Felony Assault Charges Dismissed - Winning the Battle By Avoiding the Battle

(The exact location and significant identifying details of this case are intentionally left out to protect client confidentiality.)

By Don A. Murray, Partner at Shalley and Murray

A NYC District Attorney's Office dismissed a felony assault of a police officer case of mine today.  This outcome, as happy as it was for my client, is actually not the reason that this case is remarkable to me.  Once you read the details, you will likely agree that the outcome is simply the right thing.  What is more interesting about this outcome is the way that we got there.

My client is an 18 year old female.  If you were to read the criminal court complaint, you would likely be horrified by the accusations, and for good reason.  They are terrible accusations.  According to the complaint, my client, and her boyfriend, attacked a police officer and his partner causing various physical injuries.  My client and her boyfriend were charged with D violent felonies of Assault in the Second Degree, and they both faced up to 7 years in state prison.  Clearly these are ugly accusations.

My future client's mother contacted me to ask me to take on the case after it was being handled for a time by an enthusiastic young woman who worked for one of the indigent defender organizations.  Initially, I was concerned that the case was going to be especially difficult because the complaint made it seem like the police officers were actually injured in a substantial way.  As you can imagine, all the District Attorney's Offices of NYC understandably take a dim view of assault on police officer cases, and the prospect of a "real" case created images of terrible offers of years in prison and long drawn out courtroom struggles.  

But I listened.  I listened to my client and her mother (who witnessed the entire scene).  According to them, the police officers responded to a call generated by my client's mother regarding a bit of a scene she was having with her daughter over whether my client's boyfriend was going to be allowed to stay for dinner.  By the time the police officers arrived, they had all settled their differences, and had moved on, peacefully coexisting in the apartment.

On arrival, however, the police were obligated to investigate and sort out the situation.  Non-police often have the impression that the police are their puppets to call into their lives and send them out of their lives as they see fit.  That is not the way it is.  Police don't generally like to be thought of as puppets dancing to the tunes of the people who call for them.  When you call the police into your life, the police decide when and under what circumstances they will exit your life.  This is a point of friction between police and non-police on a regular basis, and this can, and does create a sort of escalating problem that can lead to, well...cases like this.

Extreme escalation is what my client and her mother reported happening.  

Suffice it to say that my client had some choice teenage words for the police officers as they made their efforts to sort out the situation (that was in truth already sorted out).  My client adopted the classic teenage position that parents are not always right because they are parents.  Now the police could have let this go and declined to engage the 18 year kid.  But they didn't.  And so a war of words began between the police and a teenage girl.  If things hadn't gotten so out of control, it would have just been absurd.  

And then some sort of line was crossed in the mind of one of the officers (actually not the one who was bickering with my client).  He decided to start the process of arresting my client for something.  I'm not exactly sure what she would have been arrested for, but perhaps something like "disorderly conduct" or the old favorite in situations like this "obstructing governmental administration".  And this decision to begin the arrest process wasn't calm.  It began with my client being grabbed and body slammed to the floor while the officer started to put handcuffs on my client, all the while her mother watched in horror.

Now the boyfriend steps in to do the exact wrong thing.  It wasn't the morally wrong thing, I suppose, but wrong thing from the perspective of hoping to avoid the wrath of the police, or wrong thing from the perspective of trying to diffuse an escalating problem.  What did he do?  Boyfriend stepped in to complain about how roughly the officer is treating his girlfriend.  

Here is some free advice:  When the police are arresting someone, it isn't a good idea for your personal well being to offer your opinion about what the police are doing.  It also isn't a good time to ask questions of the officer doing the arresting.  If you think something wrong is happening or if you think a crime is being committed, call 911.  

You are likely to be met with hostility if you inject yourself into the middle of an arrest situation.  Hostility can take many forms, depending on the officers in question.  If you are lucky, and you encounter a well trained and good natured police officer, that hostility may simply be being advised verbally (if perhaps in a strong voice leaving no doubt about your obligations) that your input and your questions are not a priority at the moment and that you need to allow them to do their job.  If you are not so lucky, you can find yourself becoming the focus of scrutiny yourself and threatened with arrest yourself.  And if you really draw the short straw this day, and encounter a police officer who may not be the sort of person who is ideally suited for the job of police officer, you could end up like my client's boyfriend in this case.

When my client's boyfriend offered his opinion about the way that the officer was treating my client, the officer left my client, stood up and punched the boyfriend in the face.  He  then proceeded to take out his baton and beat the boyfriend about the head and face with the baton.  By the time other officers arrived and dragged this officer, who had sort of lost control, away from the boyfriend, the boyfriend was on the ground beaten pretty badly.  In fact, he almost lost an eye, among other injuries.  I saw pictures taken after he got out of the hospital when he looked "good" and it was pretty horrific.

But of course the situation was not described in this way in the Criminal Court Complaint.  It was pitched simply as a vicious attack by my 18 year old client and her boyfriend on the police.  Now, sure you might say, this notion that the police would fly off the handle like this and viciously beat someone for really nothing is just something that people like to say when they are physically harmed by the police, even if the police were completely justified in their behavior.  And you would be right.  People say this all the time as a means to deflect attention from their own behavior that created the situation in the first place.  

But this case seemed different from a situation where people were crying wolf about a beating in order to deflect attention from their own bad behavior or instigation.  The level of beating that the boyfriend got was out of proportion to anything even remotely alleged to the police officers, although they did claim some injury.  Also, the mother was present, whose account of the events supported this notion.  Also, discussing the case with my client and her mother suggested to me that my client was actually quite a calm person who didn't seem like she would be flying off the handle.  And finally, this didn't happen in the context of some wild street encounter or an actual arrest for something in the streets.  The police had responded to an apartment where by all accounts I got, things were utterly calm and settled by the time they had arrived.   Under these circumstances, it is hard to imagine a huge number of reasons how things got to the point where my client's boyfriend's eye is being beaten out of his head, especially when the injuries to the police, while allegedly something, were not over the top.

When I got involved, the Government was considering how to proceed.  My predecessor lawyer, from an indigent defender organization, had taken an extremely aggressive approach, as is tempting in a case where you think you have something to work with.  In speaking with her after I came into the case, l learned that she had taken my client to the Civilian Complaint Review Board, and that she took the position with the Government that it was up to the Government to either put the case into the Grand Jury or not, and that they were not going to provide any input to the Government's investigation of the matter.

My predecessor was young and enthusiastic and full of the good fight.  She was so enamored with her case and her down and dirty in the trenches experience (of maybe a couple of years) that she even passed comment on what she saw as the absurdity of my client's mother hiring me on the case.  She point blank suggested that I should thank her for "doing all the work" while I would be getting paid what she imagined I am sure was some enormous fee that I didn't really deserve.  Ah, don't we all wish for the clarity with which we saw the world when we were very young.  

Despite my predecessor's exuberant belief that she had done "all the work" I did manage to find a few things to occupy myself with as regarded the case.  You see, her aggressive approach was taking the case down a particular path.  She just assumed that the Government would naturally see that the police over reacted and then brought felony charges against two innocent people.  She just assumed that if she dared the Government to proceed that the Government would yield before her show of strength.

I was not so sure of this, especially when I actually spoke to the prosecutor.  Understand that the prosecutor had really only heard from the police.  She didn't have a lot to work with from the defense point of view.  The police certainly weren't going to provide that to her.  And this prosecutor in particular struck me as not being the sort to easily surrender to the notion that the police officers brought false felony charges against people to cover up their own brutal beating.

No.  More would be required.

We needed to bring our case to the Government if we wanted the case to end quickly and without a fight, and I don't mean me simply calling up the prosecutor and telling her my theory.  I mean putting our cards on the table, including bringing my client in to speak to the prosecutor.  Despite what you see on Law and Order, bringing your client in to speak with the Government in a criminal case is actually pretty rare.  It is generally reserved for cases, like this, where you either feel like you are in a strong position and your client is capable of articulating the defense or where you are in a ridiculously weak position but you have some great mitigating factors to discuss.  My feeling in this case was that unless we could provide this prosecutor a preview of my client and let her hear the story from my client herself, the prosecutor wouldn't really have much of a choice to do anything other than present the case to the Grand Jury.  I never have a great deal of faith that the Government will ever be timid about pursuing cases that I believe are weak.

Now sure, my client could testify in the Grand Jury, and my client might even be successful there and get the case dismissed there.  But how much better, and less stressful, and less risky is it if the prosecutor could be convinced simply to dismiss the case?  How much nicer for the client?  The Grand Jury is a tricky thing too.  You never know.  If my client gets indicted, which could easily happen, then we are virtually guaranteed to have to take the case to a trial.  And again, maybe this is a great case to take to trial.  I think my young predecessor saw this as a marvelous case to take to trial - a real juicy trial offering a more than decent likelihood of success perhaps.  

And that's wonderful - for the lawyer.  As a criminal defense lawyer, you don't get a lot of great trials where you have a great chance of success.  Criminal defense lawyers fight a lot of "Alamo" like battles.  So a case like this is extremely appealing to push toward trial, especially for a young exuberant criminal defense lawyer.

But is that so great for the client?  The prospect of going to trial fills most clients with dread - as well it should.  Trials are dangerous places for clients.  Success even in great cases is never guaranteed.  There is no such thing as a "gimmie" trial.  Most of my clients who have gone to trial and won have told me after it was all over that even though we won the experience of the trial was one of the worst things in their lives.  The joy of victory is almost never as joyful as a client imagines it will be after enduring the grueling pressure of a criminal trial.

A great many lawyers seem to take such great pleasure in beating their chests and shouting about being aggressive trial lawyers.  They act like six gun shootin rootin tootin gunslingers and many people seem to appreciate this.  But beware.  It is one thing being a six gun shootin rootin tootin gunslinger when your own hide is on the line.  But for a trial lawyer it never is.  

One thing is certain in any case you take to trial.  That is that no matter what the verdict, you get to pack up your things, drive home, and have dinner.  The same thing is not guaranteed for the client.

I get it.  I remember being full of fire all the time, like Billy Joel's "Angry Young Man" who is "always at home with his back to the wall".  This is part of the fun of being a criminal defense lawyer, then and now.  But experience teaches you to temper this anger with a more measured approach.  The "aggressive trial lawyer" thing plays well to the crowd sometimes, and seems to be a popular way to advertise lawyer services, but it can have a way of getting in the way of the client's best interests.

In this case, after seeing how my  client came across and how articulate she was, I thought speaking with the prosecutor could go a long way toward convincing the prosecutor to choose to dismiss the case.  This would save my client the stress of having to prepare for and go into the Grand Jury and avoid the risk that the Grand Jury would indict her anyway and send the case down a long and costly path to trial.  Speaking with the prosecutor also has the added benefit of giving my client the experience of telling her story in a situation where she will be essentially cross examined by the same person who would be cross examining her in the Grand Jury, if we had to go there.  I would get a chance to see what my client was up against.  Also, by paying attention to the questioning, I can gain an insight into what issues the prosecutor thinks are important about the case and therefore be better prepared for the Grand Jury if we have to go there.  In a way, I thought of this meeting as the prosecutor giving my client a training session for the Grand Jury presentation.

I thought it went quite well.

And despite my predecessor lawyer's assessment that she did all the work, I was not done yet.  It occurred to me that the scale of brutality my client alleged was pretty remarkable.  If it were true, I thought, then maybe the officer had done this before.  It would seem unlikely that this would have been his debut at this sort of thing.

So I did some digging.

It turned out this officer had been busy.  He single handedly had racked up close to half a million dollars in settlements paid by the taxpayers of New York City in at least four different police brutality lawsuits, including one charming case where he was alleged to have beaten up and falsely accused an obviously pregnant woman who was complaining about his treatment of someone he was arresting.  There was even a pattern - vicious beatings and false accusations of people who offer opinions or complain about his violent treatment of people he is arresting.

Additionally, and in a way even more creepy, I ran across an article about this officer's bizarre interaction with a photographer who was photographing a public location, where the supervisor of the location indicated for the article that photography was absolutely permitted.  The photographer reported that the officer became enraged and unreasonable, threatening her with arrest and threatening the arrest of friends of hers who were with her.  The impression from the article was that this officer was highly unstable.  The close to half a million dollars in lawsuits paid out because of him suggests that this was an accurate assessment.

My predecessor, for all her vim and vigor and thirst for blood, didn't know about any of this.  She never checked.  So captivated was she by the possibility of what appeared to be a good case for her in court, that she didn't bother looking for the thing that could put an end to the case without a fight at all.

I told the prosecutor.  I didn't save it for a trial that my client wouldn't have wanted to sit through even if she won.  I played the card.  It turns out the prosecutor didn't know about this either.  That seems sort of unfortunate as well, but she was clearly and understandably interested.  She looked into it.  

And it worked.

I got word from the prosecutor shortly thereafter that she was dismissing the case.

Client didn't have to go into the Grand Jury.  Client didn't have to go to a long and costly trial.  Case dismissed.  I didn't have to rattle any sabers or beat my chest or dare the prosecutor to take the case to trial to show off what a gunslinger I am.

The greatest victory can sometimes come by avoiding the battle.