Make the Prosecutor's Decision

A girl meets a boy on Facebook through a mutual "friend." She thinks he's pretty cute so she decides to send him a message. He accepts the friendship and invites her over to his house. Welcome to teenage dating in 2014.

You're already thinking to yourself that this kind of story can only have a romantic ending, right?

The girl goes to the boy's house in the middle of the day. She knows she's meeting up to have sex with the boy. It's just the way things go where she grew up. She goes in the house and her and the boy partake in the agreed upon acts. But this is where it starts to go wrong.

The boy's friends are all in the room and they decide to have sex with the girl too. She protests, after all she did not sign up for this, but the boys do it anyway.

The girl calls the police once the hours long ordeal is over. She wants the boys arrested and charged with rape. The boys are all interviewed and claim she consented to the group sex. It was why she came over.

Essentially we are left with her testimony versus the boys statements. She admits to consensual sex with the first boy, but says it quickly became nonconsensual and it definitely was not consensual with the other boys. If we can prove the charges, it is definitely rape. The police call me as a prosecutor and ask, "What should we do?"

These are the types of situations we face every day. Can we prosecute this case? Should we prosecute this case? Check back on Wednesday for a view into how we decide what to do and how to do it.

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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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A Trial Nobody Cares About

Part of this site's purpose is to provide a glimpse into the world of the prosecutor. I want to give you a view into who we are and what we really do. There are television shows, books, and movies where famous actors portray the prosecutors and defense attorneys as they battle in some high profile case.

That's not me. I'm one of thousands of anonymous women and men. I'm in the trenches fighting over territory long abandoned by most of society. I'm what you'd call an upper middle class prosecutor. The cases I'm assigned are very serious, very complex, but not usually the ones that end up in the news. The cases that receive daily coverage are reserved for a few select prosecutors. The only ones that end up caring about the results of my cases are the defendant and the attorneys, and sometimes the victims.

That's part of the reason you have not heard from me in so long. I just finished a trial where a defendant tried to execute three people on a city street. His target was one man who he had a feud with and two other people who happened to be witnesses. There is a pending co-defendant whose trial is a few weeks away so I am barred from saying much more than that right now.

The amazing part to me is that the media ignored this horrific and brutal violence. The local news reported on fist fights at wealthy locations, graffiti at high schools, and other low level crimes during this trial. A reporter never set foot in the courtroom to catch a glimpse of what life is truly like on some of the streets in a major urban center. No one ever asked a question of what motivated a man to commit such heinous crimes.

It's not that I want my cases in the news. Heightened media attention brings with it a heightened scrutiny both from within the office and outside of it. I do my best work in anonymity and far away from the spotlight that shines when a case is on the front page. It just struck me as a reflection on the world we live in where this horrific act, which would have been a mass homicide if successful, barely registers as news because of where it occurred and maybe who the targets were. One of the frustrations with this blog is that I cannot shine the light on cases or issues that should get attention. It's part of the rules I created this by though. I cannot discuss pending cases.

Plenty of drama occurred in this trial, including witness intimidation, the defendant discussing how good our opening statement was in his jail calls, and how we waited for the defendant to open the door to allow us to use his confession as evidence. But it all has to wait. The verdict was guilty, which is another story for a different post.

I apologize for the delay between posts, but maybe I should take more breaks. My daily and monthly views are more than double than when I was posting a few times a week. Supply and demand? Absence makes the heart grow fonder? There's probably no correlation, but I do hope a few new readers and old ones enjoy when the curtain is pulled back a bit in the criminal world.

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An Unexpected Absence

I am sorry for the delayed and unexplained absence. I have had two successive, intense trials, sleepless children, many other cases, and have moved houses since my last post. I did not have the time or internet connection to post anything. Those of you waiting for email responses, thank you for your patience.

A lot has happened and there are some great things to discuss. But I am typing this post while kneeling in front of my computer because we need a new chair. I had been using a dining room chair, but that has since been reacquainted with the set. I will be back this week and every week after as long as you will keep reading.

See you when I can write while resting on my rear again, something I had clearly taken for granted most of my life.

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A Hung Jury

It was the first time it's happened to me. After a week of testimony and hours of deliberation, the jury declared they would never be able to reach a verdict. They were "hopelessly deadlocked" as the law requires.

What it really means is that I must endure the stress of a trial again. The victim and witnesses must answer questions on cross-examination about their past misdeeds. The police officers must recount their  investigative steps and what they missed. All the secrets are exposed and both sides have to regroup to try it again.

Everyone says the hung jury is better than an acquittal, which is true. But the only benefit to an acquittal is a finality to the proceedings. The loss is difficult to take and usually creates a tremendous amount of self-examination, but that chapter is closed both for myself and the victim. A hung jury pushes all of my work into a state of limbo. I can't really proceed with other cases as this one will be tried again soon.

The advantage of a retrial is the case weaknesses were clearly exposed. I need to do a better job in jury selection addressing the issues and a better job at trial explaining why the police did some things, but not others. I've stopped counting the number of trials I've done at this point. During every trial, I encounter something I've never seen before. It's what keeps me coming back I guess. It never gets boring.

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An Interview with Deborah Halber

Last week, I reviewed The Skeleton Crew by Deborah Halber. After reading it, Deborah was kind enough to answer some questions that might interest you the reader. Here is the interview and here is the link to the review.
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Prosecutor's Discretion: In the book you are pretty open in discussing your experience with P. Michael Murphy from Clark County, Nevada's medical examiner's office, which encompasses Las Vegas. You were unable to make it all the way through the maze of deceased humans waiting for autopsies. Did you think you'd have those issues? How do the people who deal with death every day avoid breaking down?

Deborah Halber: I--like most of us in modern society--am pretty removed from death, but I didn't anticipate that my reaction of horror and sadness would be as overwhelming as it was. I asked many of the death investigators and coroners how they dealt with being confronted by death on a daily basis, and they all said essentially the same thing: you get used to it. 

PD: Many of the main characters in your book, like Betty Dalton Brown and Todd Matthews, had traumatic experiences with death in their families. Did that sort of experience generally serve as the motivation for one to join these networks?

DH: Feeling that death was not a stranger seemed to make Todd more comfortable with the notion of interconnecting his life with a young woman's death. Betty Brown, Lauran Halleck and Bobby Lingoes had all lost loved ones, which made them perpetual seekers of a sort. Not being able to find closure herself, Betty told me, motivated her to help others find it.  

PD: After seeing the interaction of the law enforcement and the volunteer community, how do you think it could work better together?

DH: I hope this book encourages some in law enforcement to reconsider their relationship with the public. These citizen sleuths have a lot of contribute, and not just in terms of case-solving or online investigation. They could be liaisons with families of the missing, input data, or collect family DNA samples.  

PD: Will anyone ever solve the Lady of the Dunes?

DH: I might be naive, but I'm holding out the hope that she will be identified within the coming year. Even though the Provincetown police were not happy with my presence at the third exhumation, I was  excited to witness it. It felt like an historical occasion, and the latest DNA analysis may come up with something that others missed. 

PD: Will you be a contributor to any of the unidentified persons networks?

DH: I  did not officially join any of the web sleuthing communities because I wanted to maintain an objective distance.When I did try my hand at it, I came to the conclusion that I would make a lousy web sleuth. It takes a lot more patience than I have.  

PD: There seems to be a large amount of infighting between the various networks. What did you see as the motivation for someone to dedicate their time to this cause? The notoriety that came with a discovery, truly the desire to do good, or a mix of both?

DH: I think many people who end up doing this kind of volunteer work start out intrigued by the challenge of a mysterious puzzle, or maybe an interest in the macabre.  But I believe for many of those who stick with it, the motivation to provide closure for a family--even the family of a stranger--is a big incentive. The work is just too time-consuming and difficult to be explained away by idle curiosity.  

PD: Were you able to gather any opinions/generalizations on law enforcement's view of these web sleuths?

DH: Law enforcement has mixed reactions. Some refer to the "Doe nuts"--as in Jane and John Doe. Others, including a Phoenix cold case detective, regularly enlist the services of the web sleuths and claim they could not have solved cases of lost identity without them. The web sleuths walk a fine line between time-sucking annoyances and essential help mates.  

PD: This blog concerns the prosecution of crimes. When unidentified remains become identified, that doesn't always mean there is a suspect or that someone can be prosecuted. Did you find the victims' families were happy enough to know what happened to their loved one or did a desire for justice replace their search for answers?

DH: Learning that a long-missing loved one is deceased kills all hope that the person might one day return, but some have said they preferred knowing where the person was, laying him or her to rest, memorializing him or her. But that relief can quickly turn into anger and, in the case of victims, a desire for justice. I have been amazed that at least a few of these cases of decades-long lost identities have led to prosecutions and convictions. One of the most recent involved a man being sentenced to life in prison three decades after his wife's then-unidentified body was recovered from the Gulf of Mexico.  http://www.wptv.com/news/state/william-hurst-gets-ife-in-prison-for-killing-wife-amy-rose-hurst-30-years-ago

PD: What is the main reason so many unidentified remains are discovered each year? Is it a problem with evidence collection at the scene, the inputting of reports so that the information spreads fare enough, or simply not enough identification on the victim?

DH: People simply turn up without IDs. They're not all victims of crimes in which a CSI-viewing murderer tries to render his victims unidentifiable; they could be accident victims or suicides. But what keeps them unidentified can often be traced back to the medico legal community: a lack of resources, such as the services of a forensic anthropologist in the case of skeletonized remains; a half-hearted or nonexistent effort to collect biometrics and input them into databases such as NCIC or NAMus; the reluctance of law enforcement to share information or to ask questions of colleagues in other jurisdictions.     

PD: Tell us about your next project.

DH: I'm fleshing out some ideas for magazine pieces and perhaps another book. I'm interested in offbeat people who are passionate about quirky ideas, so even if my next project isn't true crime, it will probably have at least that theme in common with THE SKELETON CREW. 

Thank you Deborah for joining us and we look forward to your next project. I love discovering little known stories, especially when it has such significance in our society.

Want to read the book? Check it out here.

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