When the Secret is Out

Next week I begin a trial that I finished last month. Why is that? The court severed the two defendants and required they be tried separately because they each made statements that implicate the other one. It's what we call a Bruton issue.

This basically means that when one defendant makes a statement to the police implicating the co-defendant, the defendant who did not make the statement has the right to sever his trial from the confessing co-defendant. The reason is that the defendant who did not make the statement cannot cross-examine the defendant who made the statement to test its veracity in front of the jury. This violates the Confrontation Clause of the Sixth Amendment.

In my case, both defendants made statements and moved to sever from each other. We tried the main actor in the first trial and now try one of his conspirators. This second trial is more of a legal argument than a factual one. The ultimate question is whether the jury can find a person guilty in a shooting if they were not the one to pull the trigger. It is a question of accomplice liability.

Under New York State discovery rules, the prosecutor is not required to disclose witness statements until just prior to opening statements. In most cases of this violence, we follow these rules to eliminate the issue of witness intimidation. Obviously, this puts the defendant and defense attorney in a difficult situation when discussing strategy prior to trial.

The second defendant to be tried next week has ordered all the transcripts from the first trial. That means there will be no surprises in this case. The attorney, with his client, will have ample amount of time to prepare for the witness' testimony and will even know our arguments well in advance to be able to prepare for them. This trial will be more like a civil trial where all discovery is done well in advance of trial.

There is a movement across the country and specifically in New York State to require disclosure of witness pedigree information and statements months ahead of trial. Where you fall on this issue usually depends on which side of the criminal justice system you have been on. As prosecutors, we routinely see our witnesses approached, threatened, bribed, and tricked when their name leaks prior to trial. How many times does a victim need to be victimized? Why should we risk the identity of people when they are actually willing to come forward? And it is only getting worse. Defense attorneys and defendants want the ability to investigate a case fully and speak with all the witnesses, and demand that fairness dictates early disclosure of statements.

I have seen the threats that occur with early disclosure, but see the merit in the defense attorney's argument. Should there be early disclosure even if it leads to further harm to a victim or a witness? Does a defendant have a right to early discovery?

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Do I Gotta Come?

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

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

Me: District Attorney's Office

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

Me: What's your name?

W: I ain't comin' to court.

Me: Okay, but what's your name?

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

Me: Okay, but who are you?

W: Why you want to know?

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

A long pause.

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

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

Silence.

Me: You still there.

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

Me: Yes.

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

Me: Why don't you want to come?

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

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

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

Me: Whatever time works for you.

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

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

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Death or Jail?

I'm reminded every day of the harsh reality of life on the street. I have daily conversations with witnesses about why they should testify in a case. The inevitable response is some variation of "You don't know what it's like" or "You don't live in my neighborhood."

The first statement is not true. I know exactly what it is like, probably more than the person I'm speaking to due to my long and intensive investigations where I get to know every detail about all my suspects. The second statement is true. I don't live in the neighborhood where all these crimes are committed. Nearby, but not in gang territory. There is not a chance I'll take a stray bullet while walking down the street with my family or that I'll walk into a store and get caught in the crossfire of a gang war.

That is why I'm trying to help though. I want to make life easier for the good people of the inner city, even the people that don't want my help.

But what about this choice a person must make? Defendant Smith is arrested by the police officers for a robbery, together with two other men who were walking with him. The two other men are identified by the victim, but Defendant Smith is not. The police process Defendant Smith anyway for the robbery with slim to no evidence. The investigation determines that Defendant Smith was not involved in the robbery and, therefore, we will dismiss his charges. There are strings, however, because Defendant Smith is now a witness. He was walking with the true culprits moments after the robbery so he probably has relevant information about statements they made or there whereabouts before the three met that night.

Defendant Smith (who is now Witness Smith) is subpoenaed to testify at the grand jury. We debrief him before his testimony and Witness Smith says he won't testify. He would rather get locked back up for the robbery and take his chances at trial before he testifies against his friends. For Witness Smith, he'd rather serve a lengthy prison sentence for a crime he had nothing to do with than risk getting harmed or getting his family harmed by testifying against the defendants. Is there something wrong with the witness? Something wrong with the system?

When I interview potential ADAs, I always ask for examples of how they relate to ethnically and financially diverse populations. I want to know how they can speak to people and relate. Can they convince the hesitant witness to testify? How would they handle Witness Smith's situation? Their answers provide a glimpse into their ability to convince reluctant witnesses to testify.

Ultimately, we would dismiss Witness Smith's charges despite his request and the subpoena would force him to testify or face further criminal charges. But maybe that's what Witness Smith would want anyway? He might want to stay in jail on criminal contempt charges instead of live on the street as a witness.

Life is difficult and another person's reality is always far worse than mine could ever be. I don't pretend I live in the neighborhood. I don't pretend I face the same struggles. I just tell them the truth about their situation and how the case will proceed. For prosecutors, the truth should be the only option.

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In the Line of Duty

There have been some stark realities recently about what it means to be in law enforcement. 

NYPD Officer Dennis Guerra was killed while running into an apartment building to save lives after the call of a fire, which was set by a 16 year old arsonist.

Officer Guerra left behind four children and a wife after making the ultimate sacrifice. Head over to Huff Post for some incredible pictures of how the NYPD mourns one of their own.

The suspect, Marcell Dockery, is 16 years old, and in New York State that means he will automatically be tried in supreme court. He is currently charged with murder in the second degree.

In North Carolina, the father of an Assistant District Attorney was kidnapped and beaten over the course of four days until the FBI tracked his location and rescued him. Five people were implicated in the kidnapping, including an inmate convicted by the ADA. The inmate apparently smuggled a cell phone into his prison and was able to orchestrate the kidnapping using it.

The murder trial for one suspect accused of killing two prosecutors is in the beginning process of jury selection in Texas.

Even in my own office, there have been two times in the last month when prosecutors have been threatened over the phone. Also, a defendant on trial tried to strike the ADA trying him with his car.

The further I move along in my career as a prosecutor, the more serious the cases become. The more serious and far-reaching the investigation, the more dramatic the consequences for the accused and usually the more violent the targets. It's reality. Most days I don't think about it, but there are definitely times I look over my shoulder a few times when I'm leaving work late at night while I'm on trial with a murder case.

It's no secret that the police and prosecutors follow social media, listen to phone calls, and have other investigative means. My name is mentioned frequently by defendants I'm prosecuting. It's always disconcerting, but there have never been legitimate threats. Usually, it's just jokes to their friends.

It's a reality of choosing to fight for victims in court. Intimidation is one of the biggest problems I face in  persuading witnesses to testify. Unfortunately, it seems to be spreading to the public servants themselves. This isn't to say defense attorneys and judges are immune from the intimidation. There are many cases we investigate where defendants are stalking or harassing their attorneys, or a defendant obtains the cell phone number for a judge somehow and leaves horrible messages. Technology has made intimidation easy and anonymous.

This last month has served as a reminder of the dangers we all face in trying to do the right thing. The intimidation doesn't drive me away. It just strengthens my resolve to find justice. The suspects that have the means and choose to carry out their threats are the ones we need to focus on. Their level of intimidation is pervasive on the streets and will make life better for the citizens who have to put up with it every day.

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