Criminal Justice Myths Part Two - Getting Critical Evidence "Thrown Out"

Another persistent myth in our criminal justice system is the myth that law enforcement is somehow hamstrung and helpless from being forced to contend with multitudes of technical, impractical regulations and procedures designed to advance the cause of criminals' rights.

According to this myth, well-meaning, but overwhelmed law enforcement personnel unwittingly cause 'smoking gun" evidence to be excluded by judges who are made helpless by these complex and counterintuitive rules.  Further, a key feature of this myth is the slick, high priced criminal defense lawyer who is able to manipulate these arcane rules to the great advantage of his lucky clients.  The result is a never ending stream of critical evidence in serious cases being "thrown out" followed by dismissals because the Government's cases fell apart.  All of this happens as hapless Judges, police, and prosecutors look on in horror.

The reality is about as exactly the opposite as you can get.  Critical evidence in serious cases is excluded from cases just about as often as unicorns roam Central Park.  Most criminal defense lawyers can count on one or two hands the number of times over an entire career that critical evidence has been excluded from serious cases.

In order to understand some of the reasons why this is, however, you need to understand a bit about how this process works.  It will all come together in the end, so stick with it.

Typically, when people worry about the exclusion of evidence from a case, they mean what lawyers call "physical evidence", like "the murder weapon" or "the kilo of cocaine from the trunk of the car".  There are other kinds of evidence that can be excluded, but for the purpose of this discussion, let's talk about just this sort of "physical evidence".  It is the exclusion of physical evidence that most typically makes people upset when it is reported in the news, or most often serves some plot point in a movie to illustrate the horror of the criminal justice system letting another guilty guy go free.

So what happens when there is physical evidence in a criminal case?  How does the issue get dealt with?  Many clients who are upset about how the police dealt with them will immediately want me to "tell the judge" about the problem with the police conduct that led to the recovery of the physical evidence.

But the law takes a longer approach to it than that.  This issue of the physical evidence, and how it was recovered is dealt with, but in a highly structured way at a very particular time in the case.  I can't just "tell things to the judge" at the arraignment about a claim of illegal police behavior resulting in the illegal recovery of physical evidence.  (Well I can, but it has no real impact and cannot result in the judge making a ruling there and then.)

In fact, this issue of the recovery by the Government of physical evidence is not addressed until just before trial.  It is not addressed until just before trial because the law considers this issue an issue of evidence at trial.  Before trial begins, one of things that a lawyer must do is to sort of out issues of evidence before the trial begins so that the trial is not delayed by arguments back and forth over what is allowed to be admitted as evidence and what isn't.  

The Exclusionary Rule

Under our law, if the Government obtained physical evidence illegally, meaning against the basic of principles of freedom established by our Constitution, then the law says that the Government should not be allowed to use that evidence at trial.  This principle is called the "exclusionary rule" because it holds that evidence can be "excluded" from the trial.  If evidence is excluded because of this rule, that means that the Government is not allowed to use that evidence in the case.

Therefore, if the case is a possession of a weapon charge, and the Judge finds that the police violated the Constitution in getting it, then the Government would not be allowed to introduce the weapon at trial.  Obviously that would make it kind of difficult (or impossible) to convict someone of possession of a weapon if the weapon can't be introduced as evidence or even discussed. 

This exclusionary rule is the subject of considerable controversy because it ends up excluding perfectly reliable evidence.  Nobody is saying that weapon wasn't there or that it wasn't possessed by the defendant.  In fact, the defendant must affirm that he possessed it in order to trigger the analysis that would lead to the use of the exclusionary rule.

Other possible remedies for the police misconduct could be used aside from excluding the evidence.  For example, the evidence could be admissible but the police officer could be disciplined or even prosecuted.  Our Courts, however, have for the time being concluded that the biggest and most effective deterrent to the police engaging in unconstitutional tactics to obtain evidence is the threat that the very case they are trying to build will be destroyed.  Also, the wrongdoing here is considered to be particularly dangerous since it targets some of our most fundamental rights as citizens of the United States, including our right to have privacy from the Government.

The Hearing and Finding of Facts

So, when there is physical evidence that the Government recovered as part of its investigation of the case, there will typically be a hearing where a Judge will hear from the Government about the circumstances of how the physical evidence came into the possession of the Government.  At this hearing, the defense will also be given the chance to call witnesses and present evidence.  Once both the defense and prosecution have concluded, the Judge must then decide two things. 

First the Judge must decide what happened (the facts).  This means that the Judge sets down exactly what he or she believes happened, blow by blow.  Second, the Judge then must answer the question, "Assuming the facts that I just listed, did the Government show that the police recovered the evidence according to the law?"  This means that the Judge applies existing law to the facts and makes a ruling.

It is important to remember that there may well be a difference between "reality" and "what the Judge decides about the facts".  This is not necessarily a flaw in the process.  This is simply a function of the fact that we are human and that the frailty of our human condition will always plague us.

Without some sort of perfect recording of a series of events, we are left to rely on witnesses to report what happened.  Witnesses are human.  They can be wrong because they are honestly just wrong, or they can be wrong because they have some motive to lie or exaggerate.  Witnesses can present a combination of honestly wrong, lying wrong, and exactly right testimony.

At one of these hearings, a police officer could be wrong because she is lying to cover up bad behavior that might lead to exclusion of evidence.  At the same hearing, a defendant could be wrong because she is lying to make it seem that the police acted badly.  Or both the police officer and the defendant could be honestly testifying to the facts they precisely remember, but they both could be just honestly wrong.

This problem of the potential of witnesses to be wrong for a variety of reasons is not unique to our criminal justice system.  It is a problem that confronts every human effort to get information from other humans.

And finally, after hearing these witnesses, it is the Judge who somehow must decide which witnesses to believe, or what part of each witness' testimony to believe and then come up with a story that sums up, to the best of the Judge's ability, the truth about what happened.  Do Judges have some sort of magic power that the rest of us don't have?  In NYC Judges are elected.  The last time you voted for a Judge, did you have any idea how well the candidate was able to to divine the truth about situations from listening to different witnesses?  Of course not.  Truth is that Judges use their life experience and general judgment like the rest of us.

So, sometimes, Judges will be exactly right in determining what "actually happened" and sometimes their determination of the "facts" of the case will be something else, perhaps related to reality, but containing error.  Again, this is not really to be avoided in any system.  Someone has to decide what happened and someone has to rule on it according to the law.

So I See How this Works Now, but Why Does This Mean that Evidence Doesn't Often Get Excluded?

Probably the first answer to this question is going to be that as a general rule, applying the law to the facts found by the Judge will mean that the law does not require exclusion.   The truth is that the law is not designed to make evidence easily excludable or excludable for frivolous reasons.  The law as it has developed over the years has developed any number of principles that give an enormous level of leeway to police officers to keep them safe, and to preserve evidence that might otherwise quickly disappear.  The notion that there are tricky little rules that trip up police into making mistakes that causes evidence to be excluded is just a fantasy.

The second answer to this question has to do with the timing of the hearing.  The issue about the admissibility of evidence is not decided up front.  Therefore, in many cases, the District Attorney's Office will take the position that if you press them to the point of having to conduct a hearing, they will not offer any settlement of the case.  This means that if a person charged, say with criminal possession of a weapon wants to see about winning exclusion of the gun from the case, he will have a difficult choice to make, even if his lawyer is telling him that he has a really good argument that the police acted incorrectly in recovering the gun from him somehow. Here's how this works:

Let's say a defendant is offered 3 years in prison now.  If he rejects it because he wants to have his hearing, he can have his hearing.  But if he loses, what if he faces a minimum of 8 years at trial, and up to 15?  And remember, if he loses, the gun comes into evidence and it could be that he doesn't really have any kind of credible defense to the possession.  (Say the gun was found in his pocket with his name on it, along with twenty pictures of him holding it.)  Losing the hearing, then, means having no real chance at trial, so losing the hearing means a minimum of 8 years in prison, and possibly up to 15.  So even if you think you have a great legal argument about how the police found the gun, do you roll those dice?  What if the Judge finds that what happened wasn't what actually happened?   How many years of your life are you willing to bet on the truth coming out in the end?  And let's just pretend that your legal issue was actually good and that you have an excellent chance of winning the appeal on the exclusion issue.  You will spend likely about 2 years in prison waiting for that appeal to be heard.  The offer is 3 years.  You can do one more year than the 2 and walk out of the door, or you can wait 2 years on your 8 year sentence for the hope that your appeal will be granted.  

So in this way, people who have perfectly legitimate claims to make perfectly legitimate arguments about exclusion of evidence will often choose not to make them because of the risks involved in pressing the claim.  This actually keeps many legitimate claims from ever being litigated in the first place.

Third, the impression that Judges sit by helplessly against tedious rules that tie their hands is downright ludicrous.  Because Judges decide the facts, they have enormous control, and because Judges also apply the law to those facts, they have even more enormous control, and because the law bends over backwards to make exclusion of evidence a rarity, this makes Judges far more instruments of INCLUSION than exclusion.

Significant evidence in serious cases just doesn't get excluded that often.  It is a non-existent problem in the criminal justice system.



Classic Criminal Justice Myths - Part One - Miranda

The criminal justice system is plagued by a host of myths, many that I am forced to address on a nearly daily basis as I help clients try to understand their circumstances and evaluate their cases.  In a new series of blog posts, beginning with this one, I will address some of these classic criminal justice myths.

"The Police Must Read You Your Rights or Else Your Case Will Be Dismissed"

This is the most common mythical belief expressed about the criminal justice system.  If people know nothing else, they know that the police must read you your Miranda Rights or else the case will have to be dismissed. 

Here's the truth:

Not one case in the history of the United States has ever once been dismissed because of a failure of a police officer to read Miranda warnings to a suspect.

Ernesto Miranda was convicted of a terrible crime in Arizona and sent to prison.  As part of the case against him, the state authorities used a statement that Mr. Miranda had made to the police.  Before questioning him, the police did not advise Mr. Miranda that he had the right not to answer their questions.  On appeal, his lawyer made this an issue.  Eventually, this issue made its way to the United States Supreme Court.  Ultimately, as everyone knows, the United States Supreme Court rendered its famous decision in which it created the "Miranda rights" requirement.

But what was this requirement?  The requirement was NOT that all people arrested must have the Miranda rights read to them.  That has never been the rule.  Instead, the rule was, and is, that Miranda rights must be read to a suspect only when two things are true: 1) the suspect is in custody, and 2) the suspect is actually being interrogated.  If either of those two things isn't true, no Miranda warnings are required.  Therefore, simply being arrested only means number 1 is true, but not number 2.  Therefore, being arrested does not require that Miranda warnings be read to anyone.

But wait, there's more.

So what happens if Miranda warnings are required, and the police fail to read them to the suspect?  The case is dismissed, right?


The remedy for a violation of the Miranda rule is that the statement that was obtained improperly (without Miranda rights) is not allowed to be used by the Government in its case against the defendant.  

That's right.  The case isn't dismissed.  All the rest of the Government's evidence can be used; all the witnesses, all the expert testimony, all the physical evidence, all the identification evidence, everything else is perfectly fine.  Just that one piece of evidence is cut out of the Government's case.  Nothing is dismissed.

But wait, there's more.

Remember I said that the statement obtained in violation of Miranda couldn't be used "in the Government's case"?  I never said the illegally obtained statement couldn't be used at all.  So if the defendant chooses to testify (in the defense case after the Government rests) the Government is absolutely free to use the illegally obtained statement to cross examine the defendant, if the defendant says anything different on the witness stand than what he said in the illegally obtained statement.  Even though the Government violated the law (the Constitution) in order to get the statement, that statement can still be used to get the defendant if he dares to testify at his own trial.  

Just as a little practical aside, you might be interested to know that there is a school of thought in law enforcement circles that believes that for this reason, the Miranda rule might as well be ignored because obtaining a statement from the defendant, even if it is excluded from the Government's case, will often keep the defendant off the witness stand.  

So what happened to Ernesto Miranda?

Most people assume that Mr. Miranda's case was dismissed by the Supreme Court and this terrible criminal walked away from his case.  But of course that isn't what happened.

The United States Supreme Court did reverse the conviction.  But then the Court referred the case back to Arizona for Mr. Miranda to be tried again, only this time without the illegally obtained statement.

Arizona did take Mr. Miranda to trial again.  He was convicted again, and he was sent back to prison.

The Reality of Miranda - The Laughingstock of the criminal justice System

Therefore, while the myth of Miranda fuels television and movie legal dramas, it is but a myth.  Miranda is actually one of the best things that ever happened to law enforcement because it created an exceedingly simple bright line test to establish the voluntariness of statements obtained by the police.  Unless there is a claim of physical torture, essentially all the Government must do to establish the admissibility of a statement obtained through interrogation of a suspect in custody is to put a police officer on the witness stand and ask "Did you read him his rights?" to which the officer responds, "Yes." 

Not a particularly subtle or burdensome requirement.  And it is difficult to contradict, since the circumstances are such that the only person who might offer a contrary view of the facts would be the defendant who could testify that the officer did not read him his rights.  So a Judge at a hearing on the Miranda issue hears from a police officer who says, "I read him his rights."  And then the Judge hears from the criminal defendant who says, "He didn't read me my rights."  How do you imagine that is likely to be decided by the Judge, who is required to make a fact finding?

In truth Miranda, over the years has become practically a joke in the tortured ways that even things like "custody" and "interrogation" have been interpreted. 

I had a case once where my client was held in a police precinct for nearly 24 hours, not allowed to leave or make phone calls, or even go to the bathroom without permission, and the Court determined that he was not in custody.  Therefore, no Miranda warnings were required prior to the interrogation that was taking place.  And as wrong as that sounds, the case law was against me on the point.

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.


On October 8, 2013, at about 10:00 PM, near Wetherole Street in Queens County, two people were robbed at gunpoint.  The robbers were not caught.  On October 16, 2013, my client was arrested for this robbery after being identified by the victim as one of the perpetrators.  At his arraignment on charges of Robbery in the First Degree, the judge set bail so high that there was no realistic way he would be able to make bail.  My client was going to be in jail until the matter was resolved.  The judge's decision to set high bail was not unreasonable.  Robbery in the First Degree is a B violent felony in New York.  My client faced 25 years upon conviction.  My client even had a previous criminal history that would have made his minimum 10 years upon conviction.

My client maintained his innocence.  Not "they can't prove it" but actual innocence.

Imagine how such a claim would be received.  Prior felon, after being identified by a victim, says "he didn't do it".  Almost laughable right?  Can you imagine telling such a person to "tell it to the judge"?  Can you imagine asking me as his lawyer, "How can you represent this guy"?  Can you imagine me, as his lawyer, trying to explain that "he didn't do it" to a jury?  Realize that if he takes the witness stand to tell the jury (for what it is worth) that "he didn't do it" the prosecutor will more than likely be permitted to cross examine him about his prior (unpleasant) criminal history.

Imagine yourself as a juror listening to the testimony of a convicted felon telling you that while he might have "done it" in the past, "this time he didn't do it".  How receptive do you think you would be as a juror to this, if the only thing my client had going for him was his word that he "didn't do it" -- EVEN IF HE HAD NO PREVIOUS RECORD?

Because here's the thing.  My client must actually be one of the luckiest men on planet earth.  My convicted felon client who was arrested for a robbery he says he didn't commit, who was being held on enormous bail on Rikers Island with little hope for success at a trial absent a miracle, was actually incredibly, amazingly, miraculously lucky.

He was luckier than a lottery winner.  All a lottery winner wins is money.

You see, it just so happened that the date of the robbery in question (October 8, 2013) was my client's girlfriend's birthday.  In and of itself, this is but a small coincidence, but it represents the first step in a cascade of good luck for my client.

It was important that the date was my client's girlfriend's birthday because this fact became a way to piece together where my client was at the time of the robbery.  My client and his girlfriend remembered that they had gone to the movies the night of her birthday, and they even remembered which movie theatre.

This was a start but my client and/or his girlfriend claiming to remember having been in a dark movie theatre at the time of the robbery isn't particularly compelling.  Imagine yourself as a juror, how you might discount such testimony as desperate efforts to create an alibi.

But my client's luck did not run out yet.

My client and his girlfriend remembered the particular movie theatre because they went to the movie with another friend, WHO WAS A MANAGER OF THE MOVIE THEATRE.  This gave us another witness (who remembered going to the movies that night) but it also gave us something even more valuable.

This gave us quick and simple access to the surveillance video at the movie theater.  Businesses are often reluctant to just hand over or even agree to preserve surveillance video.  Having an employee sympathetic to our cause meant that we would have no issue about cooperation in preserving the surveillance video.

This led to our being able to secure the relevant portion of the surveillance video from the night in question and it led to our being able to isolate my client, his girlfriend, and the friend from the theater exiting the movie and walking past the front desk area at virtually the exact time the robbery in question was taking place.

Now the video itself was not perfect.  As usual, it was not a close up and it was not absolutely positively my client (even though we knew it to be him).

What was lucky about this video, however, was that we had the two people who were with him in the video who were able to point to the video and confirm their own presence in the video AND were able to produce the clothing that they were wearing (down to the shoes) in the video as further evidence.  Further, we were able to produce my client's clothing which was also rather distinctive.

And nicely across the top of this surveillance video of course was the time and date stamp.

So there it was.

My client was absolutely innocent.  It wasn't an issue of the Government not having enough evidence.  There is no doubt.  My client was absolutely not the person who robbed the victims in the the case.  He was a great distance from the location of the robbery at the exact time of the robbery.

Even though the victim identified him.  Even though he had previous criminal history.

Now of course this makes a nice neat story and it would be nice if it all played out in the course of a couple of days.  But it didn't.  In the real world, this sort of thing takes time to investigate.  Once investigated, decisions have to be made about whether it makes sense to present this to the district attorney up front.  Once it is decided to lay our cards on the table, meetings with the district attorney's office have to be arranged.  In this case I decided to lay it all out to the prosecutor.  I handed over the video tape.  I brought the witnesses (and clothing) to the prosecutor for them to interview in private at their leisure.

Once the prosecutor interviewed the witnesses and reviewed the tape, the prosecutor took time to consider the matter, as is their right and duty.  They conducted additional investigation on their own.  They are in no way obligated immediately to respond regardless of how compelling it may seem at first blush.  This is a serious matter.

Ultimately, the Queens District Attorney's Office, upon evaluation of the case and the alibi evidence we presented, dismissed the matter.

This situation was a nightmare for my client, but it is hard to point to a single bad actor in the story, in all fairness.  I doubt the victim identified my client out of some evil motive or out of randomness.  I fully believe that the victim believed that he was identifying the right person.  So however frustrating it is, as long as the victim took his actions seriously, you can't really be mad at him.

Once the victim identifies someone as the perpetrator of a terrible crime like an armed robbery, what are the police supposed to do if not arrest the person?  In a perfect world, perhaps the police hold off on a decision until further corroboration besides the eyewitness identification can be established, but that is unlikely to happen in the real world.  So the police don't really have a stake in it.  They make the arrest and hope the court "sorts it out".

What about the judge at the arraignment?  The judge set very high bail, condemning my client to remain in custody for the duration of the case.  But the judge had very serious charges to deal with and a defendant with a serious criminal history facing very substantial amounts of prison time.  You can't really blame the judge.

The Queens DA's Office took some time to investigate the case, but what else are they supposed to do?  They have every right to want to be certain of their position and to consider the evidence I presented to them.  And then they ultimately agreed to dismiss the case.  They did exactly the right thing.

As hard as it is to accept, there really is no villain in this story.  It is a sad story with no bad guy.

(In a different situation, one option might have been to seek a bail reduction once we had the alibi evidence presented to the prosecutor, and such an application might well have worked out to an earlier release of my client.  For reasons that are not relevant to this article, the option of seeking a bail review to get my client out even before the prosecutor made the final decision was unavailable to us.)

This case was by far and away the best alibi case I have ever encountered as a defense lawyer.  Most alibi cases are a disaster because at the time of the crime the person accused was often either alone at home or if not alone, with a loved one whose testimony will be considered suspicious.  "I was at home with my mom" is not generally perceived as a powerful defense.  I was successful in this case primarily because my client got so very incredibly amazingly lucky.

Had he simply spent his girlfriend's birthday alone at her apartment that night, you have to wonder what would have happened.  How do you think you, as a juror, would have responded to the girlfriend of a convicted felon testifying that "he was with me" that night in my apartment?  And what if it weren't even her birthday?  Wouldn't you wonder why she would remember that particular night as opposed any other?  Remember, as a juror, you would have already observed the victim point over to the defendant and say "that's the guy who robbed me.  I'll never forget his face."

Eyewitness identification cases are very very dangerous.  If you ever imagine that a single witness identification case is an "easy" case to win for a clever lawyer, think again.  Jurors want to believe eyewitnesses.  Jurors are often kept from learning about what science tells us about eyewitness identifications.  Science tells us that, despite what we all privately believe, human beings are terrible (actually worse than terrible) at making eyewitness identifications.  Science tells us that our memories are not "video tapes" we run back in our minds.  Our memories are constantly subject to influence and even change as a result of those influences over time.  We don't like to believe this.  We want to believe that our memories are like video recorders and that there are certain things we will "never forget" because it makes us more comfortable to believe this.  The alternative, of living in a universe where our memories are easily changeable and generally unreliable, is disturbing.  Yet it is what science tells us is the truth.

Until we accept this better, and learn to take precautions against wrongly influencing memories, and learn to be a bit more skeptical of reports of memories, cases like my client's will continue to plague us.

And if that continues, have a look at the criminal court complaint above.  There might just be a criminal court complaint like that in your future.  Just add your name where it says "Your name here" and hope for the best.



 By Don Murray, Partner, Shalley and Murray

 Imagine the following scnenario: 

  Jack is 17 years old.  He wants to go to the most important party ever in the history of teenager hysteria.  Jack's parents can't give him a ride and it looks like he won't be able to go, when he learns that Bill, a loose acquaintance from school is getting a ride from Dan, and 18 year old senior with his own car.  Jack doesn't really know Dan at all, but knows of his reputation as being a "burn-out" from school.  Jack gets into Dan's car into the back seat.  Dan is driving and Bill is in the front passenger seat.  Jack notices that the car smells like marijuana inside, but he doesn't say anything, confident in the knowledge that he doesn't do drugs and has nothing to do with Dan or what Dan chooses to do.

On the way to the party, Dan blows through a stop sign, alas, right in front of a police car.  The lights come on and the police pull Dan over.  When Officer Calahan leans into the driver window to ask Dan for his license, he immediately says, "It smells like pot in here fellas.  Why don't you all step out of the car."  All three teenagers get out of the car and stand by the trunk while Officer Calahan's partner watches them.  Meanwhile, Officer Calahan begins searching for the source of the marijuana smell. 

He finds it.  In the center console of the car are a bunch of bags of marijuana, as well as hundreds of vicodin and oxycotin pills, and a loaded handgun.

If asked to evaluate Jack's situation at this point, most teenagers will think that Jack doesn't have too much to worry about.  They will think that because it wasn't his car and he was just getting a ride that Jack has nothing to fear.  A few teenagers might even wonder whether Officer Calahan had the right to be snooping around the car in the first place, actually feeling like they are in a position to take an aggressive position with respect to Jack.  Teenagers will fixate on Jack's pure innocence in this scenario.  Perhaps, they will even think that Bill and Dan will speak up to let Officer Calahan "know" that Jack had nothing to do with it.  Certainly, Jack will tell Officer Calahan that he had nothing to do with the gun or drugs in the car.   

What could possibly go wrong? 

Dan, Bill, and Jack will be arrested.   Dan, Bill, and Jack will be charged with criminal possession of a weapon in the second degree (a class C violent felony with a 3 1/2 year mandatory minimum upon conviction) and criminal possession of a controlled substance with intent to sell (a class B drug felony).  They will also be charged with marijuana possession related to the amount of marijuana discovered.

This fact pattern makes teenagers crazy.  But how can Jack be arrested?  What if Dan says that Jack didn't know?  Why doesn't Jack just tell the police he didn't know? 

Jack will be arrested, without the slightest hesitation by the police in this situation, because of "The Automobile Presumption".  New York's automobile presumption is a principle in our law that in essence says that if you are in a car, and there is illegal stuff in the same car (wherever it may be hidden), then you are PRESUMED to be in knowing possession of the illegal stuff. 

I should mention at this point, however, that the automobile presumption does not technically mean that if you are in a car with illegal stuff, you are "automatically guilty".  This is America after all.  We famously presume everyone to be innocent.  So our Courts have made sure to limit this presumption so that it is something that jurors are told to consider, but that they are free not to apply it to any given case if they believe the circumstances don't justify it. 

BUT...that being said, behold the power of this presumption:

  1. The police can arrest you based on this presumption (if they find you in a car with hidden illegal stuff).
  2. The prosecutors can prosecute you based only on the presumption (meaning they don't need any additional evidence to pursue you in court). 
  3. At the conclusion of the trial, the judge will remind the jurors that if they find that facts trigger the presumption, they are allowed to convict based on the presumption. 
  4. The jury can convict solely based on the presumption if the jury believes it is justified. 

Of course the accused is allowed to defend the presumption by presenting any evidence suggestion that the application of the presumption is not justified in his case.  For example, suppose a person in a car can show that he had just been hitch hiking and was only picked up by the total strangers in the car moments before the car was stopped by the police.  That might be an excellent argument to convince the jury that the presumption of knowing possession of the gun was not justified simply because the defendant was in the back seat when the gun was recovered by the police. 

So now let's look at Jack's situation.

There are a couple of things in Jack's favor.  One is that it wasn't Jack's car.  Clearly the owner of a car is more likely to be aware of the contents of the center console than anyone else.  Since Jack wasn't the owner of the car, then, the presumption is weaker against him.  

Jack was also in the back seat.  It's harder to get at the center console of most cars from the back seat.  That suggests that Jack had less control over the items in the center console. 

There are some more nebulous things potentially in Jack's favor too.  For example, testimony could probably show that Jack was not a frequent companion to Bill or Dan, although that sort of negative testimony is difficult to present well.  How do you really prove that two people "don't hang out"?  At some level it is possible, but it is messy and probably would require multiple witnesses and forms of evidence. 

You won't find Jack's fingerprints or DNA on the gun or the drugs.  Fingerprints are actually difficult to pull off most guns, so the absence of Jack's fingerprints on the gun isn't really particularly compelling one way or another.  Fingerprints in general aren't that easy to get. 

Often of great interest to people in these sorts of situations are the statements of each of the occupants of the car.  What if, for example, Dan decides to take the honest way out and say, "The gun was mine and nobody else knew about it."?  It frustrates people to no end when I tell them that such statements frequently have little impact on the police or prosecutors.  If you realize that there are motivations to say such things that spring from other sources than a great desire to be truthful.  The government is frequently reluctant simply to take the word of someone the government is prosecuting for being a violent criminal and dismiss cases based on that word. 

Or what about Jack's inevitable statement to the police telling them that he had no idea about the gun and drugs and all he wanted was a ride to the party?  This is not likely to influence the police or prosecutor either because this is simply what one would expect your average guilty person to say.

The automobile presumption applies to all areas of the car, by the way, including the trunk and secret compartments within the car.  

Now all of this should not be taken to mean that Jack has no hope or that Jack's presence in the car will make him automatically guilty right away and he is doomed.  Properly defended, Jack might well have an excellent chance of a favorable result from the criminal justice system. 

But the problem is that that result may well come after Jack's parents have to spend considerable money on a private criminal defense lawyer, and it may well come after Jack (and his parents) endure months of seemingly endless court appearances on the march toward the trial.  The trial itself will be a nerve wracking event until the point of the verdict, when, it is hoped, that the jury returns the correct verdict and acquits Jack. 

The fact that Jack must endure this process is not some sort of fault of the criminal justice system.  You and I know that Jack is innocent because I told you that as part of the story up front.  In the real world, people don't walk around with labels of "guilty" or "innocent".  If I told you simply that three teenagers were in a car with a gun and a lot of drugs, your first reaction would probably not be to conclude that one or more them had no idea.  Your first reaction would probably be to imagine three tough looking thugs (however you imagine that to look).   

The police have no idea the relationships among the occupants of a car, and the circumstances of a car stop do not generally allow for detailed, Sherlock Holmes style analysis.  Decisions have to be made on the spot, and the automobile presumption makes those decisions real easy.  No police officer is likely to get in trouble for arresting everyone in a car where there is a gun and lots of drugs.  On the other hand, a police officer might think twice about justifying to his boss why he chose not to arrest one of the occupants of a car in which there is a gun and lots of drugs.  It is far simpler for the police to arrest everyone and let the Court sort out the facts.

Then, once there is an arrest, the same idea can drive the prosecution.  Few prosecutors are likely to get in trouble for taking a car full of teenagers to trial on a case in which a gun and lots of drugs are found in the car.  Yet it is easy to imagine a prosecutor getting grief for dismissing the case against one of the occupants because of a sneaking suspicion that the occupant may not have known about the illegal things recovered from the car.








While prosecutors do, from time to time, make discretionary decisions to cut occupants out of cases, it is not by any means common.  The odds are probably greater that the prosecution will simply take the position that the factual issue of the defendant's knowledge about the illegal items is one that is best and most properly decided by a jury. 

While this of course is a completely proper analysis, the import of taking this position of course, is that the defendant is required to go "all in" on a trial.  Success is wonderful, but failure means (in Jack's case, for example) a mandatory minimum of 3 1/2 years in prison.  Those are heavy stakes indeed.

Not in the thick of it, teenagers will often easily say that they would have no problem taking such a case to trial because they would be confident that their innocence would prevail.  I have represented quite a few teenagers in Jack's position, however, who, when push came to shove, did not find it so easy to believe that the truth would win out in the end. 

In truth, Jack (and Jack's parents) would have some extremely difficult decisions to make.  In the end, Jack, with the help of a skilled criminal defense lawyer, may well prevail in the end.  But it will be a long, difficult, worrisome road.

It would be far better for Jack never to have been involved in the situation to begin with. 

So what is Jack supposed to do?  Not go to the big party?  Maybe. 

There are some practical things that a teenager should remember.

The automobile presumption means that every time you get in someone's car you are betting that there isn't anything illegal in the car.  Of course it would be impractical and impolite to insist upon inspecting every car you enter, although if you ever end up being accused of a terrible crime because of the automobile presumption you will wish you had.  But that is never going to happen in the real world.

For Jack, maybe the smell of marijuana when he got in the car should have been the signal not to get in the car at all.   Teenagers need to pay attention to their associates.  I think teenagers, like the rest of us, generally have inner voices that give them a pretty good idea when they are with people they should be with and when they are not.

I think teenagers ignore this inner voice more readily than adults.  Perhaps if they knew just how easily they could be sucked into a nightmare in the criminal justice system, they would listen a little closer. 

Our schools do absolutely nothing to teach kids about the automobile presumption, even though every single one of them is held accountable for knowing it.

People love to say that ignorance of the law is no excuse.  If that is true, then there is no excuse for our children being as ignorant as they are.



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.”

Not likely.

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 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?


A Queens man, Remel Newson, was arraigned on Friday, July 19 in Queens County after being arrested for Making a Terrorist Threat in violation of New York State Penal Code 490.20.  Making a Terrorist Threat is a D violent felony offense in New York, which means that if convicted of this charge, Mr. Newson faces a mandatory minimum of 2 years in prison and a maximum of 7 years in prison.

There is little publicly available information about the case just yet, but it is a fascinating scenario, especially in light of the recent media attention given to the Government’s interest in collecting information about American citizens.

Mr. Newson allegedly used the hashtag “killallwhites” in the context of a post to his Facebook status expressing outrage at the verdict in the George Zimmerman trial in Florida.  According to the NPR article cited above, Mr. Newson also allegedly posted the words “let’s kill cops nd neighborhood watcher”.

The lawyer who represented Mr. Newson at the arraignment is quoted in the NPR article in a way that suggests that the lawyer conceded that Mr. Newson himself posted the words on his Facebook page.  Perhaps Mr. Newson had already conceded as much to the police during the arrest to arraignment processing and questioning.  The lawyer did suggest, according to the NPR article, that Mr. Newson simply copied the words from somewhere else and pasted them into his status, adding that he essentially meant no harm.

Inevitably, this set of facts is going to ignite a debate about the level of offensiveness of the words Mr. Newson seems to have posted to his Facebook Status.

But before jumping down that rabbit hole, why not have a look at the statute itself and see if we can identify first whether or not the Government really has a case against Mr. Newson on these facts.

 Frankly, it probably isn’t subject to a lot of debate that calling for the killing of cops or all white people is offensive, especially to cops and white people.  But people are allowed to be as offensive as they like, as a general rule, as long as they aren’t committing crimes.  The Queens District Attorney’s Office has charged Mr. Newson with a very particularly serious crime.

So let’s have a look at it.

In order to be guilty of Making a Terrorist Threat in violation of PL Code 490.20, Mr. Newson must have had ONE of the following three intentions when he posted his status to Facebook:

 He must have intended it intimidate or coerce a civilian population.


He must have intended to influence the policy of a Unit of Government by intimidation or coercion.

He must have intended to affect the conduct of a unit of Government by murder, assassination, or kidnapping

Now it seems to me that the District Attorney’s Office probably ought to have more than simply the fact that Mr. Newson posted those words to his Facebook status in order to establish any one of these three very particular specific intentions.  Who is he broadcasting these words to?  How many Facebook friends does he have?  Was the post public?  Is there any evidence that anyone acted on the words in any way at all?  Did a riot start?  Were torches lit?  Were pitchforks raised into the air?

It seems to me that the words alone probably shouldn’t be enough to support evidence beyond a reasonable doubt that Mr. Newson had any one of the three intentions required by the statute to make his speech a crime.

I would probably expect that the District Attorney’s Office would need additional evidence besides the words alone.  Otherwise, it isn’t hard to understand the words in the context of the far simpler explanation: that he posted an obnoxious statement unwisely on his Facebook account.  I think there are probably few people who actually have Facebook accounts who have not deeply regretted at least one Facebook status update.  Of course not everyone has posted something like this, but the point is we all understand the concept of making stupid statements you don’t believe literally.  A teenager says that if she isn’t allowed to go the big concert on a school night she will “kill herself”.  Do you really drive her to the hospital to be committed for mental observation?  

Once the Government became aware of Mr. Newson’s post (which in itself poses another interesting question as to why they were monitoring his Facebook page in the first place), investigation of course is justified, and apparently just what happened.

What will be interesting to note, however, is exactly what, if anything more than the words, the investigation uncovered.

Of course I can imagine an investigation that might have revealed evidence justifying an arrest for exactly what Mr. Newson is charged with.  Perhaps an investigation might reveal plans, weapons, provocative literature, equipment, and other things that would corroborate the theory that Mr. Newson had one of the three required intentions listed in the statute.  On the other hand, if the investigation revealed nothing but the words and some marijuana, I’m not so sure that the case is more than just a sort of public service message to the citizens of New York to be careful about posting crazy things on Facebook.

The Queens District Attorney’s Office also faces the challenge of the second part of the Terrorist Threat statute, which requires that if Mr. Newson had one of the illegal intentions, that in fact he thereby causes a reasonable expectation of fear of the imminent commission of such offense.

It will be interesting to see how the Government would establish beyond a reasonable doubt that anyone was caused to have a “reasonable expectation” of fear of the “imminent commission” of any offense.  Again, it is certainly possible if the District Attorney’s Office has the evidence.  But it seems to me there will need to be more than simply the words themselves.  As an experienced reader of Facebook and the sadly rather frequent barrage of nonsense posted, simply the words, as obnoxious as they are, don’t in my mind create a reasonable expectation of the fear of imminent commission of anything, with the possible exception of starting a flame war on Facebook.

The case has already taken an unusual procedural turn.  According to court records the case was arraigned on Friday but scheduled for today, July 22.  Under most circumstances, this would mean that the defendant has refused to participate in the Queens District Attorney felony waiver program.  If this is the reason for the extremely short adjourn date, that would mean that Mr. Newson has refused to engage in plea negotiations with the Queens District Attorney’s Office and is insisting that they present the matter to the Grand Jury with the statutory time period (approximately 6 days from arrest).  Mr. Newson is, in this way, putting the Government to the test to bring forward some evidence before the Grand Jury sooner rather than later, and Mr. Newson will be afforded the opportunity to testify himself.

The Grand Jury will have the power to refuse to indict the case, if they believe that the Government doesn’t have sufficient evidence to believe that Mr. Newson might have committed a crime.  If the Grand Jury refuses to indict the case then the case will be dismissed.

If the District Attorney’s Office fails to present the case to the Grand Jury by the end of the statutory time (possibly today or tomorrow), Mr. Newson will be released without bail, but the case will still exist.  The Government has six months to get the indictment.

Typically, the District Attorney’s Office likes to get defendants who are charged with felonies to agree to expand the statutory time to get an indictment.  Statistically, most defendants charged with felonies do agree to this, because failure to agree to it means that the District Attorney’s Office will refuse to engage in plea negotiations.  This can be disastrous in many situations where the District Attorney’s Office’s cooperation is needed in order to negotiate resolutions below severe mandatory minimum prison sentences.  For those who know they want to go to trial from day one, this policy is not particularly important.

If indeed Mr. Newson and his attorney have decided to put the Government to the test in the Grand Jury, it will be interesting to see what the Grand Jury makes of it.

Stay tuned...


Today, June 3, 2013, The United States Supreme Court decided the case Maryland v. King, upholding a Maryland law that permitted the police to take the DNA of a man arrested for a violent assault as part of standard arrest processing.

I find the case fascinating in part because of the blistering dissent written by Justice Scalia that excoriated the majority for taking a substantial bite out of the 4th Amendment.  To read Justice Scalia's dissent, the majority opinion has charted a clear course for the Government to plunge us all into an Orwellian society where our DNA is virtually up for grabs for the Government to take and use "for the purposes of identification".

In the King case, Mr. King had been arrested in Maryland for a violent assault.  According to Maryland law, the police took Mr. King's DNA as part of their standard arrest processing.

The fact that they took the DNA in itself is the issue in essence, but eventually the DNA taken from Mr. King connected Mr. King to an unsolved violent crime from a number of years earlier.  Mr. King challenged the taking of his DNA upon his arrest as a violation of the Fourth Amendment's prohibition against illegal search and seizure.

The five Justice majority, led by Justice Kennedy held that the taking of Mr. King's DNA as part of the initial arrest processing was proper in that it did not violate the Fourth Amendment.

Justice Kennedy founded his position most firmly in the concept that the actions taken by the police in taking the DNA amounted to little more than taking steps that were necessary to ascertain the identity of the person who they had arrested.  The premise behind Kennedy's position is that the Government is entitled to take reasonable steps to identify the people it arrests for any number of good reasons, including for the safety of the police and for the proper determination of issues related to bail.

Justice Scalia, however, weighs in heavily on this point to dissect Justice Kennedy's argument.  By the time Justice Scalia is done, Justice Kennedy's opinion seems eminently forgettable, almost laughable (if the issues were not so serious).

What is most entertaining is when you learn from Justice Scalia that the Government didn't actually analyze Mr. King's DNA until months after the arrest.  Therefore, Justice Scalia was able to quite correctly ask the unanswerable question "If the Government took the DNA in order to identify Mr. King, who did they think they were dealing with for those first couple of months?"  

As if this doesn't make Justice Kennedy's arguments appear silly enough, Justice Scalia goes on to make the point that in fact, based purely on the fingerprint analysis that the police also did right away, the Maryland authorities had Mr. King's correct name, address, height, and various other pieces of identifying information -- which of course suggests that the need for Mr. King's DNA must have been for something other than "identification".

Justice Scalia also addressed the reaction that I know many people are likely to have to this case - that is, "How can you be opposed to something that seems so tame (taking a DNA swab) from a person arrested for a crime when in this very circumstance it resulted in solving a terrible unsolved crime?  

Part of Justice Scalia's response was to note that Justice Kennedy's analysis could easily apply to a wider range of circumstances than simply the arrest processing of a violent criminal.  Given that the analysis hinged on the Government's interest in being able to identify who it was dealing with for the purposes of maintaining safety, the same argument could be made to take DNA swabs of those stopped for speeding along the street, or those who want to board an airplane.  If the Government demanded DNA swabs of all those detained for traffic infractions or all those who seek clearance to board airplanes, crimes that are currently unsolved would no doubt be solved.  

Likewise, if the police simply searched everyone's vehicles top to bottom without any particular reason other than the value of identifying all those who are driving on public roadways, evidence of criminal activity would no doubt be uncovered from time to time.  Likewise, the police simply searching homes for no reason, might yield evidence of criminal activity from time to time.

Therefore, the fact that in Mr. King's case the Government was able to "hit the jackpot" is more a distraction than proof of anything worth proving.  They key is not whether or not the police were able to solve an unsolved crime.  The key is whether or not we are prepared to live in a society where in this particular situation we are required to surrender some of our most personal information for the Government to keep forever.

Something that Justice Scalia did not particularly address but I found disturbing in Justice Kennedy's majority opinion was Justice Kennedy's confidence that the Government would be good at using the DNA only for the purposes of "identification".  Justice Kennedy dismissed concerns apparently argued that DNA is the most personal of information about us and that it contains detailed information about our health and even the potential that we have to develop certain diseases.  Justice Kennedy dismisses these concerns because he is convinced that the Government can be trusted to do the right thing with this information and only to use the DNA for purposes of making the "identifications" with which he is so obsessed in his opinion.

I would like to know whether Justice Kennedy would be so confident in the ability of the Government to do the right thing with information under the following circumstances:  Suppose the Government had the right to some specific information contained within his personal papers and private daily journals.  I suppose Justice Kennedy would be content with the Government just keeping all of this material and only looking at the parts that the Government were entitled to look at.  Or maybe the Government has the right to some information on his personal computer at home.  Let's just let the Government take Justice Kennedy's home computer and we can all just trust that the Government will only look at the things it is supposed to look at and ignore everything else.

The very idea that the Government will be allowed to keep our DNA and that we can simply trust that the Government will only use our DNA for the purposes of identification for now and in the future is absurd and utterly fails to treat the Government with the healthy suspicion the Constitution requires.

I agree with Justice Scalia that this case is not limited to the case of the guy arrested for a violent assault.  The majority analysis does indeed seem to be ready-made to apply to the rest of us in a host of other circumstances where the Government can lay claim to some need for "identification".

On the day that the DNA databank for all US Citizens is born, if something like that ever comes to pass, historians will rightly be able to point to Maryland v. King and Justice Kennedy's majority opinion as the moment when the path to that end was charted.


The attention given by the press and, it seems, the government, to the issue of whether or not the surviving Boston bomber is being read Miranda warnings has got to be one of the stupidest things for people to waste time thinking about, ever.

Legally, it makes zero difference in his case. Zero. None. Zip. 

First, let's start with the basic idea and thereby begin to shed the outlandish popular notions about Miranda: Miranda warnings NEVER need to be read to anyone as an automatic requirement of arrest.

Miranda warnings only need to be read when the government wants to interrogate people who are in custody AND the government cares about being able to use the suspect's responses as part of its proof at a trial, in the government's case.

Therefore, if the government is interested in information for information's sake, they are free to interrogate someone as much as they like without Miranda warnings. If the Government has a case strong enough against a defendant that statements he makes are unnecessary to convict him, then there will be no penalty for the Government because the suspect's responses to interrogation will not be used in the government's case.

Second, if the defendant were to testify in the defense case, Miranda warnings are irrelevant.  Assume a suspect was not provided Miranda warnings and he made a long incriminating statement.  A court determines that Miranda warnings were not given when they should have been.  Therefore, the Court rules that the statements are inadmissible at trial.  Since the Government has more evidence than just the confession, the Government moves forward with the trial.  At trial, the defendant takes the stand and testifies that he didn't do it.  

Well, under current law, the Government would then be completely free to cross examine the defendant all about his confession EVEN THOUGH THE STATEMENT WAS RULED INADMISSIBLE BECAUSE OF A FAILURE TO READ MIRANDA WARNINGS.

This rule leads many law enforcement agencies to conclude that Miranda is essentially an optional provision because if they choose to violate Miranda and then get a confession, the confession will probably keep the defendant from testifying, even if the judge rules that the confession can't be used by the Government directly.

Further, media reports seem to be leaving the impression that if they read him the Miranda warnings some insane magical spell will be cast.  That is plain ridiculous. Police read Miranda warnings all the time and people sing like songbirds anyway. People already know about Miranda. People inevitably have ignorant ideas about the meaning and effect of Miranda warnings. But they know about them. If a suspect chooses to remain silent or request an attorney, he can do that whether or not Miranda warnings are read to him.

The police have discovered just how easy it is to read someone Miranda warnings and get them to make statements anyway.  It can be as simple as saying, "Sure you can remain silent, but everyone will think you are guilty unless you talk to us" or "The judge will go easier on you if you cooperate", or maybe in the Boston Bomber case, "If you talk to us now, maybe we won't seek the death penalty against you."  There is nothing wrong with the police saying any of these things or plenty more deceptive half truths that would probably horrify most people.

This whole non-issue is maddening ignorant nonsense.

No case in the history of the United States has ever been dismissed because of a failure to read Miranda warnings. Dismissal of a case is not the remedy for a violation of Miranda. In fact, when the Supreme Court decided Miranda, it did not dismiss Mr. Miranda's case. The Supreme Court sent the case back to Arizona for a retrial. Arizona tried Mr. Miranda again, convicted him again, and sent him to prison for a long time.