

Criminal Contempt

If the witness willingly fails to appear after the subpoena is delivered?  They are guilty of Criminal Contempt in the Second Degree, a class A misdemeanor (Penal Law 215.50(3)).  It is punishable by up to a year in jail.  If the witness shows, but refuses to testify?  It's still criminal contempt.

Material Witness Order

Now there are two options.  The first is to direct the police to arrest the witness and charge them with criminal contempt.  The second is to apply to the court for a material witness order and warrant.  A material witness is someone who the People or defense desire to call as a witness at a pending criminal action and there is reasonable cause to believe that the witness has material information about the case and will not appear when subpoenaed.  C.P.L. Section 620 provides the procedure required to get to this point.

It's easy to show that the witness will not appear when subpoenaed if we already tried and they didn't show.  But personal service of a subpoena is not required to get an order from the court.  We just have to show that the person will not show if subpoenaed.  Have all the phone numbers been disconnected?  All of the addresses are dead ends?  

Once the order is signed, a warrant issues for the person's arrest.  Once arrested, the police must bring the person to the court who will declare the person a material witness and either fix bail or release the person.  Bail usually depends on whether a person cooperates or not.  If there's bail, the person is entitled to a hefty $3 a day while in jail.  I find that that most people usually run far away from me, the courthouse, and the DA's office once they are going to be released.  They usually forgo the $3.

Most of the time, people appear when subpoenaed.  They are never happy to testify, but usually do so.  When I do apply for a material witness order, I ask the officers or detectives to treat the person like a witness, not a suspect.  Try not to handcuff them unless necessary and bring them right to my office, not central booking.  That way I can walk the witness right down to court after getting them a lawyer and speak to them through their attorney.  The last thing any attorney wants is an antagonistic witness, even if you had to move heaven and earth to get them there.  This is the social work portion of the job.

So far, I've never had to charge anyone with criminal contempt for refusing to testify.  But, in my line of work, that could all change tomorrow.

Check out the flip side view from defense attorney Jamison Koehler.

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It's a Conspiracy

What makes four guys sitting around a table drinking beers and talking about a robbery a crime?  It's in the planning.

We all do it, probably without even knowing it most days.  We'll stand in a bank line and look at the cameras and wonder if they would catch us if we walked out with a hundred grand.  Or maybe you're working the cash register at a store and occasionally think about slipping a bill into your pocket?  When does thinking about a crime turn into committing a crime.

There are three requirements to prove a conspiracy:

1) Two or more people,
2) An mutual agreement to commit a crime, and
3) An overt act in furtherance of the conspiracy.

The first element is simple.  It takes at least two to make it a conspiracy.  Otherwise, if the person comes close enough to committing the crime, it is an attempted crime.

The agreement is trickier.  What exactly is an agreement?  Does it have to be in writing?  Oral?  What if one of the suspects cannot be prosecuted for the crime because they are mentally challenged?  Or an undercover officer?

The agreement can be in any form - oral, written, or otherwise.  To prosecute these cases, we always seek some corroboration of the agreement like a letter written between the suspects or, where one is cooperating, a recorded conversation.  A person can still be guilty of a conspiracy if they commit the crime with someone who cannot be prosecuted for it.  An example to demonstrate - The suspect wants to have her husband killed for the life insurance.  She doesn't want to do it because then she won't get paid.  She seeks someone else.  The police get wind of it and send an undercover officer to speak with the suspect.  The undercover officer wears a wire and records the conversation.  Obviously, the undercover will not be prosecuted for the crime, and, therefore, the conspiracy charge will only prosecute one person.  The law is clear that the suspect can still be charged with conspiracy even when the other parties cannot.

What constitutes an overt act?  This is what moves it from bragging stages to crime.  One of the parties who agreed to the crime must take at least one step towards its completion.  Examples - buying guns, making a down payment to a contract killer, renting a getaway car, casing the location of a robbery.  Any act that moves the conspiracy closer to completion will do.  As a prosecutor, it is difficult to make the call when there are enough overt acts to arrest, but before the completion of a crime.  What constitutes probable cause does not always persuade a jury that the group was serious about committing the crime.  The overt act element is the line between Minority Report and protecting society.

Once all three elements exist, we can make an arrest.  The only viable defense to the conspiracy must happen before the arrest.  One of the participants must affirmatively withdraw from the conspiracy before the crime.  This means they tell the other participants they are out and then they tell law enforcement.  That is usually the way law enforcement finds out about the crimes.  Participants become informants when they realize that the planning between friends is quickly becoming a criminal reality.

The federal government charges conspiracy much more than state prosecutors do.  It can be charged in any case where co-defendants committed a crime, in addition to the completed crime charges.  State prosecutors usually only charge conspiracy where there is an undercover investigation and an arrest before a crime occurs.  They are some of the most satisfying cases because you are stopping the defendant before anyone is hurt.  We don't get to do that often.   

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What's 50,000 Volts Between Friends?

As you know, I'm a special prosecutor on a case in another county. 

There's a legal issue we are currently dealing with on the case.  In the first trial, the police used a taser to obtain a DNA sample.  It's not exactly the ordinary way to do it, but here's how it happened.

The Court signed an order allowing the police to obtain a DNA sample from the defendant to compare against DNA evidence recovered at two different crime scenes.  What happened when the defendant refused you ask?  Did they arrest the defendant for contempt and bring him before a judge?  Did they go back to the judge and ask for an order allowing force?

Nope.  The police sent 50,000 volts of electricity into the defendant for a second and a half until he opened his mouth so they could swab the inside of it for skin cells.  The DNA sample matched the crime scene samples and the defendant was convicted.  When the defense attorney asked the police why they thought of the taser, they said it was the defendant who suggested it.

The appellate division reversed the conviction, stating that the force used was too much.  The question now is, are the People allowed to obtain another DNA sample?

In re Abe A., 56 N.Y.2d 288 (1982) provides the framework for obtaining a DNA sample from the defendant.  The Court of Appeals laid out three requirements:  (1) probable cause to believe the suspect has committed the crime, (2) a clear indication that relevant material evidence would be found, and (3) the method used to secure the evidence is safe and reliable. 

There was clearly probable cause in our case, but the manner in which the sample was collected was intrusive, which is why it was suppressed.  So now the question is whether the violation of the Fourth Amendment was so intrusive that allowing the police to obtain a subsequent sample would not deter future police misconduct.

I'm obviously arguing that it is not.  The Court has already used the exclusionary rule which is used to punish police misconduct.  It is not a means to force the police into a worse position because of the use of the taser.  It is to excise the misconduct and anything that flows from it.  The sample we are seeking is based on an independent source than the illegally obtained sample.  It is not the fruit of the poisonous tree because it is not based on the tasered DNA sample.  It is based on the probable cause that existed before the tasering.

Is the police conduct so bad that any future attempts to collect the same untainted evidence should be prohibited?

Stay tuned. 

 

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Prosecuting the Protectors

Every case is important, whether it is drugs in a car or a homicide of an elderly victim. They all have some bearing on the world and an effect on individuals and society. But some cases are more motivating than others. I am currently handling a case where a defendant committed two nasty home invasions of elderly victims where he stomped them into unconsciousness. The theme, opening, and closing write themselves in those cases.

Cop cases rarely fall into the easily motivated category due to the ramifications that come with the investigation.

Polie officers get investigated for all sorts of crimes - embezzlement, fraud, robbery, perjury, and other theft crimes. But most cases come in two varieties –DWI and excessive force.

The DWI cases usually come after an accident. An officer crashes into someone after a night of drinking and seriously injures the person. The result – career over, huge lawsuit, and the cop’s name sprayed across the papers until the case is resolved. Most police officers understand these prosecutions. They don't like to see their friend in such a bind, but there is no blame on the prosecutor.

Police officers are the conduit through which prosecutions occur. They investigate the crimes and do all the heavy lifting. Prosecutors navigate the case through the court system while directing the investigation. When a prosecutor is tapped with a police officer investigation, the dynamic shifts. Word spreads quickly through the police fraternity that the ADA or AUSA is one who prosecutes cops. If the cops don’t agree with the prosecution of one of their brethren, we will see officers not appearing for conferences, avoiding ADAs, or trying to get their cases handled by other prosecutors. Needless to say, it becomes difficult to motivate officers to help an ADA who is prosecuting one of their own.

Let's discuss excessive force – did an officer exceed the scope of his duty in dealing with a suspect? Did he hit the handcuffed defendant? Was the defendant reaching for a gun when the officer shot? Did he shoot too many times? I am not on the street. The cops are the ones walking into enemy gang territory and pulling cars over with tinted windows crowded with five people at 4 in the morning. Every encounter with a suspect could prove fatal for an officer. I have no illusions that the life of a police officer is dangerous business.

Prosecutions for excessive force are like being a Monday morning quarterback. We have to judge the officer’s actions based on the facts we now know against what the officer knew at the time. Some are easy. The cop who cold cocks the handcuffed defendant is guilty of a civil rights violation. The gray areas are the difficult ones – the shooting of an unarmed suspect who was reaching into his waistband when the cop told him to put his hands up.

Either way, prosecuting cops creates a barrier between the prosecutor and police in other cases. What used to be a cordial and even friendly relationship can become purely business or non-existent. Officers can become hesitant to divulge too much information to the prosecutor for fear of it being used against them.

What's the effect on future prosecution's with the officer? Let's take a perjury case. An officer walks into the grand jury and says he collected bullets from a crime scene and submitted it to the lab. Days later, another officer tells the ADA the he was the one who did that and that the first officer had left the scene prior to the bullets being collected. When confronted with the information, the first officer admits he lied, but says he was just trying to help out and make it easy by not getting the second officer involved.

Even if that officer does not get charged with perjury, do we have to disclose that intentional lie on every case the officer is on again? Shouldn't the defendant and defense attorney know this officer was previously accused of fabricating testimony? We must prosecute police officers who violate the laws for the same reasons we prosecute citizens - to ensure that others abide by the laws society sets.

If there was no prosecutions, then there would be no clear line that officers should not cross.

Not all police officers react like this. Some understand that it is the nature of a prosecutor’s job to investigate crime and anyone that commits it. It is not an endemic problem in the police force, but an individual problem with individual officers. The majority of police officers are hard working men and women who never stop being a police officer whether they are on-duty or not. They are regular people put into an irregular job that is held to a higher standard than the rest of us. It is rarely gratifying to investigate and prosecute a police officer (I'm sure this one was gratifying). It's a job that must be done and as a prosecutor we swore to uphold all the laws and prosecute the offenders, no matter who they are.

But the reputation will always stick with the prosecutor.

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The Cop and ADA Dynamic

On Friday, I posted about the on-going battle between the NYPD, the Bronx DA, and Mayor Bloomberg.  There is a breakdown in communication and common goals on every level of law enforcement and the losers will be the citizens.

The system is supposed to work like this:

1) Suspect commits a crime,
2) Victim calls 911,
3) Police respond,
4) Police investigate,
5) Police make an arrest,
6) District Attorney prosecutes the case

The NYPD has approximately 34,500 officers.  It's a massive organization that requires policies and procedures.  New York City DA offices are also gigantic offices, some swelling to over 1,000 total employees.  It too needs to be guided by written procedures.  Both of these groups should be working towards the same goal, which is the equal enforcement of laws and the protection of citizens.

Most of the time, the relationship runs smoothly.  The cops arrest the suspects and the ADAs prosecute them in court.

But what about the times it doesn't run like it should?  The cop makes an arrest without probable cause?  Or illegally searches a citizen?  What about the ADA who dumps a case because he/she doesn't do his/her job?  What about when the cops commit the crimes?  Or the ADA does?  How are these cases handled and who is ultimately responsible?

Here are just some illustrations of the problems:

-NYPD officer, Emmanuel Tavarez, conspired to rob drug dealers.
-New Jersey Attorney General indicts New Jersey State Troopers for leading an exotic car race.
-NYPD officers indicted for ticket fixing.
-Spokane police officer convicted of excessive force.
-Prosecutors plead guilty to DWI here and here

It's a tough business being in the public eye.  Every one loves when a public official screws up.  It makes local and national headlines.  All of us need to realize we are held to a higher standard whether we like it or not.  I'll admit it; it's an ego boost when you see your name in the paper or watch yourself on the news for a case the media deems important.  But like any public figure, the more you are in the media spotlight, the farther the fall if you lose your footing.  Check back this week for a post on the prosecution of police officers and the Life of an ADA on a high profile case.

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Youthful Offender - A Second Chance?

Everyone wants it.  In every case, the defendant asks his attorney, "can I get my Y-O?"  It's a common belief in the street that you get one free felony.  You get to commit any felony and still have your record sealed.

It is officially called youthful offender adjudication under Criminal Procedure Law Section 720.  What it means is that a teenager's conviction is replaced with an adjudication, the records are sealed, and they are eligible for lower sentences.  But, it is not automatically granted in any felony case. 

An eligible person for youthful offender must:

1. Be aged 14 through 18
2. Have no prior felony convictions
3. Have no prior felony youthful offender adjudications, and
4. Have no prior juvenile delinquent adjudications for listed designated felony acts 

Felonies are handled by supreme and county court judges in New York State.  It is in their sole discretion to determine who receives a youthful offender adjudication.  The standard is:

"If in the opinion of the court, the interest of justice would be served by relieving the eligible youth from the onus of a criminal record and by not imposing an indeterminate term of imprisonment of more than four years, the court may, in its discretion, find the eligible youth is a youthful offender."  C.P.L. § 720.20(1)(a).   

What does it mean to receive a Y-O?  First, the records are sealed and the defendant does not have to report any convictions for crimes on any applications for college or work.  Second, the sentencing range runs from a conditional discharge (one year unsupervised probation) to an indeterminate four years in jail.

A person is not eligible for this if the crime is:

1. An A-I or A-II felony (murder),
2. An armed violent felony, or
3. Rape first, Criminal Sexual Act First, or Aggravated Sexual Abuse

As in any law, there are exceptions to these rules.  A judge can still grant a defendant youthful offender status if they are charged with an armed violent felony (violent felony committed with a gun like robbery) or the sex crimes listed if the judge finds mitigation.  Mitigation is defined in C.P.L. Section 720.10(3).  It means circumstances that bear directly on how the crime was committed or that the defendant was not the major actor. 

An example of mitigation is where two men rob a victim.  Only one of the men has a gun.  The non-gunman has a good shot of receiving Y-O.

Mitigation has nothing to do with the age of the defendant, the lack of a prior criminal record, the victim wants to see it happen, the defendant sings in his church choir or any of the other plethora of reasons given by defense attorneys.  It only has to do with how the crime was committed. 

A defendant must first plead guilty to a crime.  Then, at sentencing, the judge must place the reasons she is either granting or denying Y-O on the record for an appellate court to review.   

Do you see the problem with Y-O?  It can take a crime like robbery in the first degree or rape in the first degree, which carries a five year minimum sentence, and reduce it to a sealed record where the defendant can receive a conditional discharge?  It is ripe for abuse in the wrong cases.  Luckily, I have yet to see it misused in such a severe manner. 
 
Y-O can be a second chance.  Court's must wield this power wisely.  Every eligible youth who comes before it does not deserve this status for every crime.  The reverse is also true.  Court's must not summarily deny the status just because of the crime.  Each case must be analyzed separately.  The power to grant or deny this rests solely in the judge.  Neither the prosecution or defense has the power to negotiate this with each other.                             

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How to Get Away with Murder, Part Two

Did I throw you off with the post in between this series?  Well, we're back at it.  Check out part one here.

The same day Samuel Ciapa's body was discovered by authorities, Alan Tomaski fled to West Virginia.  That's fantastic evidence called "consciousness of guilt."  In this case, however, it was the prosecution's undoing.  

A lengthy investigation ensued.  Tomaski and his co-defendant Hesse were prime suspects, but the case never developed to the point of proof of guilt beyond a reasonable doubt.  The crime occurred in a suburban police department, with limited murders.  The case warranted constant attention from their detectives.  In a bigger police department, it might have moved to the back burner as newer homicides replaced it.  

Following his conviction for manslaughter in the first degree and sentence, Tomaski had time to do his research.  He stumbled upon a case similar to his.  In People v. Turner, the prosecutor asked for the lesser charge of manslaughter first on the murder second indictment.  Defense counsel objected on the ground that manslaughter was not proven during the trial.  The appellate court held it was ineffective assistance of counsel for the defense attorney not to object on the grounds that the statute of limitations had passed.  The court reversed the conviction and dismissed the indictment.

Tomaski had hope and sent the case to his lawyers.

Two private, high-powered attorneys with seventy years of criminal defense experience filed a motion. In it, they said that they were ineffective in their representation.  The People replied saying that they were very effective, because it was the strategy all along.  Allow the lower charge, so that they could appeal it later on and get the case dismissed.  Very shrewd, said the prosecutor.

The original trial court held a hearing and both defense attorneys took the stand in public.  Both admitted that they missed the issue, that they committed an error.  That they were not effective in their representation.  

The prosecutors countered and questioned about their legal experience and strategy.  They argued that this was a tactical decision and because of that, Tomaski shouldn't benefit.

The court seemed to agree with the defense attorneys.  That's when the prosecution remembered the statute of limitations has a flip side.  It can be extended in certain situations, like when a defendant is out of the state or imprisoned in another state.

They took out their calculators and went to work.  The murder was in August of 2002 and Tomaski was indicted in June of 2010.  That was almost eight years - a little less than three years over the statute of limitations.  If they could show Tomaski was out of the state for that period of time, it would be excludable and not counted against the five year period.

Tomaski was in and out of jail for the years he was in West Virginia.  There was no proof he was in New York.  A sigh of relief!

Wrong.  Grandma's journal surfaced.

If you recall from the first post, the police collected Tomaski's grandmother's journal when they searched her house.  Grandma told the defense attorneys to look in the journal.  In it, she described the dates when Tomaski was home in New York with her.  She described when he went to West Virginia and even when she picked him up and drove him back to New York.  

Time for another hearing.

Grandma testified and read the relevant portions of the journals.  It was undisputed that Tomaski was in West Virginia for over two years when he was in jail there.  The prosecution had to save around 150 days of disputed time when he was not in jail.  Grandma said he was in New York and the prosecution countered that grandma could not be credible because she was covering for Tomaski.  The judge listened to her testimony and read her journal.

And then, in July of 2012, the court decided that grandma was believable.  Her journal was collected before the statute of limitations issue was even a relevant issue.  It was difficult to believe she contrived the journal entries, which were in police custody, before anyone knew the statute of limitations would become the key.

After serving 18 months for the murder of Sam Ciapa, Tomaski walked out the front door.  He could not be tried again because of double jeopardy.  The jury acquitted on murder second and the statute of limitations barred manslaughter first.

And that is how you get away with murder.

Check out the articles, here and here.  

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How to Get Away with Murder, Part One

I'm very interested to see what kind of search words will bring people to this post.  It will be a two-series post, culminating later this week.

Over the last year, an interesting and sad tale has played out in Buffalo, New York.  In 2002, two men killed another man they suspected of stealing a pound of marijuana from them.  In 2011, Alan Tomaski was convicted of manslaughter for his role in the stabbing death.  Sadly, it was a pretty typical case.

The unusual scenes played out after the conviction in a movie-like series of events.  It culminated with the same judge who sentenced Tomaski to 25 years in prison having to make the decision last week whether to release him and vacate the conviction.  No witnesses recanted their story.  DNA or fingerprints didn't exonerate him.  It was the good old fashioned statute of limitations that reared its head after this trial.  And apparently, everyone missed it.  The homicide chief, two veteran defense attorneys, and even the judge didn't pick it up.

The defendant, who had nothing but time after the conviction, found what he claimed was an error.  It began a series of events that could set a convicted murderer free.  And grandma tried to save the day, of course.

This is the opposite of a wrongful conviction.

The statute of limitations prohibits prosecution of certain crimes following a specific period of time.  It allows for closure for the police and the public.  In New York State, the time frame for felonies is five years.  There are certain events that can extend the period.  Examples are if the defendant leaves the state or the crime cannot be solved without DNA.  Murder second and murder first do not have a statute of limitations.  This is the reason cold cases can still be prosecuted twenty years later.  Manslaughters and below have a five year statute of limitations.

Check out a previous post on the difference between the two here.

In Tomaski's case, his co-defendant, Michael Hesse held the victim down while Tomaski stabbed him.  The investigation took years to develop, which was normal in many murder cases.  Part of the investigation included a search warrant at Tomaski's house, where he lived with his grandmother.  Police seized a journal belonging to his grandmother, hoping to find additional evidence of the crime in there.  It was collected years before the events this post describes.  Both Hesse and Tomaski were charged with murder in the second degree by an indictment in 2010.    Hesse agreed to testify against Tomaski in exchange for a reduced plea to manslaughter in the first degree.  By agreeing to plea, he waived his right to challenge the statute of limitations in his case.  It was eight years later, but since Tomaski was charged with murder, the statute of limitations didn't apply.

Tomaski decided not to plead guilty and go to trial.  Everything was fine, until the most overlooked event in every trial occurred - the charge conference.  This is when the lawyers and judge decide what crimes the jury will consider and what legal charges they should hear.  At Tomaski's charge conference, the prosecution asked the judge to have the jury consider both murder in the second degree and the lesser included charge of manslaughter in the first degree.  It was a tactical move.  The defense objected, but the judge allowed it.

The jury found Tomaski not guilty of murder in the second degree, but guilty of manslaughter in the first degree.  The judge sentenced him to 25 years in jail.

While in jail, Tomaski sent a letter to his private attorneys containing a reference to an appellate case like his.  Like Tomaski, that case involved a defendant charged with murder after the five year statute of limitations who was then convicted of manslaughter by a jury.  The appellate court vacated the conviction because the manslaughter charge could not be maintained after the five year statute of limitations.  Tomaski said that his case was similar.

The attorneys pulled their file out of the closed pile and went to work.  Even those attorneys had no idea the lengths they would have to go once they set the ball rolling down the hill.  Over the next year, a heavy does of humility would be served to everyone.

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Uh-Oh

It happens.  We're all human.  We all mess up.  Overlook something.  Forget something, or just plain miss the big picture sometimes.

Disclaimer - the facts of this case allege a child rape.

The New York Court of Appeals just decided a case last week that explains what happens when a prosecutor uncovers their error in the middle of trial and tries to correct it in People v. Kelley,
It was a sexual assault case, a father raping his daughter.  The police collected the victim's underwear, bedsheets, and a towel that was supposedly used for the defendant's semen.  The underwear contained male DNA, but it wasn't the defendant's DNA.  It was an unknown male.

The prosecution was going to trial without testing the towel.  It appeared to just be an oversight.  Either the prosecutor didn't know the towel existed, thought it was already tested for DNA, or forgot about it.  So the defense at trial was that yes the girl was raped, but it wasn't the defendant.  Look at the DNA on the underwear.  It's not his and that shows he's innocent.

During the trial, the prosecutor had the towel tested.  The results came back after the defense attorney put forth his defense and the defendant testified.  The towel contained semen and the DNA matched the defendant's DNA.  But the female DNA on the towel wasn't the victim's.  Now there was corroboration for the victim's version of events.  And the defense theory of the case?  This blew it out of the water.
The trial judge allowed the evidence into trial over the defense objection that his client's right to a fair trial was impaired.  The defendant was convicted and appealed.  The Court of Appeals reversed.  They said that the proper ruling should have been to preclude the evidence at trial or to declare a mistrial and start over.  The defense theory of the case was irreparably harmed due to allowing the evidence in the middle of the trial.  The trial was too far along to call it a harmless error.

One Justice dissented, stating that the trial court acted property because the late testing was not a deliberate strategic act, but a simple oversight. 

It doesn't matter though, because the Court of Appeals has spoken and the case must be retried.  The daughter must testify against her father again in Court.

I empathize with the prosecutor.  Every one of us makes mistakes that affect a case.  We're human.  It's a difficult phone call to make to a sexual assault victim.  The call that she has to go through it again. 

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The Law of Snitching

I would love to meet the originator of the phrase "snitches get stitches."  I want to know where he or she is now.  How living life by that mantra has worked out.

In an interview with a victim last week, he informed me that he would never testify because on the streets, "snitches get stitches."  

I informed him that he was a victim, not a snitch.  Not a co-defendant turning on his buddy.  It didn't matter to him because snitching has transformed to include people who call the police as a victim of a crime.

Street Law


Over the last few weeks, there has been a slew of shootings in my city.  Many of these have turned fatal and the stories are picking up steam in the local papers.  Columnists, community leaders, and detectives are screaming for witnesses to come forward.

There is a distressing phenomenon in American inner cities.  A slim minority of men can bend entire neighborhoods to their will through fear.  They rob, steal, and maim with impunity.  Witnesses routinely tell police officers that they will not ever cooperate.  It's led many of our usual suspects to commit acts of violence against people they know.  Those people are less likely to report the crime and follow through for fear of retaliation.  They know the suspect, but more important to them, the suspect knows who they are and where they live.

These men make life miserable for a neighborhood and obstruct progress in a community.  Yet people are afraid to speak out against them.  Good citizens fear for their own lives and those of their children when they speak with police.  Those that do cooperate refuse rides to court because they don't want their neighbors to see them getting in a police car.

This perception needs to be destroyed.


The worst, most hardened gangster is the first to beg for a plea deal to give up his friends.  It happens everyday in every city in America.  When the alternate choice is a lifetime in prison, people come to the side of light pretty quickly.  These same men who vow vengeance against any person that testifies against them, cry in my office when recounting their tales of crime and begging for mercy.

Snitching used to refer to one gangster cooperating against another gangster.  Their has been a loud and fruitful campaign to use it against all people who report a crime.  Victims of violence or theft are told to accept what happened as part of life in the neighborhood and not report it to the police.

Let's get the ones who create havoc off the streets.  It takes citizens who will stand up.  It's just an unfortunate truth that for every reported violent crime, there are probably two or three that don't get reported because the victim is resigned to accept their fate.  


Actual Law


The legal term for snitching is called accomplice testimony.  It's when a person involved in a crime agrees to testify against the other participants in exchange for a reduced plea.

Said another way, the person cops a deal.

New York law says that testimony of an accomplice, standing alone, is insufficient proof against the defendant.  There must be some form of corroboration that connects the defendant to the crime on top of the co-defendant testimony.

The reason for this is simple.  A person can simply make up anything to get a better deal.  Two drunk people in a car after an accident?  Well, either one can claim the other was driving.  Two robbers?  One of them will inevitably claim the other had the gun to get a lighter sentence.

The law requires something more than an accomplices word to prove a defendant guilty.  That means an independent witness, DNA, fingerprints, or other circumstances must exist.

This is different than federal law where accomplice testimony is enough.  Federal prosecutors do not need any corroboration, although many won't prosecute a case without it.

Some interesting strategies must be discussed when a co-defendant agrees to testify.

First, the prosecutor must decide if the benefits of the testimony outweigh the disadvantages.  The negatives are that the prosecutor appear like a salesman, making deals to get what they want.  Also, the defendant turned witness had inevitably lied to the police or prosecutor already.  The cooperator will only get a deal when they say what we want to hear.  It can look like we only give deals to people who say what we want to hear. 

Second, prosecutors must decide how to use the defendant at trial.  (See this post on the unlikeable witness).  Embrace the witness as a bastion of the truth?  Speak about the witness as a necessary evil?  It depends on each case.  One thing is certain.  The defendant will be telling his attorney every despicable act the cooperating witness ever did.  The witness will look like the ring leader of an evil empire by the end of the cross-examination.  That's why I constantly remind the jury that the cooperator is the defendant's friend, not mine.

I am an advocate for the victims of crimes.  But, I can't be the only one.  Victims and witnesses must be an advocate for themselves and do whatever is necessary to see the person brought to justice. 

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It's a Privilege

There is a fascinating trial underway in my office right now.  Unfortunately for the reader, speaking about an on-going case would violate one of the only rules my superiors gave me when I approached them about starting this blog.  Since they haven't asked me to stop posting or take it down, I'll live up to my end of the bargain.  Hopefully, once it's over I can discuss it and get some interviews with the trial attorneys.

One of the many issues that arose during the investigation was spousal privilege.  Basically, if you tell your spouse about the crime, can they be forced to testify about it? 

Let's discuss some of the privileges that exist in the law.  The fact that a witness tells someone something in exchange for secrecy does not make the statement privileged.  There must be a legal reason for the communication to be protected.

Attorney-Client

Everyone knows this one.  An attorney or employees cannot disclose client communications.  This means the attorney, paralegals, investigators, or administrative assistants are forbidden from disclosure.  The privilege exists with the client alone.  Meaning if anyone is to disclose it, it must be the client.

The reason behind the privilege is to encourage full disclosure between the attorney and the client.  If the client believes that everything they say is confidential, they will be more open.  Therefore, the attorney can provide better legal advice. 

Exceptions:

It's the law, so we know there are exceptions or ways to pierce the privilege.  Here are a few:

1) An actual attorney and client relationship must exist.
2) If the communication is made in the presence of a third person not included in the privilege, the communication is not privileged.  If the client and attorney speak in the presence of the client's friend, the communication is fair game.
3) A client consulting an attorney for help committing or covering up a crime is not privileged.  If the attorney provides help, he is a co-conspirator.
4) The privilege ceases if the client sues the attorney for malpractice.

Doctor-Patient

A doctor, nurse, dentist, podiatrist, or chiropractor cannot disclose any information obtained from a patient, unless the patient waives the privilege.  Again, we want to encourage open and honest communication with doctors. 

Exceptions:

1) Privilege applies only to information obtained while attending the patient.  A doctor may testify that he treated a certain patient, how often, or that surgery was performed. 
2) Only information necessary for treatment is privileged.  If a patient tells the doctor that he blew a red light, then the doctor may be compelled to testify to that.
3) The privilege is waived when a patient puts it in issue.  This usually occurs when a plaintiff sues a person for injuries caused following a car accident.

Spousal

One spouse cannot be compelled to testify to communications received from the other spouse.  The reason for the privilege?  To protect marriages.  Both spouses must agree to waive the privilege.

Exceptions:

1) An abused spouse may testify against the abuser. 
2) Ordinary conversations are not privileged.  Only matters discussed because the people are married are privileged.
3) Actions.  If a person observes their spouse commit a crime, the observations are not privileged.
4) Communications in the presence of third persons.

Parent-Child

This is a gray area.  There is not a New York statue relating to this privilege.  In addition, only lower courts have adopted this privilege.  The New York Court of Appeals has not.  Even federal courts have refused to adopt this privilege. 
 
Some of the factors the court will use to analyze whether a communication between a parent and child is privileged are the age of the child, whether the communication was given in confidence, the relationship of the parent and child, and the injury to the relationship from disclosure.

There are more privileges, but these are the ones we see most often.  There are always legal arguments to be made to pierce the privileges.  It is not always the end of the case. 

In a few weeks, we will hopefully analyze the case that was the inspiration for this post.  The trial is pitting three top attorneys from my office against the three top criminal defense attorneys.   

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Eric Smith - 19 years later

On August 2, 1993, thirteen year old Eric Smith did something horrible.  Something unimaginable.  He beat, sodomized, and killed a four year old boy.  Public outrage followed.  Then, shock erupted after the killer confessed.  He was only thirteen.

Even though I didn't live near the town the crime occurred in, I remember the case.  It caused headlines across the state.  Like most of these brutal juvenile cases, it causes people to question the juvenile crime laws.  Are they tough enough?  Are they too focused on punishment?  Not enough on rehabilitation?

The judge gave Smith a sentence of 9 to life.  That means he had to serve nine years before he was eligible for parole.  If he made parole, he would be on it for the rest of his life.  Smith is up for parole again this year.  He's 19 years into his sentence.

Smith claims his actions were a result of bullying.  At the time, everyone thought bullying was something that every kid went through.  In 2012, people are still fighting against that notion.

In New York the sentencing range for a juvenile offender convicted of murder is a minimum of 7 years to life in prison and a maximum of 15 years to life in prison.  I tried a 15 year old two years ago in a murder case.  He shot and killed a man during a robbery.  He confessed, but said he only meant to hurt him.  It went to trial because the defendant wanted the lesser charge of manslaughter.  It didn't carry a life sentence.  The jury agreed with his statement that he only meant to injure, not kill, when he shot the victim in the leg. 

An interesting note in that case.  When that defendant confessed, he was already in jail for another gun point robbery after the murder.  At 15, his street nickname was "murder."  The judge wouldn't let the jury hear about the new robbery or his nickname.  A little too prejudicial, she said. 

So, the question becomes, how long should Eric Smith stay in jail?  He has already been in longer than most convicted murderers that are convicted at double his age.  Should it be a true life sentence?  Should he be allowed out?  What about the victim who would be 23 now?  What would he say? 

Update - Eric Smith was denied parole again in 2014. He is eligible again in 2016.

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Fed vs. State

It was a question posted recently by an anonymous commenter.  Describe the differences between an ADA (Assistant District Attorney) and an AUSA (Assistant United States Attorney).

We'll look at three different areas:  jurisdiction, discretion, day-to-day.

Jurisdiction


A District Attorney's Office (DAO) can prosecute any person that violates their state's penal law within their county.

A United States Attorney's Office (USAO) can prosecute any person that violates certain federal laws, usually contained in the United States Code.

Oftentimes, crimes will overlap.  The offices then need to speak and determine the best course a case should take.  Which jurisdiction has stiffer penalties?  Which jurisdiction has the resources to investigate and prosecute?  In my experience though, if the FBI and USAO want a case, they can pull rank and take it.

An interesting difference is the way a case reaches each office.  On the state level, the police make arrests and then the prosecutors must choose to prosecute the crime or not.  On the federal level, arrests are generally not made until the USAO has given their seal of approval.  This allows the USAO to build a strong case and secure indictments before a person is even aware they are a target.  A DAO comes into the case well after the police conduct an investigation.

Discretion


An ADA has much more discretion than an AUSA.  In a DAs office, there is an elected District Attorney.  Every county in New York State has a District Attorney.  Therefore, there are 62 DAs offices in New York State.

Under the DA, there are numerous ADAs.  The DA sets policies on various types of crimes and leaves his or her ADAs to operate within those policies.  We usually only conference cases with our direct supervisor before proceeding forward.  Very few people are involved in the decision making process.  The DA has prosecutorial discretion over which cases get prosecuted and how.

The Attorney General of the United States is in charge of all the USAO.  Eric Holder, Jr. currently holds the position.  The fact that the federal government is involved makes the decision process much more complex.  AUSAs do not have much discretion.  There are various levels of supervision in each USAO.  Then, those decisions are sent to Washington, D.C. for review by the Attorney General's office.

What can get done in a five minute conversation without one piece of paperwork being drafted in the DA's office would take weeks and numerous memos in the USAOs office.

Day-to-Day

I've posted previously on the day-to-day activities of an ADA (here, here, and here).  The day of an ADA and AUSA are very similar.  Both spend their time responding to voicemails, emails, and going to court.  Also, they spend their time conferencing with witnesses and law enforcement.

The main difference comes in the paperwork and court proceedings.  As I understand, AUSAs spend an incredible amount of time drafting legal briefs for court.  Every issue is litigated on papers before it is argued in court.  In state courts, most legal issues are simply argued orally in open court.

Federal court proceedings are more formal than state court also.  There is a large variation between every supreme and county courtroom I practice in.  But most of the time, conferences, jokes, and questions about friends and family are exchanged between the judges and attorneys.  I've found that the informal conversations between colleagues in state court doesn't exist in federal court.

There are more differences - the application process, credentials needed, the pay (yes the pay!).  We'll address more issues in future posts.

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Trayvon Martin and Justification

An explanation of justification appears in order in light of the Trayvon Martin case.  Justification is the legal term for self-defense.  There are two kinds of justification claims.  The first is using physical force and the second is using deadly physical force.  What follows is a discussion of New York law on the issue.  I discuss some of Florida's differences towards the end.

Physical Force

This is the easy one.  A person may use the same force used against them.  A push for a push.  A punch for a punch.  If you exceed the level of force the attacker used, then you are not justified.  Therefore, you can't use a gun in a knife fight.  Or a knife in a fist fight.  If you do, then you cannot make a justification claim.

Deadly Physical Force


This is where it gets complicated.  A person may use deadly physical force to defend themselves against deadly physical force.  The law requires a multi-level analysis when a person claims they are justified in killing someone.  It depends on a few factors:  1) who was the initial aggressor, 2) killer's actual beliefs, 3) what a reasonable person would believe, and 4) if the person was not in their home, could they have retreated in complete safety.

Initial Aggressor


Killing someone is not legally justified if the killer provokes the fight.  A person cannot bait someone into a fight and then kill them and claim they were defending themselves.  This is true even if the fight starts off as a fist fight.

Actual Beliefs - Subjective Analysis


This analysis takes into account what the killer actually believed.  The person must have actually believed that the deceased was about to use deadly physical force before they killed him.  It is not probably or maybe.  There must be an actual belief.

What Would a Reasonable Person Believe - Objective Analysis


The defendant's beliefs alone are not enough.  Jurors must also decide what a reasonable person would have believed in the defendant's position.  If a reasonable person knew what the defendant knew and was in the same circumstances, would they have believed deadly physical force was about to be used on them.

This is a safeguard against people claiming justified killings in every case.  New York courts have added the reasonableness requirement as an objective analysis to be used in analyzing a case.

The fact that the killer was mistaken does not matter if he honestly believed he was about to be killed and a reasonable person in his position would believe the same thing.

Duty to Retreat


A person is not required to retreat in their home.  But, if you are out on the street and someone pulls a knife on you, you would not be justified in killing that person if you could have escaped safely.  A person has a duty to retreat if they are able, as long as you are not in your own home.  New York does not have a law that allows you to stand your ground wherever you are.

To have a valid claim of justification in New York, the person must not be the initial aggressor, must have had an actual belief that the person they killed was about to use deadly physical force upon them, a reasonable person would have believed the same thing, and they must have tried to retreat.

Florida recently passed a "stand your ground" law.  Basically, it removes the duty to retreat in public.  It allows a person to kill someone if they are lawfully in a public place and feel their life is in jeopardy, without trying to escape the situation first.  From media accounts, it appears that the issue of an honest, mistaken belief and the "stand your ground" law are the biggest snags in this killing of Trayvon Martin.  I've only read the same news as everyone else.  I'm very interested to read all the witness statements if they become available.

A long post, but this video will summarize everything:

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Guns in New York

A recent comment asked for some clarification on gun laws in New York State (thank you Lisa Regan).

This post discusses some of the highlights of New York's gun laws.

Posses a loaded handgun, loaded sawed off shotgun, or loaded sawed off rifle?  "C" armed violent felony.  Punishable by a minimum of 3 and a half years and a maximum of 15 years.

Possess that same loaded gun in your home or at your work?  An "A" misdemeanor, punishable by up to one year in jail.  If the defendant already has a prior conviction, then possessing it at home or work doesn't matter.  It becomes a "C" armed violent felony no matter where it is.

Possess an unloaded handgun, unloaded sawed off shotgun, or unloaded sawed off rifle?  An "A" misdemeanor, punishable by up to one year in jail.

If that unloaded gun's serial number is defaced?  A "D" felony, punishable from probation up to 7 years in prison.  The law also says that if it's in your possession, it's presumed you knew it was defaced.

What about a person who has a permit, but violates the provisions of that permit?  Examples of this are persons who carry a handgun on their person, but only have a permit that allows target practice.  Or a person in Albany County who has a full, valid permit to carry, but carries the gun into New York City without special dispensation from the commissioner of police.  That's an "A" misdemeanor, punishable by up to one year in jail.

What about out of state permits?  New York doesn't recognize them.  So, if you carry a gun in NY and you have an out of state permit, you'll be treated like you had no permit at all.  That means a "C" felony, punishable by 3 and a half to 15 years.  This was one of the reasons Plaxico Burress got in trouble.

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Caught in a Lie

lie    [lahy]  noun, verb, lied, ly·ing.

noun

1. a false statement made with deliberate intent to deceive; an intentional untruth; a falsehood.

2. something intended or serving to convey a false impression; imposture: His flashy car was a lie that deceived no one.

3. an inaccurate or false statement.

4. the charge or accusation of lying: He flung the lie back at his accusers.

verb (used without object)

5. to speak falsely or utter untruth knowingly, as with intent to deceive.

6. to express what is false; convey a false impression.

Prosecutors are routinely reprimanded when they use this word during a closing argument.  That's especially true when we call a defendant's version of events a lie.  Many New York courts say it's prosecutorial misconduct to call a defendant a liar during a closing argument.  Sometimes, that misconduct allows an appellate court to throw a conviction out and grant a new trial.  Imagine that.  After somehow finding twenty or so witnesses, coordinating schedules, securing their testimony, and getting twelve strangers to agree on a verdict of guilt, the court tells you to do it again.

Every person on the planet probably utters the word at least once a day.  So why do the courts despise the word?  Attorneys are allowed to call a witness's version of events into question, call it unbelievable, not worthy of belief, not credible, or any other permutation.  But not the big "L" word.

Part of the courts' reasoning is that calling someone a liar is an attorney expressing their opinion in the case.  That is something attorneys are not allowed to do.  The jury is supposed to be swayed by evidence, not an attorney's belief.

The courts consider use of the word "lie" inflammatory as well.  Calling a testifying defendant a liar is akin to saying he committed perjury.  We wouldn't normally be allowed to hurl accusations at a defendant without proof, so the courts tell us the word isn't appropriate.

But what's the difference when we use words like "unbelievable" and "simply can't be true"?  Don't these phrases really mean "lie"?

Words are a trial attorney's tools.  We refine, sharpen, and sling them together to convince jurors that our side is correct.  Sometimes attorneys cross the lines of legal argument and move into inflammatory rhetoric.  Many times, however, we find out we crossed the line when an appellate court tells us.

My personal favorite line that didn't use the word lie?  A prosecutor said on summation, "Ladies and gentlemen, it's surprising the Bible didn't burst into flames when the defendant put his hand on it and swore to tell the truth."

What do you think?  Is using words like "lie" or "liar" crossing the line?  Or should it be fair game? 

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