The Real Story about What is Going on and What is Likely to Happen to Conor McGregor in New York City
The New York City Criminal Court system has put on quite a show in the recent matter of Conor McGregor in New York City, and the press is running wild with it. From my perspective as a 27 year veteran of the New York City Criminal Court system, the difference between what I see and the way this is being portrayed by the press and handled by the Court System is so different as to be laughable.
For example, the headline of a NY Post article reads, "Conor McGregor could face 7 years in prison for Barclays meltdown".
Yea right. That's a good one.
Listening to people talk about this case as if seven years is in play is like seeing a donkey in the street and listening to people describe a rainbow colored winged unicorn.
In my universe, in the courthouses I have worked in for the last 27 years, it is belly laugh out loud preposterous that Mr. McGregor could end up doing 7 years in prison for the so-called "Barclays meltdown". So I am now going to pull back the curtain from this case.
First, Let's Talk About the Charges - And Not Get Confused
Mr. McGregor is actually charged with various forms of misdemeanor assault, reckless endangerment, menacing, and criminal mischief, and also two felony charges. The two felony charges have nothing to do with the assault charges but are solely "criminal mischief" charges. Criminal mischief is essentially the crime of breaking someone else's stuff without his permission. It is an offense of property damage.
Criminal mischief is graded in seriousness into several versions or "degrees" as we lawyers call it. Generally, criminal mischief gets more serious as certain thresholds of value are met. The idea is that the greater the value of the damage done, the greater the seriousness of the crime. And this makes some kind of sense. Break someone else's pencil, and that should be less serious than destroying someone's vintage Corvette. But this really is the primary substantive difference from the misdemeanor version of criminal mischief (low property value) to the felony versions of criminal mischief (higher property values).
One sort of absurd problem with the criminal mischief laws in New York is that the threshold values were set by the legislature long ago, dating back to at least 1965, and have not been adjusted for inflation. At this point, the value that makes criminal mischief a felony is so low that almost ANY criminal mischief case could be charged as a felony. The threshold is just $250. Back in the day when this value was set, $250 was quite substantial and it made sense to say that more than $250 worth of damage should be considered so much more serious that the case would be treated as a felony. But today, in 2018, the $250 threshold is laughable. Adjusted for inflation and using 1965 as the reference, the $250 threshold would be nearly $2000 in todays dollars.
In the real world, criminal mischief charges are typically viewed as readily resolvable, almost annoying matters. The reason for this is that, absent peculiar circumstances or domestic violence related circumstances, criminal mischief is perceived as more a civil matter than a criminal matter. A pure criminal mischief case could just as easily be taken up in Civil Court where a person whose property was damaged could sue the person he thinks caused the damage. Many prosecutors loathe criminal mischief cases because it turns them into bill collectors as they seek "restitution" as part of settlement of these cases. Many judges loathe criminal mischief cases because they see them as civil cases at their core that do little but clog criminal court calendars and take time away from more substantive criminal matters.
As a result of the absurdly low threshold of felony criminal mischief, and out of a sense that they are typically going to be unlikely to bother seeking an indictment for criminal mischief alone, the District Attorney Offices, in cases that don't attract media attention, will often decline even to bother to charge the felony version of criminal mischief up front. Instead, even though they could charge felony criminal mischief, in an exercise of prosecutorial discretion, they will only actually charge people with the misdemeanor version. This is done often because of a sense of the reality that these cases are likely to be settled with a focus not so much on sticking the defendant with a criminal record, as much as on seeing if the complaining witness can be made whole for the damages. Absent extraordinary circumstances, restitution for the complaining witness will the be primary goal and the prosecutor offices will normally allow non-criminal settlements, or even a type of delayed dismissal settlement known as Adjournment in Contemplation of Dismissal. This is usually the case, even in many instances where the prosecutors do actually charge the felony version of criminal mischief up front.
So the notion suggested by the NY Post, that Mr. McGregor is exposed to 7 years in prison is downright laughable. Assuming that Mr. McGregor's case is not treated differently than almost every other criminal mischief case in the NYC Criminal Justice System, he may be asked to pay restitution for the damages he caused in exchange for a favorable (even non-criminal) offer on the criminal mischief matters. The notion, however, that in any universe even remotely connected to the universe I have been a part of for the last 27 years, that Mr. McGregor is facing down a 7 year bid upstate is media driven fantasy.
Breakdown of the Sentencing Possibilities
The seven years referred to by The New York Post would be the absolute maximum penalty that he would face if convicted of the most serious criminal mischief charge, and that isn't really exactly correct either. Assuming that Mr. McGregor has no prior felony convictions within the last ten years, his actual maximum exposure is what is called an "indeterminate sentence" of 2 1/3 - 7. This would mean that he would have to do 2 1/3 years before being eligible for release. Upon release, he would then "owe" the balance of 7 years to parole such that if he were violated, he could be sent back to prison to serve more time out of the 4 2/3 remaining. But even this more accurate description of his maximum possible sentence is ridiculous. Discussing it and thinking about it is as productive as discussing and thinking about how you will spend your lottery winnings.
Aside from the criminal mischief "felonies" everything else Mr. McGregor is charged with are misdemeanor level offenses, most of which carry a maximum theoretical punishment of one year in jail, of which one third is generally forgiven for good behavior. Although there are multiple charges, in many cases multiple charges are considered part of the same "transaction or occurrence" and therefore can not by law carry consecutive punishment. In Mr. McGregor's case, however, it is possible that different assault charges, against different people could be categorized as sufficiently separate to potentially carry consecutive terms. Under New York law, however, the most amount of time that can be served consecutively on misdemeanor charges is two years. Once again, the likelihood of these outlier scenarios coming true in the universe that I have been a part of for all these years is very low. Unless Mr. McGregor's case is treated differently than other similarly charged people, a settlement or even a sentence after trial is unlikely to be anything like these maximum jail scenarios.
$50,000 Bail - Not Normal in My Universe
Bail in New York State is supposed to be about answering one or two simple questions. The first question that a judge must answer when deciding the issue of bail, is "Can I trust that this person will come back to Court on the date that I set?". Under New York law, if the answer to that question is "Yes," there is no further analysis or discussion. The person must be released without any bail at all simply on his or her promise to return to Court on the next and following dates. If the answer is "No," the Judge must then decide what the minimum amount of bail is that needs to be set to convince the person to return as required.
Now Judges are accorded a wide range of discretion when answering these questions, such that it is readily acknowledged by our system that different judges will come to different conclusions about the same set of circumstances. This is acceptable on the theory that reasonable minds may differ, within certain very broad limits.
The law requires that Judges weigh three primary factors when making decisions about whether a particular person can be trusted to return to court when asked. Those factors, in order of importance in the real world in Court are, 1) seriousness of the case, including an assessment of the strength of the case, 2) prior criminal history of the accused, especially as to previous failures to return to court on previous cases, and 3) community ties.
The truth is that generally it is really the first two factors, and primarily the first that really set the tone or the ballpark that you will be operating in. For example, if you know that a person is charged with attempted murder, it almost doesn't matter the criminal history and community ties. You are in a zone where bail is likely to be set and it will likely be high. On the other hand, if you know that a person is charged with petit larceny (shoplifting), you are in a zone where no bail at all (meaning release) is a distinct possibility.
The Marketplace of Bail in the Court
In practice in New York City, and I am sure it is the same elsewhere, bail in criminal cases exists as a kind of market, and the longer you practice, the greater your sense of the "market value" of bail for certain types of cases and what factors influence that market value. Because different judges have different approaches to bail, you tend to get a range of bail determinations, but over time, you get a sense of what that marketplace range is from high to low. As an experienced criminal defense lawyer, you go into a bail argument with a certain ballpark in your head based on your understanding of the "market value" of the particular case you are handling. While lawyers may be frustrated if a Judge doesn't give them the exact result they are hoping for, as long as the Judge operates within the expected market value, it will be understandable to the lawyer. Lawyers can become angry at arraignments from time to time when a judge sets a bail on a case where the market would have dictated release without bail or that feels "too high" for the particular type of case.
So How did Conor McGregor Do in Terms of Bail?
To suggest that Mr. McGregor's bail determination was "out of market" would be a substantial understatement. Mr. McGregor's bail is $50,000. First, let's just have a look at the $50,000 bail from a perspective of the seriousness of the charges, which is not the only factor to be sure, but I am here to tell you that in the day to day reality of NYC Criminal Court arraignments, the seriousness of the charges is the prime driving factor that sets the tone for the bail determination, both as to whether bail will be set at all, and as to amount of bail, if there is bail.
So ask an experienced criminal defense lawyer in NYC who has handled more than 10 arraignments in NYC Criminal Court what the bail is likely to be on a case where the top (most serious) charge is a felony criminal mischief charge, and what will he or she say? I think most will say that for a person with no criminal history, there is unlikely to be any bail at all, and that if bail is set, it will likely be a sort of token amount of bail maxing out maybe at $2500 for an outlier Judge who might tend to set higher bail than most others. That would change if the accused has a criminal history, but probably wouldn't change at all or much if the accused has few ties to the community.
I don't have access to the statistics on this, but drawing on 27 years of handling arraignments in New York City criminal courts, I would be willing to bet that you wouldn't find a single other current case of someone whose most serious charge is criminal mischief, whose bail is $50,000 or higher. Even more telling, however, is that if you were to take a look at statistics for the bail set on violent crimes like robbery, attempted murder, rape, felony assault, and home burglary cases, you would find a wide ranging variety of these cases with bail equal to and lower (even far lower) than $50,000. People charged with armed robbery have bail routinely set at $10,000 and less even. People charged with felony weapons possession who are facing mandatory minimum prison sentences have bail routinely set at $5000 or even less. People accused of dealing drugs are often released without any bail at all or on bail of $2500 or less.
So What is Different about Conor McGregor that Such Astronomical Bail is Set?
I will admit that there are other factors in play besides the nature of the offense, even at a practical level. For example, I am not privileged to the information available to the Court regarding Mr. McGregor's prior criminal history, if any. I have no idea whether he has any criminal history or not. If the Court were made aware that Mr. McGregor had criminal history of some sort, this would be a factor that could suggest that even in the NYC Bail Market, bail might be set at some level. Even worse, if there were evidence that Mr. McGregor had failed to return to Court in the past when required, this would certainly justify a Judge in setting bail and in increasing that amount to beyond what would be market value for a person with no prior history or failures to return to Court.
Assuming, however, that no such information about prior criminal history or failures to return to Court was made available to the Judge, the only substantial factor that would remain would be the "community ties" factor. Frankly, this is what I suspect provided the technical grounds for the DA's Office requesting such wildly out of market bail, and what provided the Judge the technical justification for setting such wildly out of market bail.
The argument would be, presumably, that Mr. McGregor is not a citizen of the United States and is therefore a "flight risk". Therefore, he needs to be given a significant financial incentive to return to Court. If Mr. McGregor were not an internationally famous athlete who I imagine has designs on continuing his career that would include visiting the lucrative United States market, the argument might even make actual sense. Does anyone, however, really honestly believe that facing down misdemeanor assault charges and run of the mill criminal mischief charges, Mr. McGregor will go into hiding as a fugitive from justice? Is he going to flee to his secret underground lair under the Pacific Ocean with Dr. No, a James Bond villain, and spend the rest of his life hatching international plots? Or is he going to join Edward Snowden in exile out of fear of misdemeanor assault charges in New York City? Not that of course it isn't serious what he is charged with, but in the grand scheme of things in the wider context of the New York City Criminal Courts, misdemeanor assault charges and a couple criminal mischief charges are problems capable of resolution without incredible rest of your life altering down sides.
I am not privileged to know Mr. McGregor's finances, but I would imagine that he would have more to lose than $50,000 by becoming a fugitive from New York City Criminal Court. I imagine that it is in his best interests financially to be able to move about the world and make appearances in New York City and elsewhere in the United States without fear of being arrested as a fugitive from misdemeanor assault charges and a couple criminal mischief counts.
In some articles associated with this case, it has been suggested that the bail was negotiated ahead of time with the District Attorney's Office. If that is the case, then the Judge may have not been particularly involved in selecting the number, and the bail was simply presented to the Judge and the Judge agreed to go along. And why not?
The $50,000 bail is substantially higher than what most judges ever would have set in the real world for a case such as this, but if the defendant is OK with it, what's the harm in going along? In this case, it would have been the District Attorney's Office looking for the out of market bail, and the defense, I suppose just agreeing to it, whether it was really necessary or not.
The circus that Mr. McGregor's case became and the resulting $50,000 bail are both evidence of why media attention on criminal cases is a complicating factor. This is not to suggest that sinister things are happening "under the radar" but rather that when exposed to intense public eye, the fear is, anyway, that the decisions by the players in the system will become unpredictable, and out of market.
Had the exact same case played out in exactly the same way, except that the accused was an anonymous tourist from overseas, I think it would likely have played out far differently. I can say this with a fair amount of certainty because I have handled several similar cases (in terms of the charges of assault and criminal mischief) of tourists who get into fights in Manhattan in bars, for example, over the years. There is a decent chance the case would only have been charged as misdemeanor criminal mischief, and if bail were set at all, it would likely have been maybe $2500 or less because of the issue of the person being from out of the country.
Once again, nothing about this article should be taken as a suggestion that the accusations are not serious or that New York City is "soft on crime" or that assault or criminal mischief is OK in New York City. That is NOT the case. I am pointing out that, in the context of how similar cases are handled in the system as a whole, the perception of the ultimate potential outcome of this case by the media is overblown, and that the bail that was set was probably (because I don't have information as to Mr. McGregor's criminal history, if any) wildly out of the "market value" for bail for similarly situated cases. The suggestion here is simply that just as quantum mechanics tells us that observing an experiment can change the outcome of an experiment, intense public scrutiny or fear of intense public scrutiny may change the outcomes of standard decisions in Criminal Court matters.
So What is Likely to Happen?
If this case is treated as similarly situated cases have historically been treated, the case will likely end in a way that does not result in a criminal conviction or any jail time at all (assuming Mr. MecGregor has no prior Criminal history). There are several possible paths to this general outcome, including some convoluted settlements involving temporary criminal pleas that are later withdrawn, although such arrangements are not typically ideal for immigration purposes. Mr. McGregor will need to be mindful of resolving his case in such a way that his “admission” (even for a short while for events) to the United States is not jeopardized.
As a purely statistical matter, the likelihood of a trial is almost nonexistent, if his case is treated as other similar cases. Of course the concern here is that the novelty and excitement associated with prosecuting a famous person like Mr McGregor will cause more attention to be brought to bear and the system will respond in “out of market” ways - like looking for $50,000 bail.
Mr. Murray is a veteran New York City criminal defense lawyer, and founding partner of Shalley and Murray who has spent his 27 year career exclusively devoted to criminal defense. He has written extensively about the New York City Criminal Justice System and he has regularly consulted on various projects in the entertainment industry relating to NYC Criminal Court. Most recently he consulted on the set of the NBC Miniseries, The Slap to ensure that a Brooklyn arraignment scene appeared authentic.