Evidence Based Prosecution? - Unless Evidence is of Innocence in Assault

The Threshold for Arrest for Assault Charges is Small - But Now isn't the Time for Exculpatory Evidence - It's Easier Just to Make an Arrest and Issue an Order of Protection

If you were arrested for assault in the third degree in New York City, you may be astonished at how easy it was for you to be arrested and how very little the police seemed to care about actually investigating what happened or even talking to witnesses.  A recent assault in the third degree case of mine in New York City illustrated the upside down approach toward these types of cases.  

Initially, I will provide a little background on the way the system approaches assault cases in the domestic violence context, and then I will compare that approach to the approach of the system toward other assault cases such as this recent case of mine.  By comparison, you will begin to understand how upside down the system can be when pursing criminal cases, especially cases involving accusations of assault.

In the context of Domestic Violence cases, one of the buzz words in the world of Prosecutor Officers, including those in New York City, is "Evidence Based Prosecution".  In Domestic Violence cases, therefore, especially where a complaining witness has expressed a desire not to cooperate with the prosecution, the prosecutor offices will produce pictures of the complaining witness' injuries at the first appearance (arraignment) in Criminal Court.  These pictures, allegedly of the injuries sustained at the hands of the accused standing for the first time in court for arraignment, are point blank meant to influence the Judge in terms of either causing the Judge to set bail when bail might not have been set, or causing the Judge to set higher bail than the Judge would have been inclined to set.

In this context, the DA's Offices produce these pictures, in full color, and hand them up for the judge to see.  I have never seen a Judge decline to accept such pictures, claim that "now is not the appropriate time", or claim that "this is not the trial."  Quite the opposite.  The pictures naturally generate the expected responses of any empathetic person confronted with human injury and suffering.  And it is all perfectly acceptable, expected, and legally appropriate.

And so, having experienced prosecutors in countless domestic violence cases producing and presenting pictures to Judges at arraignments, I was excited recently to have a case where quick investigation put ME in possession of highly relevant surveillance video of a bar fight that concluded with my client getting arrested (wrongly, as the video clearly showed).

The surveillance video that I had obtained from the bar prior to my client's appearance for his arraignment on assault charges contained in a Desk Appearance Ticket was fantastic evidence of innocence.  It was classic "exculpatory" evidence as we criminal lawyers say.  The video clearly shows my client in conversation with a bouncer who is substantially bigger than my client.  You then see the bouncer grab my client by the neck and push him back a couple of feet.  At this point, a third party standing there punches my client in the head.  This triggers the bouncer to decide, for some reason, that it is open season on my client, and then HE punches my client in the head.  It is only after being punched in the head TWICE that my client then responds in kind.  The video then shows my client punching the bouncer who then disappears to the ground, knocked out.  (Like Liam Neesan's character in the movie Taken, my client happens to possess "certain skills" such that it would be unwise, as the bouncer discovered, to punch him in the face.)

The law of justification (self defense) in New York, generally permits people to defend themselves against physical assault as long as they reasonably believe that they are at risk of physical injury themselves.  It's safe to say that after being punched in the head twice by two different people, including a bouncer who was substantially larger than my client, that is clear and unequivocal evidence that physical injury could be coming your way, if it hasn't already.  Therefore, this video is evidence of innocence in just the same way that the pictures the prosecutors love to show the Judge at Domestic Violence arraignments, are evidence of guilt.

So one would imagine, then, that there would be great interest by all parties in immediate review of this evidence at arraignment, just the same.

The issue was important, because I was objecting to the Court issuing an order of protection against my client in favor of the bouncer.  If the Government needs time to evaluate the case, then fine, but why should the Court issue an order of protection against my client when the evidence clearly shows that my client was innocent of the charges?

But when I raised the issue of the video, and explained what was on it, the reaction was less than enthusiastic.  The prosecutor responded by questioning whether I would be willing to make the video available, as if I might not be willing to do exactly that.  The Judge not only tolerated this inquisition of me on the record by the prosecutor, but actually waited for me to respond, as if they had both "caught" me at something.

But I was prepared.  I had the video ready to play on my phone.  What is the difference between playing a video on my phone and handing up a pile of pictures of a domestic violence victim?  I responded in a way that neither the prosecutor or the Judge expected in their bizarre gotcha game.  I offered to play it for them there and then.  It was about three minutes long, tops.

Oh but didn't their tune change then.

The prosecutor responded that "now is not the appropriate time" and the Judge responded that "this is not a trial".  

I see.  I never heard a Judge say that "now was not the appropriate time" to review pictures of injuries to the complaining witness allegedly caused by the accused or that "now was not the trial".  The only conceptual difference between the pictures of injuries and the video of the fight at the bar is that my video suggested that my client was innocent of any crime and pictures of victim injuries in DV cases suggest that the accused people are guilty of something.

The arraignment is not the appropriate time to consider exculpatory evidence?  One would think that exculpatory evidence would be of great interest to the court and the prosecutor, at least of as much interest as INCULPATORY evidence of guilt like pictures of injuries of domestic violence victims and notice of confessions and positive identification procedures (lineups). 

What is really funny about the utter absence of time for exculpatory evidence is that of late the court goes through what is clearly simply a charade of handing out a piece of paper reminding both the prosecutor and the defense of various obligations, including a reminder about exculpatory evidence.  Therefore, there is time to hand out a piece of paper talking about the importance of exculpatory evidence, but there isn't any time to review exculpatory evidence to avoid imposing an order of protection on an innocent person.  I mean, one would imagine that a Judge would want to avoid imposing an order of protection on an innocent person, no?

Perhaps not.  The overwhelming attitude of the Criminal Court is that orders of protection are like chicken soup as a cure for the common cold, in that orders of protection "can't hurt".  I had a Judge specifically tell me that orders of protection were like chicken soup on the record in open court in Queens County many years ago.  And yet, legal decisions are meant to be decided according to the rules of law, not according to what couldn't hurt.  But that is another story.

As easily and effortlessly as prosecutors are able to present pictures suggestive of guilt at arraignment, nobody was interested in evidence of innocence at the very same proceeding.  How absurd of me to make the offer even.  "Now is not the time."  "It isn't the trial." 

Silly defense lawyer just wasting everyone's time, as usual.

In the end of course, I fully expect my client to be vindicated by the video surveillance tape, and an argument might be made that my client (and I) should be happy.  And of course when that day comes we will be happy.  Yet, I'm not so certain that the path to that point should be what it is.

Assault charges seem to involve little to no substantive investigation up front, favoring a push to make an arrest as quickly as possible.  If the police show up after a fight, whoever is injured the most is the victim and whoever is injured the least is the defendant.  Investigation is concluded.  Elementary my dear Watson.  Defendant is arrested.  The police are uninterested in witness statements, video surveillance, or in carefully assessing the situation, and God forbid, maybe even delaying arrest.

Arrest the person least injured, or arrest the first person who calls the police, and then let God sort em out.  

And give em an Order of Protection too.  It can't hurt...

By Don Murray, Esq.


New York City Criminal Lawyer Don Murray is a founding partner of the exclusively criminal defense firm Shalley and Murray.  He has handled countless assault cases in New York City over his 27 year career as a criminal defense lawyer.  He can help you too.  Call or text him at 718-268-2171 to set up your free consultation.

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More False Domestic Violence Charges Dismissed - Violation of Order of Protection

False Allegations of Domestic Violence Dismissed Again - Eventually.  

Within just a week of getting false kidnapping charges dismissed, we were able to get more false domestic violence charges dismissed in the context of allegations of violations of an Order of Protection.

In this case, my client had married a person who was not a citizen, and shortly after the marriage, it became apparent that my client's wife saw the marriage as more a path to citizenship than anything else.  Unknown to him, his new wife went to Family Court, made false allegations of abuse, and received an "ex parte" Order of Protection.  "Ex parte" means that the Family Court issued the Order of Protection and my client was not present and could not therefore be aware that there was an order of protection.  Therefore, it remained for my client to be served with a copy of the order of protection by the police, which he was, eventually.

Before my client was served, he was at his apartment, where he had been living with his wife, but his wife had left the apartment and he had not heard from her in days.  Eventually, he changed the locks on the apartment.  My client sent his wife text messages advising her that he was doing this. About an hour after he had the locks changed on his apartment, he was served with the order of protection.

The next day, my client's wife reappeared at the apartment and was unable to gain entry because the locks were changed.  She called the police and claimed that she was being excluded from "her apartment" by the actions of my client (changing the locks).  She also claimed that he had texted her.  Both of these things she claimed violated her order of protection.

The police agreed.  The police then sought out my client and arrested him for violating the order of protection.

Even When the Government Knows it is Wrong, the Default Position is to Resist Doing the Right Thing

Somewhere along the arrest processing, someone in the police department or the DA's Office put together that the timing of the order of protection service and my client's actions didn't fit properly in order for there to be a knowing violation.  If everything my client did that supposedly violated the order of protection occurred BEFORE he was served with the order of protection, he could not be guilty of violating the order of protection.  How could he knowingly violate an order that he didn't know about?

At my client's arraignment, therefore, the Government actually served "Brady" notice.  "Brady" notice refers to a famous United States Supreme Court case Brady v. Maryland, that for our purposes stands for the proposition that the Government has a duty to disclose exculpatory evidence to the defense.  (In other words, if the Government has evidence that the defendant is innocent, the Government can't hide this from the defense.  It seems like this is kind of an obvious thing, right, but you have no idea how the Government fights this and complains about the definition of "exculpatory".)  In any event, in this instance, the Government actually advised us at arraignment that there was an issue with the timing of the service of the order.

What I find interesting about this, is how knowledge that the service of the order was after the actions complained of by the complaining witness, DIDN'T DELAY THE ARREST OR PROSECUTION.  Once again, the Government, in the context of domestic violence type cases, takes the position that it will arrest everyone and let God sort em out.  The police and prosecutors seem not to consider the impact of arrest on a person, taking the longer view that regardless of the arrest, if the case works out in the end, what's the difference.

Another approach to handling the case could have been to investigate the timing of the service of the order and the actions of the defendant prior to arresting him in the first place.  But this isn't what was done.  Instead, my client was arrested, photographed, fingerprinted, and put through the arrest to arraignment system in New York City.

And given that the Government felt sufficiently motivated to bother to put the Brady notice on the record, someone somewhere must have had some real reservations about the case.  Therefore, you would expect that if the Government provided this Brady notice, that it would take the situation seriously and work quickly to resolve the issue of timing and bring the case to its proper conclusion of dismissal.

But that isn't what happened.  The case after arraignment dropped into the massive pool of cases and was ultimately assigned to a prosecutor who almost never picked up his phone, and almost never returned phone calls.  It was almost useless to try talk to the prosecutor on the case and even to present additional evidence supporting the fact the relatively simple proposition that my client was not served the order at the time he did the acts complained of as violations of the order.  My efforts to speak to the prosecutor and present our additional proof were like the sound of one hand clapping.

Although I felt certain that the evidence we had was sufficiently powerful that a dismissal of the matter was all but inevitable, my client was not so experienced with the criminal justice system, was far more anxious about his involvement in it, and was in fact concerned that the fact that he had a pending criminal charge would cause him some grief.  And in fact, his fears on this score came to fruition.  

Through a combination of delays caused by the prosecutor persistently looking for time "to investigate" what was clearly already obvious, the case lingered in the system for a couple of months.  During this time, my client applied for and was tentatively hired for a new job -- only to be told they changed their minds because they discovered his pending criminal charges.  This is completely unfair, and an entire different article could be written about the unfairness of holding pending criminal charges (meaning that no determination of guilt has occurred) against someone.  But the bottom line is that my client lost out on a job because the Government dragged its feet in a matter where the Government itself brought the problem up on the very first day in Court.

Once again, claims that a person is guilty of a crime result in immediate arrest almost without question, and even when the Government itself possesses information suggesting that the accused is actually innocent.  On the other hand, evidence of innocence post arrest, must be "looked into" months at a time and carefully vetted.

And if the slow, careful, investigation into exculpatory evidence took place prior to arrest and prosecution, that would at least not be so burdensome on the accused.  There was no reason, in this case, for example, why the Government could not have backed off the arrest until the timing of the service of the order of protection could be compared with the timing of the acts alleged to have violated the order of protection.

But although it was a long time coming, far too long under the circumstances, at least the Government did actually dismiss the case once their investigation of our evidence concluded.  So there is  that.


Don Murray is a founding partner and New York City Criminal Lawyer with Shalley and Murray, an exclusively criminal defense firm that has served New York City and surrounding areas for more than 27 years.  If you would like help with a criminal matter in New York City call or text 718-268-2171 for your free initial consultation.  Mr. Murray can help you too.

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