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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