Nothing Nice to Say? Try This

It was a nasty case, complete with two armed home invasions where children were duct taped, a shooting, a kidnapping, an attempted murder of a police officer, and lots of resisting arrest. It's the type of case that usually garners a long prison sentence due to the severity of the many crimes.

Once I finished my spiel at sentencing, discussing the heinousness of the crimes and the utter lack of remorse from the defendant, what else can a defense attorney say?

He's a good guy who made a mistake?
He's kicked his drug habit?
He is very sorry?

Nah. The attorney knew none of them would be true or likely to mitigate the sentence. Like any good attorney who has the facts stacked against them, this attorney ignored them. He argued that the defendant's sentence should be lower because of the significant piece of legal precedent this defendant had set. The case was reversed by the Appellate Division because the police used excessive force to obtain his DNA sample and this was his second sentencing on the same case. This, the attorney argued, has been a landmark decision and will affect the collection of DNA samples by law enforcement in the future. Isnt' the fact he was used as a guinea pig the first time around enough to warrant a minimum sentence?

Turns out it wasn't.

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Just a Quick Pic

When I look out my office window, I stare across the street into the windows of the holding center, a temporary detention facility for defendants awaiting trial. The fact that I walk out of my building some days and come face to face with the family members of persons I am prosecuting is not lost on me.

But some days it provides amusement. I was crossing the street back to my office from the side with the holding center on it. A woman sat in her car, cell phone aimed at the holding center's windowed facade. I didn't think about it until I crossed between her and the building.

"Hey," she said.

I looked at her.

"Do you mind?"

"Mind what?"

"I'm taking a picture here."

I look at where the camera was facing and see a young male in the street, holding up a plastic bag with his name on it. I recognize it immediately as the personal property bag jailed defendant's possessions are housed in. He's holding it up towards his mother and smiling.

"It's his first time being locked up," she said.

I apologized for the intrusion and walked away, hoping that the single photograph is not the beginning of a lifelong album.

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Like Father, Like Son, Like Brother?

As my wife and I pondered what to name our baby, we tossed around many names. Some we hated because of the sound, some because of the negative connotation it draws from knowing someone with that name. The conversation turned to whether we should name a baby boy after me. After all, I have my father's name. We have different middle names though so I am not technically a junior.

Then I remembered growing up. My mother yelling my name when she was calling for my dad or vice versa, opening my father's mail, answering my father's phone calls, and I still get all his AARP information.

In the end, we decided against it. But the conversation shook a story loose from the annals of my job.

A defendant was arrested for gun possession. Only, the arrest took place a month after the police saw him with the gun. He threw it and the police couldn't catch him that day. They knew who he was and arrested him the next time they saw him.

But there was a hiccup in the scheme and some things didn't add up. The defense attorney allowed us to talk to his client because he thought he was innocent. The conversation went something like this.

"Tell me your name," I said.

"Thomas Aaron Simpson," he said.

"What do you want to tell me?"

"I didn't do it. It was my brother. The cops arrested the wrong man."

I'd heard this story before. "Okay. So what's your brother's name?"

"Thomas Aaron Simpson."

"No, your brother."

"Thomas Aaron Simpson."

"No, not your name. Your brother's."

"Thomas Aaron Simpson."

The defense attorney gives me a little kick under the table, helping me realize I was mistaken.

Sometimes you just ask the obvious question. "So you and your brother are both Thomas Aaron Simpson?"

"Yeah."

"Okay. Same mother, same father, or both?" I wanted to get some more detailed information to investigate.

"Same father."

"What's his name?" I should have known. I really should have.

"Thomas Aaron Simpson."

"All right. So where were you the night the police thought they saw you with a gun."

"I was home from the hospital with my wife and son. I'd just accidentally stabbed myself with a machete and just got home."

The first accidental machete stabbing I'd heard of.

"What's your girlfriend's name?" I needed to investigate the alibi.

"Cassie."

"And your son?"

Do you think I should have guessed the answer by now? You'd be wrong.

"Thomas Aaron Simpson."

As it turns out, Thomas Aaron Simpson's DNA did not appear on that handgun. None of them. We dropped the charges.

And I did not name my son after me.

Like all my anecdotal posts, this is drawn from a mixture of cases and situations and was not a verbatim conversation from any one particular case or in any way providing confidential information. Nice disclaimer?

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Courtroom Perils

The danger of being a defense attorney:

Even inanimate objects aren't safe:

Even the guys with guns must be careful (what is the guy in the audience doing?):

I've never witnessed anyone get punched in court, but I have seen some fantastic freak outs and screaming matches.  An unhappy defendant is usually mostly upset with their attorney first, the judge second, and, thankfully, the ADA on the case last.

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Breaking the Habit

The thing I enjoy most about my job is the people.  Even when I complain about them, I still enjoy them. 

You see, I get to work with lawyers, judges, doctors, accountants, medical examiners, cops, scientific experts, suburban housewives, derelict dads, thieves, murderers, rapists, neglectful mothers, child abusers, and con artists.

And that's just in one week.

Many of my cases involve a cooperating witness.  This is someone who is either part of the crime and agrees to testify against the other participants or someone who knows about the crime and agrees to testify in exchange for a deal on their case (think jail house informants).

They all come with their own baggage.  You can read here for a discussion on that.  It's just the cost of doing criminal business.  Criminals witness homicides at a far greater rate than suburban grocery store managers. 

I usually find the cooperators entertaining and intelligent.  It surprises me every time.  I get the feeling that if they were to direct their energies outside the criminal world, they would be a productive society member.

But then there are the other ones.  Like this female who was going to testify against her brother in two horrific assaults and attempted murders.  This girl, call her Jasmine, liked to steal.  Purses from a store, cash from a register where she worked, or credit cards from a community center where she was doing her court-ordered volunteer work.  She really didn't have qualms about the place as long as it had something of value.  She had been in jail for the four months while I was meeting with her.  It was at our last meeting, the one I told her that the defendant pleaded guilty and the case was over, that she told me she was pregnant.

She wanted to get out of jail with a time served sentence.  She was terrified of having the baby in jail.  She didn't want probation with a new baby.  The baby would be the impetus to turn her life around.  The judge obliged with a time served sentence.  Jasmine went on her way to turn her life around.  We were confident we would never cross paths again.  Well, she was confident.  I was hopeful, not confident.

Until I saw the wanted posters.  Apparently, Jasmine was on video stealing thousands of dollars from a few different stores in the last month and the police were asking help in finding her.  Apparently, I'll be seeing Jasmine sooner than we anticipated.  I already know her reasoning - it was for the baby.

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That's My Work, Son!

There are many cases where you just find the police story a little too far fetched.  A little too unbelievable.  Sometimes we need a life lesson to reinforce those times.

I play in a weekly basketball league.  My opponents are all at least ten years younger than my team.  It's a league to benefit inner city youth and to help provide opportunities off the street.

This past week, I witnessed something I never thought I'd see in life, let alone a basketball court.

I sat in the bleachers, waiting for the game before me to finish.  A player on the team currently playing had just subbed out.  The ref walked over to him, holding something.  The game was still going on.

"You dropped this," the ref said.  The ref held out a plastic bag.
The player didn't pay attention.
The ref pushed the player's shoulder.  "Hey, you dropped this."
My attention is drawn to the interaction.  The ref held a clear sandwich bag.  Inside, are tiny rock-like crystals.
"Oh, damn son.  That's my work, son.  I dropped my work."
The player took the bag and pocketed it again.  Then he substituted back in the game with the goods still in his pocket.

A few issues.  First, it's a league to keep youth off the street, not bring the street to the league.  Second, how could he possibly keep playing basketball with the bag?  He couldn't have put it anywhere else?  Third, crack-cocaine should not be called work.  (Interesting note, I also learned this week it's called an onion on the streets).  Fourth, if an officer brought this fact pattern to me, I would have a hard time believing someone was so stupid.  Sometimes I need to see to believe.

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Up In Smoke

My Pro Se series usually focuses on defendants.  But sometimes, the police need to get involved.

Here's the best story of late.

Suspect robs victim of a cigar (meaning suspect punches victim and takes the cigar.  A robbery by definition, but it may not remain one when our office sees it).  Suspect is found ten minutes later carrying the same brand of cigar the victim described.  Suspect is brought back to the precinct for questioning.

During questioning the police ask if the suspect wants anything.  He says he can really use a smoke.  A cigar if they have one.  Sure, the police say.  We've got one.  What about that one you came in with?

And that was the end of the possession of stolen property charge.

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Notices

We call it a 710.30.  It refers to the section in the NY Criminal Procedure Law that requires us to notify the defendant within fifteen days of his arraignment of any statement he made to the police that we want to use against him at trial.  Otherwise, we can't use it.

As part of the arrest paperwork, police officers provide this notice in writing to the defendant.  The statements are then litigated later on to determine if they were voluntarily made.

As part of our pro se series I'd like to introduce 710.30.  These are statements defendants have actually made to police officers before or after arrest.

The police were called to a store for complaints of a person stealing.  By the time the police arrived, the defendant had left.  The store video crystalized his image forever, however. 

With the video, the police were able to locate a suspect matching the person seen stealing in the store video.

They brought him back to the store and showed him the video.  The questions that followed:

Defendant:  (while watching video) That's not me.
Officer:  Unless you've got a twin, that's you.
Defendant:  I do got a twin.
Officer:  (thinking he may have made a mistake)  What's his name?
Defendant:  Jamaar
Officer:  (believing he may indeed have the wrong person) What's his date of birth?
Defendant:  I don't know that.
Officer:  You're under arrest.
Defendant:  Why?
Officer:  His date of birth is the same as yours.
Defendant:  Oh yeah.  Ya got me.

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Priorities

Every case tells a story.  Some funny, some sad, but always different.

When a juvenile is treated like an adult it is because the charges are so serious, usually involving serious injuries to the victim.  But, the defendant is so young.  I always learn more about young defendants than the older ones as defense attorneys and judges delve deeper into their background to see if there is any help.

In a recent case, the defendant, along with a few others, set up a delivery driver for a robbery in an abandoned house.  They used guns and a two by four to do the job, leaving her some permanent head injuries together with some permanent memories.

We had a very strong case against the defendant.  There wasn't much room for the defense attorney to maneuver, except to work out a plea.  The defendant plead guilty.  His attorney claimed mental deficiencies and behavior disorders caused the defendant to follow others.

The attorney hoped the judge saw fit to seal his record and give him probation.  If not, the defendant faced up to fifteen years in jail. 

A psychologist interviewed the defendant regarding his mental abilities at the attorney's request.  The psychologist asked the defendant what was going to happen to him at sentencing.  He wanted to assess the defendant's feelings about going to jail.

The defendant hunches his shoulders, slouches in his chair.  He scuffs his feet against the floor and casts down his eyes. Finally, he speaks:

"That judge ain't gonna let me smoke weed again."

Jail didn't bother him too much.  He just didn't want to give up his hobby.  Funny and sad.

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Defendant's Letter

It's pro se Friday. It is not unusual for a defendant to send a letter directly to the district attorney handling his case or even the judge.

I've had letters that contained confessions to crimes, expressed their anger with the police, threatened the judge, threatened me, and provided apologies to the victims.

My office has even received letters containing a defendant's bodily fluids. Thankfully, I haven't received one of those and the letters are screened first.

This is one of my favorites. Clear, concise, and to the point. Especially the part about not wanting to cost the taxpayers any more money.

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Courtroom Conversations

I hope you enjoy some of the comments I hear on a daily basis.

1) An ADA handling an appeal of a robbery case I tried a few years ago called to discuss the case:

Appeals ADA: Do you remember this case?
Pros. Dis.: Sure do. What's the issue?
Appeals ADA: I can't believe we got a conviction with that evidence.

Thanks for the support.

2) During my last trial. The defendant stabbed the victim in the abdomen severing an artery and causing doctors to remove a piece of her stomach. Our witnesses saw the defendant picking up a knife from the ground.

Defendant's father talking to defendant's attorney during a break in the trial:

Damn, you know that b***h is lyin'. You don't get those injuries from stabbin' with no knife. You get it from usin' an icepick.

Thank you sir. I did not discover how he knew that.

3) During a bail argument:

Prosecutor: In addition to the strength of our case, I should note the defendant has forty-three prior convictions.

Defense Attorney: Judge, I would like to note that only two of those are for felonies. And, of those forty-three convictions he has not had one warrant for failing to appear in court.

Judge: He should be very proud. Bail reduction denied.

You have to applaud the effort.

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On the French and Indian War, and other things

Another round in our Pro Se section. Our subject today claimed to have fought in the War of 1812 and the French and Indian War on the side of the Native Americans. These claims were made once the defendant was in custody on . . . you guessed it - DWI. His second one in ten years which makes it a felony. After failing the sobriety tests and the breathalyzer, Mr. defendant told the police about how he scalped many settlers during those wars.

Now that's some good evidence for a DWI case, which probably helped convince the defendant to plead guilty. It's even better when we saw Mr. defendant walk into court for sentencing on his felony DWI wearing a different type of shoe on each foot with each one its own color. A gift from deceased settlers perhaps?

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Pro Se

Pro Se means a person who represents himself or herself. I will hopefully provide some interesting and amusing courtroom tales under this category. Maybe this will turn into Pro Se Friday?

It's a robbery case and the witnesses are testifying at the felony hearing. There are two defendants caught and a third one we are still looking for. A felony hearing is a hearing to show the court there is probable cause to believe the defendants committed a crime so the case can move forward to the grand jury stage.

Witness 1 is on the stand during the felony hearing:

ADA: "Do you see any of the people that robbed you here in court today?"
Witness 1: "Yes."
ADA: "Please point to the person or persons and identify an article of clothing they are wearing for the court."
Witness 1: "There in the blue shirt" Pointing to one of the defendants.
ADA: "Anyone else?" Hoping they identify the second defendant.
Witness 1: "Yes." You could hear the relief in the ADA's sigh. "In the back row in the blue and white striped shirt." Pointing into the audience. Now you could hear the terror in the ADA's sigh as he tried to figure out what to do.

Witness 2 is on the stand who was not in contact with witness 1 during or after witness 1's testimony. The ADA just asked this witness to identify the defendants.

Witness 2: "In front of me in the blue shirt and the one next to him in the red shirt." ADA is very relieved that both defendants were identified when witness continues. "And back there in the blue and white striped shirt." Pointing to the same man in the audience.

Turns out our last robber came to support his buddies. I thought this only happened on television. I asked myself why he didn't just leave after the first witness pointed to him which everyone thought was just a mistake.

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