ACTING IN CONCERT - AND I DON’T MEAN CONDUCTING THE PHILHARMONIC
By Don Murray, Partner, Shalley and Murray
Imagine the following set of circumstances:
Our hero is named Jack. Jack is 16 years old. Jack is walking home from school. Today, Jack is walking home from school with two friends, Bill and Dan. The three teenagers, Jack, Bill, and Dan begin their walk home together. As the three of them walk by a bus stop, they all notice another kid named Victor sitting by himself talking on his iPhone.
Bill and Dan stop walking, and so does Jack. The three of them are standing within a few feet of Victor, but Victor is busy paying attention to his phone and doesn’t pay much attention to what is happening. Victor notices that three kids are nearby. Jack leans over to Dan and whispers something to him. Bill turns to Jack and says with a smile on his face, “Watch this.” Bill and Dan proceed to stand over Victor uncomfortably close. Bill demands the iPhone. Victor tries to put the phone away but Bill pushes him over and Dan grabs the iPhone from Victor’s hand. Jack watches this in amazement and horror, but when Victor starts screaming because he hit his head on the ground it scares Jack and he runs off with Bill and Dan. Jack catches up to Bill and Dan who think this was the funniest thing on the face of the earth. Jack complains but Bill and Dan tease him and he quiets down. They continue to walk home. The next thing they know, however, the police roll up on them and stop them.
If you ask a teenager to assess this situation, he or she will inevitably focus on Jack’s innocence. Indeed Jack is in fact innocent of any crime. Teenagers will predict that Bill and Dan will be arrested but they will not think that Jack has much to worry about. What, after all, could Jack have to worry about when he committed no crime? Surely the police will get to the bottom of things. Surely Bill and Dan or even Victor will explain to the police that Jack had nothing to do with the cell phone robbery. And of course Jack himself will explain to the police that he had no idea what Bill and Dan were going to do. And it will all be sorted out right there on the street and Jack will have an interesting story to tell his mother at dinner later.
The problem is that the reality is that in this situation, Jack is almost certainly going to be arrested for robbery in the second degree, a C violent felony for which he will face a mandatory minimum of 3 ½ years in state prison. He might be Youthful Offender eligible, which would mean that there would be no mandatory minimum but he still would face up to 1 ⅓ to 4 years in prison.
Jack would likely be arrested because in the real world, as opposed to the world of hypothetical situations where I can tell you that Jack is innocent and had no idea what Bill and Dan were going to do, people do not walk around with labels over their heads indicating their intentions. The police were not witnesses to this event, and rarely ever are witnesses. The most important witness for the police will be Victor, and it could well be that the entire investigation of the case will begin and end with a brief interview of Victor at the scene when the police arrive.
Think about how that works. The police happen by and see Victor screaming for help. The police ask him what happened. At this point how do you think Victor is going to respond?
Is he going to say, “Well officer, I can’t speak to the actual inner thoughts of any of the people I happen to think were involved, but let me calmly describe the actions of each of the people in my general vicinity and then I’ll let your expertise decide whether you want to investigate them further.”
Much more likely Victor will say, “These three kids robbed me.”
But wait you may be thinking, why would Victor say that three kids robbed him? Well, Victor will have noticed that the the three kids were walking together as a group and he will probably have noticed that they all ran away together too. Victor is not likely to feel terribly charitable toward anyone after being robbed, so Victor is likely simply to just lump everyone in the group together and use the word “they”.
So the police throw Victor into their car to ride around looking for the people who robbed him. Victor notices the same group and says, “there they are.” This of course confirms for the police the reliability of Victor as a witness because he said there were three of “them” and lo and behold there are three people together.
The police may vaguely question Victor about the roles of each of the suspects, but the police will not generally be terribly interested in much more information than that everyone was “together”.
The police will arrest all three.
The police will arrest all three because of the legal concept of “acting in concert”. Acting in concert essentially means that if a group of people decide to commit a crime together, then the size of any individual role in the effort is irrelevant, as long as there is a role. This is why the getaway driver can be found guilty of a bank robbery even though he never set foot in the bank.
In the context of a cell phone robbery like our example, there are a couple of different possible roles that Jack could have been playing, both of which are consistent with the facts as we know them. First, Jack could have been a lookout. What does a lookout look like? He stands around looking. A lookout, like a getaway driver, might not have any active role in the offense itself. Second, Jack could have been using his physical presence as a form of intimidation to make Victor feel like he should not resist Bill and Dan’s efforts to get his phone. How does one use his physical presence to intimidate? He stands there.
So as long as Victor tells the police that Jack was there, and he was “with” Bill and Dan, the police are going to arrest Jack. Their attitude will likely be that they will make the arrest and then let the Court sort it out.
Keep in mind that when Jack opens his mouth to talk to the police, which he inevitably will because he “knows” he didn’t do anything wrong and wants to tell this to the world, he will do nothing but dig himself deeper in. He will, out of his own mouth, confirm the single most important fact to the police -- that he was in fact there and with the other two. Detectives who interrogate kids in these situations love getting kids like Jack to use the word “with”. To Jack, it is nothing to say, “I was with Bill and Dan” because Jack doesn’t understand the crushing significance of that to the police and how bad it sounds when viewed through the lens of “acting in concert”. The phrase “I was with Bill and Dan” takes on a whole new meaning to the police, although Jack may be thinking in more common everyday terms. Rather than convince the police to release him and not to arrest him, the police will write down that “defendant admitted to being with the others”.
Now the Court might well sort it out...in the end. After Jack’s family goes to the expense of hiring a criminal defense lawyer, after Jack endures months and months of court adjournments as the case is readied for trial, and after Jack endures the heartache and worry of going to a trial where he faces up to 15 years if convicted, Jack could very well win. Won't that be GREAT? This end of it is what teenagers can't see.
Realize that the prosecutors are not going to wake up one day and suddenly believe that Jack had no idea and wasn’t a lookout or a participant in some way. Even if the prosecutor suspects this could be true, the prosecutor is likely simply to fall back on the position that the factual issue of whether Jack was a participant or not is a decision for the jury to make. Any uneasiness about the factual situation that the prosecutor feels is likely to be translated into a better offer, but not a dismissal. In other words, a robbery that the prosecutor might be inclined to look for jail time on, might suddenly become an offer of Youthful Offender Treatment and Probation. Cynical defense lawyers occasionally refer to this offer as the "innocent kid's offer".
If Jack wants the world to declare him innocent then, he will need to be successful at a trial. The prosecutor isn't just likely just to give up.
And this is part of what teenagers don’t consider when they focus on their own innocence. Yes, the system may well work, and in the end they may well be vindicated, but at what cost? And furthermore, what if the system doesn’t work? What if a jury thinks he was the lookout? What then?
The answer: state prison and a felony criminal record, in all likelihood.
Wouldn’t it be better not to be in that position in the first place? Wouldn’t it be better NOT to hang around people who are likely to engage in bad behavior? Wouldn’t it be better to leave a situation where others are engaged in bad behavior? If Jack simply left the scene as the robbery occurred and called the police himself, he would not likely have been arrested.
I have represented a tragic number of teenagers who have found themselves in extremely similar circumstances to the fact pattern here. Once they understand the law and the power of acting in concert they realize what a dangerous principle it is and how quickly acting in concert can bring you to the brink of a serious criminal conviction.
The key is not to have a great criminal defense lawyer on tap so that you can beat the charges.
The key is to avoid being charged in the first place. Where teenagers are concerned, that means paying more attention to the world around you. That means being aware that when others are doing bad things around you, that although YOU may know you are not doing anything wrong, observers may not be so sure. Observers of the bad behavior may assume that you are in some way participating and report this to the police. Teenagers need to be more aware that they need to separate themselves from those who are doing wrong around them, and the faster they separate themselves from those who are doing wrong around them, the better.
If more teenagers understood more about the power of “Acting in Concert” and acted upon this knowledge, I think a great many teenagers would not be arrested and forced to engage in the criminal justice system. Our schools do absolutely nothing to teach teenagers this in a system where ignorance of the law is "no excuse."
So who teaches this to them then?