Crash the System

An article in the New York Times last weekend argued that every defendant should take their case to trial.  The ultimate goal is to encourage reform to a system viewed as broken.  The writer argues that officials would see the criminal justice system grind to a halt and demand reform.

The article leans heavy against prosecutors, saying that over 90% of defendants waive their constitutional rights and plead guilty before trial. It insinuates that this happens because the system forces innocent people to plead guilty.

I've discussed plea bargaining before.  I am not in the business of convicting innocent people.  I abhor the idea.  I am not in the business of prosecuting cases when the police violated constitutional rights.  A prosecutor's first responsibility is to seek justice.  That means justice for all parties, the people of the state we work for, the victims, and the accused.

My office's plea bargain policies are based on a thorough investigation of the case. If we cannot prove a case beyond a reasonable doubt at trial, it does not get indicted.  Trials happen for a number of reasons.  The defendant believes they committed the crime, but had a legal reason to do so (self-defense).  The defendant     didn't do it. The defendant has nothing to lose because there is no offer.

If each defendant exercised their right to a jury trial, the system wouldn't crash. It would just slow. Cases that take a year to get to trial will now take three. Costs would increase because more judges, prosecutors, and attorneys are required.

The only ones I can see suffering are the victims and defendants. The victims suffer because justice would be delayed. Defendants would suffer for two reasons. First, they would have rejected any plea offer with a lower sentence. After trial, the sentences are usually higher because the judge has heard all the evidence. Second, they may also remain in jail for years while they await a trial. I can't imagine waiting in jail for five years for a jury to acquit me.

I am obviously biased in this argument. I do agree that many parts of the system need reform. Trying to delay an already arduous system isn't the answer.

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A Random Tuesday in Court

I took a few days off last week to deal with some unexpected family issues.  The desk never clears for the first few days back.  Unlike scheduled vacations, unexpected time off doesn't allow for preparations.

Even though I was in town, I didn't check emails or voicemails. You better believe I'm paying for that this week.

Monday was an absolute mess.  I had no idea what my schedule was.  A dozen voicemails and a hundred emails waited.  Tuesday was looking clear, until colleagues reminded me of some cases I had scheduled and a training I had signed up to help with.

I had five cases on total for Tuesday.  Two in city court in the morning.  The training from 11:30-2:15.  Then three pleas and a pre-trial conference on at 2:00.  Most of my voicemails were defense attorneys telling me that the pleas were falling through.  My back was against the wall with time left on some of those cases, so I had to scramble to prepare grand jury presentations if the pleas did not go forward.

Sometimes, the legal gods do smile on us though.  The two defendants in the morning both voluntarily provided me DNA, saving me months of legal arguments and testing. The training went smoothly and even finished early so I made it to court on time.

One defense attorney asked me to send his 15 year old gun point robber to family court or he wouldn't plea.  Another defense attorney told me his client would make a motion to fire him.  I had grand jury scheduled for both.  Prepared for the worst, I entered the courtroom for an afternoon session.  

The defendant looking to fire his attorney?  Had a change of heart when we brought him to the judge.  He decided to plead guilty to our reduced plea offer.

The 15 year old looking for family court?  Once the judge and I explained that the defendant has already been through family court numerous unsuccessful times, the defense attorney stopped asking.  His client plead guilty.  

My third plea went without a hitch.

I walked out of the courtroom and couldn't believe the entire day had gone so well. Some days, luck shines on you.  It's usually when you thought good luck forgot you existed though.

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So, Why Law School?

I hear this question frequently.  It comes from lawyers and non-lawyers alike.  From college students contemplating law school and middle-aged men wishing they would have went.

As a writer and lawyer, words are the tools of my craft.  You would expect some witty reply that sums up my basic philosophy in life.  That is what the person who asked the question expects too.

My answer always disappoints.  The truth usually does.  The answer is I don't know.

My life has always been a guessing game.  When I describe my past, no one could have predicted my future.  And I feel that's still the case.  There is a lot more future for me out there and I don't have a clue where it will take me.  That is the exciting part of life, isn't it?

I digress.  So the real reason I went to law school?  I had finished college and dropped out of a master's program in speech therapy.  I was no longer interested in it.  I returned to my part-time job stocking shelves at a grocery store, started substitute teaching, and joined a volunteer fire company.

At the time, I was contemplating full-time employment at the grocery store.  Work my way up through the ranks and maybe I'd be a store manager by the time I was 40.

It was actually the chief of my fire company that changed the course of my life.  He told me that I needed to seek out a big city.  A person can only grow as big as their surroundings.  My destiny was not in stocking broccoli and pruning romaine lettuce.

A friend of mine was set on going to law school.  I decided to check it out.  I was a bit naive as I took the LSAT (which is exactly what it sounds like.  SAT's for law school), but I did well enough to get into a school.  A law degree would allow me to get an advanced degree, but not limit me to a particular field. A law degree would help open doors that were otherwise closed.

Law school was never the dream for me.  It became a means to an end of doing something bigger than I could imagine.  I still don't know what that will be.  I envy people I meet that are performing their dream jobs, or had specific goals from the time they were young.  For me, the river of life swept me along.  I floated and followed.  Sometimes I kicked my legs to feel like I was in motion.

It took someone to push me out of the current to actually start moving.  Thank you.

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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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Reality Check

The pattern is always the same.  You hear footsteps in the hallway.  The footsteps slow, then increase, then slow again.  A blur moves past your office door, and then the footsteps stop.  The steps return and the blur transforms into a man.

The man morphs into a supervisor and he says, "I need you to take a case."  At first you feel flattered. After all, this supervisor selected you out of everyone else to handle a case of such importance.  Then, you remember the slow and fast footsteps.  You realize that the supervisor was pacing the halls and slowing in front of every door.  When he realized that no one was there, he moved on.

I wasn't sought out.  I was merely present.  Sometimes that's enough to give you a different perspective in life.

The blue file I held in my hands presented a simple, but sad case.  Last summer, a woman went out with some friends to her neighborhood bar.  Her boyfriend showed up a few hours later.  He was uninvited and angry.

The night was warm.  The street was busy.  Even at two in the morning, a steady stream of cars kept headlights battled the darkness.  Pedestrians meandered between a few bars and the corner stores.

This neighborhood bar only existed.  It had for years.  It didn't thrive; it didn't fail.  It just was.  The doors remained open on the backs and wallets of the neighborhood.  The ripped, black leather of the bar stools looked like tendrils reaching up to help lighten the patron's finances.  The jukebox hadn't seen an update in music or technology since it was considered cutting edge in the early 90's.  PBR was still the draft of choice.  

The inside mirrored the darkness outside.  In the early morning hours of a weeknight, the only ones left were two armed security guards, teenagers who managed to get past those guards, and the regulars.  The armed guards were an extension of the neighborhood - willing to let everyone have some fun, but ready to punish if they got out of line.

Veronica (pseudonym) was with two girlfriends.  She wasn't exactly a regular, but knew enough people there so she didn't create a stir.  The stir came when her boyfriend showed up looking for her.

Witnesses pieced together the argument later for the police, and for me.  Veronica went outside with her boyfriend when he arrived.  They moved towards his car parked across the street.  The security guards remember yelling and saw a man push a woman to the ground.  The security guards sensed a problem and forced two girls to get out their SUV, which was parked in front of the bar.  

While the guards ushered the girls from the SUV inside, one of them turned and saw Veronica walking towards them.  A car pulled from across the street.  

Light is faster than sound.  It's why we see fireworks first before hearing the boom.  Flashes erupted from the moving car towards the bar.  The sounds of gunshots echoed shortly after.  Six shots.  Three into the now vacant car.  Two into the walls of the bar.  

One through the bar window, past the bar and stools, and into a cook's chest as he delivered a plate of food to a patron.  The bullet struck a narrow metal strip and broke in two pieces before it hit the cook.  

It saved his life as both pieces missed his heart.   

All the witnesses were cooperative, save one.  Veronica.

Veronica was the intended target of her boyfriend's bullets.  Phone calls went unanswered.  Letters came back.  Then, we sent out subpoenas.  It took weeks to find her, but we finally did.

She appeared at my office in the morning.  I took her to a conference room for a private conversation.  She told her story, which is to say she told me nothing.  I pressed and prodded.  I invoked her life, and the life of the man that was shot.  I held my thumb and index finger millimeters apart and told her that was how close the man had come from dying.  I told her it was time to get away from her boyfriend who tried to kill her and that we could help her.  Otherwise, she could get hurt.  Or killed.

Veronica looked me in the eyes.  "Sir, people get killed every day on my streets.  That man didn't get killed.  Good for him.  If you and I talk, I mean real talk, then my kids ain't gonna have a mommy no more and you be working my case."

The next time I saw Veronica was when she hugged her boyfriend as the court officers took him to jail following his sentencing for shooting the cook.             

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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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