The Emotional Courtroom

The defendant had just turned 16. It's a milestone in every person's life - driver's license, proms, SATs. In the New York criminal world, it means graduation. A graduation from family court to adult court. The change from family court where the main goal is to address the needs of the juvenile to adult court where the main goal is deterrence of crime is often jarring.

And most kids just don't get the difference until it's too late.

The defendant had not appeared for the previous court date, but due to her age the judge agreed to allow her another chance to appear a month later. The date rolled around and again the defendant does not show. The judge issued the warrant, meaning the police would actively hunt for her.

She did show up that day, hours late and with her mother. The defendant claimed she did not really understand how serious the charges were. The judge had heard enough excuses in this case and probably her other cases and the situation warranted an increase in bail. In most of these teenage defendant cases, the parents take center stage when anything bad is about to happen to their children.

This mom made no exception. She arrived in jeans and a tight, teal tee shirt, with eye shadow to match. She stood in the front row as the judge increased bail, the tears dripping down her face and soaking her shirt. She made no efforts to stop the flow. She begged the judge not to take her baby away, because her other baby was already in jail. She was homeless right now and needed her daughter to sleep with at night.

The judge allowed mom to say whatever she needed, and then, calmly and rationally, explained why the bail was increasing. She kept emotion out of her decision and even left open the possibility of releasing the defendant if mom was able to pull her life together.

It's a difficult world and some lessons are learned the hard way.

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Veterans and Specialties

I was at a store on Saturday with my wife and niece.  We were walking towards the cash register when we passed a gray-haired man in a black cowboy hat with a Vietnam Veterans patch sewn on it.  A mother and child in front of us stopped abruptly and ran behind us.  The boy, about eight I'd guess, ran up to the man and said, "excuse me."  The man stopped without a word.  The boy said, "thank you for your service.  My grandpa and great grandpa served.  I appreciate it."

They shook hands and the smile from the man's face could be seen from outside.

The best way I know to say thank you is through the written word.  These words, however, will fall short of the deep appreciation I actually feel.  For hundreds of years, men and women have agreed to put their country before themselves and battle for those of us that either don't want to or cannot.  The soldiers do not care who we are or what we believe in, so much as what America stands for.  The selfless tasks performed by soldiers every day is a stark reminder that what is truly important in life is often unheralded.  Thank you to all those who have ever served on my behalf, overseas or at home.  You are the ones who have made my choices in life possible.  It hardly seems right that I receive a day off in honor of other people's sacrifices.  Shouldn't I have to volunteer or something like that today?

Now for the legal aspect of the post.  Soldiers face difficult tasks when returning to the life of a citizen.  Some have been in war zones and have a difficult time coping.  As prosecutors, we see the effects daily.  We handle many cases where veterans are arrested for drugs or violence.  Then, we face the difficult task of deciding how to handle these cases.  Do they receive special treatment because of the soldier's past?  Should they be treated like any other person in the system?

New specialty courts appear every year.  In my county, there is a drug court, DWI court, youth court, mental health court and now a veterans court.  The idea behind these courts is that the cases sent there require specialized attention and services necessitating different treatment.  If you don't fall into one of these categories, then you don't get the special services the courts offer.  The motivation behind specialty courts is admirable, but is it fair?  Should different groups of citizens be treated and offered separate services?  Should the courts even be involved in this?

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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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Who Decides the Sentence?

So who makes the ultimate determination at sentencing? How much say does the ADA have? What about the victim? The judge?

As it is with all legal questions - it depends.

There are different stages of a proceeding and all have different rules. Find a guide to these stages here.

1) Pre-indictment

Prior to a grand jury indicting a defendant, a defendant can only plead guilty with the consent of the DA's office. If we consent to a guilty plea to a reduced charge prior to indictment, we can also insist on the defendant's sentence or leave it up to the judge.

If the defendant doesn't like our conditions, we do not have to allow the plea. Also, the court does not have to accept the plea if they disagree with our sentence. If it remains open, that means the judge decides what the ultimate sentence is. The advantage of pre-indictment pleas for a defendant is their is an ability to control which judge accepts the plea and will impose sentence.

2) Post-indictment

A defendant can plead guilty at any time to all the charges once he is indicted. If this happens, the judge has the sole discretion in sentencing.

If we offer the defendant a plea to a lesser charge following the indictment, we can attach sentencing conditions to the plea or leave it open as described above.

3) Guilty Verdict

Following a guilty verdict after trial, the judge is the sole decider of the defendant's fate. We can no longer attach any conditions.

In any scenario, the victim is allowed to address the court and let the judge know their wishes. A victim can speak in open court or submit a letter. How much impact that has on sentence is left up to each individual judge. In the majority of my cases, victims rarely want to speak at sentencing. When they do, it usually has a strong impact on the judge's decision.

The DA's office, defense attorney, and defendant also have the opportunity to speak, if they wish and address any topics related to sentencing.

An interesting note - the district attorney's office does not need the victim's consent to offer a reduced plea. It is part of our discretion. In practice, my office always discusses this situation with any victim and seeks their opinion.

Do you think a victim should have more control over what happens? Is it fair to leave it up to one judge as opposed to a panel? What are the ramifications of allowing the prosecutor and defense attorney to select the judge who accepts a pre-indictment plea?

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Path of a Criminal Case

It is a complex legal system, especially in New York State. I hope to shed some light on how a case moves from arrest to trial.

1) Someone calls the police. This is probably the most important event. A single individual possesses the power to send hundreds of years of legal action in motion with just a phone call. The call usually consists of a description of the crime and a description of the suspect.

2) The police investigate. The police speak to the 911 caller, the victim, and any other eyewitnesses. They also begin to gather evidence related to the crime. Based on all this information, they attempt to arrest the individual responsible.

3) The arrest. The police arrest a suspect based on probable cause. This means that there is sufficient evidence to believe the suspect committed the crime. After the arrest, the police attempt to obtain a statement from the suspect and have the witnesses identify the suspect in a line-up or some other identification proceeding.

4) The police file charges. This begins the formal court proceedings and the defendant is brought in front of a judge and arraigned on a felony complaint based on the charges filed by the police. This is usually the first time the district attorney's office becomes involved in the proceedings.

5) The felony hearing. The district attorney's office must put witnesses on the stand to show the court credible evidence that the suspect committed the crime. This usually consists of the witnesses to the crime testifying in open court and identifying the defendant as the person who committed it. It is a procedural safeguard to ensure a person does not remain in jail for more than a few days without the court seeing some evidence against them.

6) Grand jury. If the court decides there is enough evidence to move forward, the case is held for action of the grand jury. This means the district attorney's office is required to present evidence to a grand jury. The grand jury is a secret proceeding and the grand jurors decide what crimes the defendant should be charged with based on advice from the district attorney's office. This usually varies widely from the initial crimes the police arrest the defendant on. The grand jury has the power to dismiss a case, ask for more evidence, or vote on any charge not submitted to them. Plea negotiations are taking place before the case is presented to a grand jury in an attempt to resolve it prior to an indictment.

7) The superior court arraignment. After a defendant is indicted by a grand jury, he is brought in front of a supreme court judge and arraigned on the criminal charges in the indictment.

8) Pre-trial hearings. The case is set down for pre-trial hearings. These hearings are held in front of a judge who determines whether the police acted appropriately in searching the defendant, obtaining a defendant's statement, or conducting an identification procedure, among other issues.

9) The trial. The case is tried in front of a jury. The prosecutor has the burden to prove the defendant guilty beyond a reasonable doubt of all the crimes charged in the indictment. If the jury is satisfied with the evidence, they can find the defendant guilty. If not, they can find the defendant not guilty.

10) The appeal. Every defendant is allowed an appeal for a conviction as a matter of right to the appellate division in New York State. Subsequent appeals to higher courts are discretionary.

A defendant can plead guilty at any stage of the proceeding after a felony hearing is held or waived. There is legal criteria surrounding the plea I will save for another post. Does this help you understand the court system better? What else would you like to know about it?

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