The Wolf

The rumors had been percolating for weeks. A new trial supervisor was joining our public defender office and he was “a legend.” The regular line supervisors seemed cautiously thrilled, our Executive Director made vague promises as to how great it would be when he arrived – but until he actually showed up, nobody uttered his name. So the legend was born even before we had met. A lone-wolf trial god who would be the ultimate resource for everyone in the office who was serious about trying a case was joining our firm. “He knows everything about trials” they said. “He has never answered ‘not ready’ for trial” we were told. “He could never actually empanel a jury because during voir dire, no potential jurors could bring themselves to say that they wouldn’t be impartial in his presence.” That’s how good he was.

He arrived in the night on a weekend. He brought with him more than two dozen banker’s boxes full of case law and legal memoranda dating back four decades. Some of the copies of old cases were yellowed with age. Some had been reproduced using antiquated technology like ditto machines. Ditto machines. The Wolf had file folders full of documents reproduced on two-ply “spirit masters” or “ditto masters.” Seriously. These machines hadn’t been used since before I was born. I would grow to learn that to use this sort of machine the top sheet could be typed upon while there was a second sheet, coated with a layer of colored wax and the pressure of the typing transferred colored wax to the back side of the top sheet, producing a mirror image of the document. The wax-supply sheet was then removed and discarded, and the other sheet (containing the image) was fastened onto the drum of the (manual or electrical) machine, with the waxed (back, or reverse-image) side out. Only then could you make a “copy.” That’s how The Wolf explained it. But the point is, these documents that he travelled with were old. But the law was well settled. The law was still good. And The Wolf knew it all.

With the exception of the story about The Wolf as a young lawyer going into court and the judge asking him if “that was an erection in his pants or if he was just ready for trial,” all of the rumors and whispers that we had heard about Him turned out to be true. He was a true legend. He was a trial god. Born, raised and educated in the schoolyards of 1950s Queens he volunteered for the Marines, honorably served three tours in Vietnam where he saw a great deal of action, killed many people, was injured twice (one shrapnel and one bullet), highly decorated, and ultimately and honorably discharged to study criminal law. He was a public defender in Queens for decades, ultimately running that borough’s office before moving himself and his boxes to Brooklyn. And in those decades of criminal practice he had truly seen it all. He tried and won “a million” cases, and supervised even more.

Even though he decided to relocate his career, legal teaching and supervision to Brooklyn, as a life-long resident of Queens he was not about to move himself and his wife into Kings County just to improve his commute. So every morning he gets up before first light and gets on the first bus well before 6AM so he can be in the office by 7 to send the daily email of the newest applicable law to the entire office. Some mornings we would receive Appellate Division decisions from the day before, others would have applicable United States Supreme Court decisions, while some mornings, if there were no cases from the day before, he would send an email scan of one of those old Ditto Machine cases reminding us all of some well settled law. He expected everyone not only to read the cases each morning, but also to understand them and remember the holdings forever. Because he did. Because he does.

When he first arrived at our office some of the lawyers found his tone a little hard. He refused and continues to refuse to accept incompetence, laziness, ignorance or lack of passion. He cannot fathom the notion that someone failed to either read or understand one of his emails. And if he senses that a lawyer who comes to him for counsel doesn’t understand an issue or missed a point of law or hadn’t thought some detail of the case through – he will scream at them. He wants to win. The whole point of trying a case is to “walk the client out of the building” and if you think you’re a trial attorney and that isn’t your number one goal – then he is dismissive and unforgiving.

His rules are simple: know the case, know the law, win the trial.

And for these reasons The Wolf is the perfect commander during trial. I have had the pleasure of trying four very difficult cases while he sat in the front row, offering advice, legal strategy and relevant case law. We have won all of these trials in no small part because of the advice and expertise that he provides. His tone is firm and uncompromising. Whether he is speaking to seasoned lawyers, young lawyers fresh out of law school, judges, Assistant District Attorneys or clients he says what he believes and is unwavering. In the last case I tried with The Wolf we were speaking to the client and trying to determine if he needed to testify. The client was wavering as to whether he should or should not. The Wolf told the client in no uncertain terms that “you’ve got two major problems: your mouth and that brain below your belt. If you don’t listen to me I’m gonna fix them both. I’ll cut off your dick and cram it down your throat.” Although it could be argued that his bedside manner could use some softening, he is right. We should all be so fortunate to have mentors as categorically obdurate as The Wolf. When evaluating any case, I will always first ask what He would think.

The Wolf has touched and shaped hundreds of lawyers’ trial practice over the decades and undoubtedly save clients thousands of years of potential incarceration. He has been featured in highly successful criminal defense memoirs and is a true lion of New York City’s criminal defense bar. But every day he gets up before first light, with the brown paper bag lunch that his wife packs for him to ride two buses and a subway from Queens into Brooklyn to scan and email cases to his collection of lawyers. And then he goes about his business of walking clients out of the building.

Although I have chosen to omit his real name from this post, if you have had the pleasure of working for The Wolf or have ever been represented by him or one of his lawyers or opposed him or one of his lawyers – you know who I am writing about. The Wolf is one of a kind. The Wolf has taught us how to evaluate a case, tell a story and ultimately walk the client out of the building. And when you are a criminal defense attorney that’s really all that matters.

Next Time on Brooklyn Criminal, Stop Frisk.

First Trial

My first trial was a weapon case.  No, not that kind of weapon.  In fact, whoever you are, and whatever weapon you might be imagining, you are wrong.  Most of you thought of a gun or a knife.  Playing the percentages.  Wrong.  A good amount of you may have given into your primal instincts and gone with a bat, stick, or club.  Wrong, wrong, wrong.  Taser.  Wrong.  Bow.  Wrong.  Arrow.  Wrong.  No, the first time that I tried a case in front of a jury, my client was charged with possessing a throwing star belt buckle.

This item was amazing in its obvious non-weapon-ness.  For those who failed to spend enough time in the 1980’s (it was all robots and ninjas – it was awesome), allow us to go through the intricate components of the throwing star belt buckle.  A small detachable square of metal with a square hole in the middle attaches to another larger piece of metal.  That larger piece of metal has ‘Ninja’ printed across the top and bottom, ironically advertising something renowned for its stealth.  That larger piece of metal also, along with the help of a belt, holds pants up.

In New York, mere possession of a throwing star is illegal.  The legislature decided in the late 70’s to outlaw the scourge of people running around the state holding shirkens or “kung fu stars”.  They also went after chukka sticks (nunchukas) and cane swords.  The only possible explanation for these laws is that a large enough group of congress got together one night and watched kung fu movies while on acid.

Almost 30 years after the passage of such sensible and necessary legislation, six brave citizens of Nassau County determined that a large, goofy man wearing this incredibly absurd item (not throwing or using, just wearing) was guilty of possessing a weapon, the same as if he was carrying a switchblade, brass knuckles, or (at the time) an unloaded gun (recently increased to a felony in New York).  The DA, an underburdened chap with enough time on his hands to try such a stupid case, asked the judge to sentence the wearer of this belt to ten months in jail.

The judge, full of the right kind a wisdom, told the DA to stuff it and sentenced our makeshift ninja to 50 hours of community service, presumably as punishment for his inconceivable fashion decision.

ninja

Sorry, no righteous indignation here.  Just a man in a silly belt.

Next Time on Brooklyn Criminal, Why People Resist Arrest.

Prosecutorial Conduct: Prosecutor Turned Pimp

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The defendant could be considered, in no way, a good person or upstanding citizen.  The one week he spent in jail makes up a mere fraction of the total time he has (for the most part) rightfully spent behind bars for his numerous prior convictions.  Both of these things make what happened to him during this case easy to brush off.  It also makes the prosecution of his case highly forgettable.  However, the actions and inactions of this particular prosecutor exposed an attorney ill-fitted to the practice of law in an arena which purports to promote justice.

I first met the defendant during evening arraignments, affectionately referred to as ‘night court’ (the affection is for the TV show, not the exhausting 8 hour shift that usually follows on the heels of an 8 hour work day).  His case, unlike the numerous cell-phone snatch robberies and domestic violence misdemeanor assaults, had something different.  It had an A2 felony.  Cases of this severity, carrying a maximum sentence of 8 1/3 years to life in prison, rarely show their face in Brooklyn arraignments.  The occasional A2 drug case comes through, but this defendant’s paperwork said nothing about drugs.  This man was charged with Predatory Sexual Assault.

It was alleged that he followed a woman for approximately three blocks.  He then approached her, put a knife to her throat and forced her into the vestibule of an apartment building.  Once inside, he allegedly forced her, at knife-point, to perform oral sex.  He then left.

This case was memorable from the moment I picked it up.  The allegations were a particular class of horrifying.  Regardless of what those papers charged, it was now my task to stand beside this person that the government was saying had not just torn the social fabric, but doused it in gasoline and lit it up.

His side of the story is as irrelevant to this article as it was to the judge who presided over his arraignment.  His prior criminal record, along with his charges, were more than enough for the judge to set his bail at a quarter of a million dollars, about $249, 750 out of his reach.  People who are ROR’d, or released on their own recognizance, do a 180 degree turn and exit the courtroom and courthouse as free as a bird.  This defendant, though, he turned to his right to go back through the doors from which he was brought into the courtroom, just like he had so many times before.  But this time, his freedom had been lost based upon a complete and utter set of lies.

His case was adjourned the legally required 6 days for the DA to attempt to get a grand jury to indict him.  If he got an indictment within that time frame, then the defendant would remain incarcerated on $250,000 bail.  If not, then he would be released.  In the narrow window that we had, we were able to discover that a person with the same name as the alleged victim had been previously arrested for prostitution in the same part of Brooklyn as this alleged rape.  One of our amazing investigators also was able to finagle the surveillance video from the building’s management company.  The scene that played out in this video will hopefully someday fade from memory.  But today is not that day, and tomorrow seems unlikely.

As stated earlier, the defendant’s version of the story is not relevant.  As for deciphering the truth of what happened, neither was the victim’s complainant’s.  There is a phrase that, with increased surveillance, finds its way into more and more cases – ‘video never lies.’  While there can certainly be differing interpretations of the visuals, video footage has immensely more credibility than the words of cops, angered lovers, or, as was the case here, a prostitute who had been stiffed when it came time to pay up.

The video, surprisingly clear, showed the defendant and the complainant engaging in a brief conversation out on the street.  They both then turned, and walked into the vestibule of an apartment building, she, importantly, following him.  Once inside, the action rather quickly turned NSFW, but in our abnormal profession, it is not only safe for work, it is our work.  The complainant prostitute began fellating the defendant, right by the mailboxes in the main entrance of a decent-sized apartment building.  The shameless actors did not miss a beat as four different people entered or exited the building (presumably their building) during the tryst.  However, one would imagine their attention was somewhat split between this public sex act and the acrid cloud of freshly burned crack cocaine in the air.  That’s correct, our eyes have seen someone smoking what appeared to be crack while getting a blowjob.  As did anyone else who happened by that very public place that evening.  Memorable is one way to describe it.

Once the performance was over, the defendant made the one decision that cost him a week of freedom.  He zipped his paints, stuffed his hands in his pockets, and walked right out the door.  The video clearly shows no money exchanging hands.  Her reaction was subdued for a few seconds, and then it was swift.  She exited the building (leading us to a different camera’s vantage point), and within seconds, ran up to a pedestrian and had a very animated conversation.  That person chose not to get involved and walked away.  However, within a few seconds, she set upon another passerby who can be seen calling 911.  We know from the 911 call that she had told the caller that the client had forced her to perform oral sex on him at knifepoint, possibly 20 seconds after that had absolutely not happened.  The police arrived, heard those same allegations, found the defendant walking not too far from the scene and arrested him.

Although the police do not deserve a huge amount of blame in this case, would it have killed them to head into the building and try to get a look at the surveillance video?

The day of the possible grand jury presentation, we went up to the 16th floor to speak with the DA.  More importantly, we went to show the video to the DA (who, in the absence of the cops doing it, should have obtained the video and maybe even watched it himself).  We all gathered around and watched the defendant being a pretty bad person but doing precisely none of the incredibly serious criminal conduct that had been alleged.  After the video concluded, the DA was understandably a bit shaken.  But, as is so often the case, with an open door that leads to the thing that is right, he tried to break down all of the locked doors that might possibly get him his conviction.

After a bit of stammering and a pregnant pause, the first thing that he said that would count as an actual statement was, “Well, he did commit a crime.”  Presumably he was referring to the patronizing of a prostitute (the DA was also unaware that she had a record for prostitution) and the drug possession, both of which are misdemeanors and wholly unprovable at this point.  He had zero leverage.

Mind you, this story loses its human value when the aggrieved party is, at best, a crack-smoking prostitute stiffer.  But that misses the point.  The prosecutor.

It was clear from our interactions that the DA knew literally nothing about this supposedly incredibly serious case.  But we did not need him to know anything at this point.  The information contained in that video provided the entire story.  Once he saw that story, he should have immediately dismissed the case.  But his motivation was to make sure he still obtained his pound of flesh instead of focusing on the fact that he, his office, and the police had been made into pimps.  Instead of her running to some underground enforcer, she called the police, and they and this DA made damn sure that this man knew that this girl was not to be trifled with.

Now, people make mistakes.  That is clear and forgivable.  However, this case showed law enforcers who do the absolute minimum.  It showed cops who could have, with the most cursory investigation, have still made an arrest.  They could have arrested the prostitute for making a false report.  But even worse, it showed a DA who cared not at all about the truth or justice.  When presented with the fact that the power of his office had been used as retribution for unpaid sexual services, he asked us what plea the defendant would take to get rid of the case.  He wanted us to actually have him plead guilty to something that he knew the defendant did not do.  His offer was rejected.

He did not put the case into the grand jury (probably because he is somewhat familiar with the rules against blatant perjury), but he also did not dismiss it.  He allowed the case to remain open for another six months until it was dismissed based upon a violation of our client’s speedy trial rights.

So what?  Right?  This guy spent a week in jail and had a sex charge hanging on him for six months.  Maybe next time he will pay up.  Since then, he has probably continued down his path of indecency.  She has likely continued to exchange sex for money.  The defendant and complainant are who they are.  But this DA, he is the one who acts on our behalf and does so poorly.  It would not be a shock to learn that he has never spoken to her.  He probably never spoke to her before he tried to get our client to plead guilty to a very serious crime.  He almost certainly never told her that if she ever filed a false report again, that she would be arrested.  He undoubtedly never recognized that he failed miserably to administer justice in this case.

He may have begun as her unwitting pimp, but he ended up wearing full velvet.  His complete and total abdication of his responsibility as a prosecutor happened to a bad person.  This time.  What about all the good or even not-bad people whose lives have been in the hands of this prosecutor?  He does not differentiate.  How could he when he barely examines the most basic elements of the cases assigned to him?  Whenever the truth is not central, much less considered, justice is impossible.  This DA is no black sheep, rightfully ostracized for his failings.  The saddest part of this whole story is that there are many of his colleagues who would have treated this case the same way.

Next time of Brooklyn Criminal, First Trial.

Prosecutorial Conduct

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The one thing you can say with absolute certainty is that cops have directly killed many, many more people than prosecutors have in the last year.  Even if the occasional District Attorney did go rogue and murdered someone, it would be impossible to argue that it was “job-related” or “justifiable” the way seemingly all killer cops can.  Police are undeniably the face of injustice in this country right now, and they have done a great deal to warrant that reputation.  However, the badge-wearing boys in blue need to step aside at times so we can recognize that prosecutors have done at least as much damage to this country’s notions of justice as they have.

The reason that cops get the press and the prosecutors get the pass is quite simple.  Cops are much more visible than prosecutors.  They work in public, wearing easily recognizable uniforms and driving noisy cars with flashy lights.  Prosecutors, on the other hand, are merely people in normal business attire.  Most of their work day is spent in their office or in the courthouse.  Cops could not be more visible (and for good reason) while prosecutors toe the line of professional invisibility.

It would seem that this vast difference in public persona between the two professions contributes greatly to the spotlight that is shined on police for their numerous failures, while the misdeeds of prosecutors often go unnoticed and always go unpunished.  Cops most definitely have the ability to wreck a person’s life.  It can be altered by an arrest that never should have happened, or it can be ended to avoid a perceived threat (or inconvenience).  In spite of the attention they receive, police are granted an immense amount of leeway because of the nature of their work.  They often must make split-second decisions.  And while their ‘us-versus-them’ culture often leads to so many of these decisions being terribly wrong, it is an understandably difficult aspect of their profession.

Prosecutors do not work in this same split-second decision making environment and they are under nowhere near the same public scrutiny as the police.  They often have as much time as they want (and then more) to make their decisions.  They have ample time to investigate their cases fully (but rarely do), assess the possibilities, and then determine a just outcome.  In fact, that kind of deliberative determination is, in theory, the entirety of their job.  Our experience, though, has been that prosecutors too often begin at the conclusion instead of the question.  They operate with an assumption of guilt within a system supposedly centered around a presumption of innocence.  This is a very problematic mindset for the most powerful players in this system.

Ask any DA and they will tell you that their job is to seek justice.  But true justice can only be built upon the truth.  Granted, in most cases, it is impossible to know the truth with absolute certainty.  But to not even seek it is absurd, and it is absurdly common.  Essentially every case begins with the cops telling the DA that a particular person committed a particular crime.  From that point on, any information or evidence which undercuts that person’s supposed guilt seems to be discarded or ignored.  Defendants have produced government-issued ID’s or utility bills to show that the address where they were allegedly trespassing is, in fact, where they live.  Instead of a well-deserved apology, many DA’s have, instead, questioned the authenticity of these items, choosing to believe that this person was able to obtain amazingly accurate counterfeits instead of the more simple scenario, that the police just rounded up whoever they could find in the hallways of a building.

Why is it this way?  Everyone recognizes that judging a cop’s job performance based on the number of arrests he or she makes is wrong.  The reason this metric is so commonly used, though, is because it is so easy.  It is the same failure of the standardized test within the teaching profession.  And it is this same simple, but wholly counter-productive standard of professional measure that has transformed so many starry-eyed, justice-seeking prosecutors, into conviction-centric, tunnel-visioned DA’s.  There is an environment in which any DA can offer a plea of jail or prison time to a defendant without a whiff of oversight.  However, to throw out a case which never should have been brought in the first place requires meeting after meeting with superior after superior, all within a culture where conviction is the default, and justice has lost all meaning.

Here is a not uncommon example of precisely how this mindset ‘works’.  The charge was robbery.  It was alleged that three young men assaulted another young man and stole his skateboard.  The victim knew all three of the defendants by name as they were neighborhood acquaintances.  One defendant, who had never even been arrested before, was charged with a violent felony offense for the first time in his life.  He was arraigned on the robbery charge and based upon the DA’s allegations, the judge set bail.  This young man spent days on Riker’s Island before his family could raise the money to get him out.

The first six months of this case were the typical snail’s pace of something called OFD or ‘open file discovery.’  Basically, OFD is the process whereby the police inexplicably take anywhere from 6 months to a year to hand their paperwork over to the DA, who then provides it, piecemeal, to defense counsel.  This process is intentionally delayed to ensure that the charges hang over a defendant’s head for as long as possible (pressure).  The prosecutor knows that fatigue has contributed to just as many guilty pleas as actual guilt.

Some defense attorneys prefer the slow pace, as the more distance that is gained between the crime and the plea can sometimes soften the impact (and thus lessen the punishment).  The other side of this, however, is the fact that thousands upon thousands of people are forced to make plea decisions which will impact the rest of their lives without having any or all of the information in their case.  This is a much larger problem, and it is completely unnecessary.  Once the police hand a case over to the DA, they are done.  There is no continued investigation.  All the paperwork they will generate in this case is ready to be turned over to the lawyers on day one.  In our modern world, there is no technological or procedural impediment to getting a single copy of all of that paperwork to a defendant before making him decide whether to plead guilty.  It is a tactic, plain and simple.

Back to the robbery though.  During the first 6 months of this case, there were a number of plea negotiations.  Each would have saddled this young man with a criminal record, altering his life forever.  But as his circumstances were looking more and more dire, we were finally provided the initial police reports, the ones that were taken from the victim right after the attack.  Bang.  The victim had told the police that he had been robbed by two, not three people, and named the other two defendants as the attackers.  As it turns out, our client happened to be with the other two assailants (they were friends) when the victim saw them days after the attack and called the police.  When the police arrived, he changed his story to include our client.

What is worse?  That the DA hid this exonerating evidence from us while he tried to get our client to plead to a crime they could never prove, or the real reason – that this DA had never even read the police reports in a case he had been prosecuting for 6 months?

It is troubling that we had to bring this incredibly relevant piece of evidence to the DA’s attention, but his reaction and response were disgusting.  He read the police report for the first time right in front of us, and we got to witness the wheels turning.  He could have been a decent human being and admitted that he had totally failed in his role as a prosecutor and would make things right by dismissing this case.  But that is not what happened.  Instead, he kept looking for a missing page in the report (that would have presumably had our client’s name) and when that fruitless search hit a dead end, he looked at us and said, “Well, it’s just a mistake.”  He made this declaration without ever asking the cops who wrote the reports if they agreed with his self-serving and wholly unsupported conclusion.

To anyone looking at this evidence with an open mind, the police reports obviously support the following facts: the first time the police spoke to the victim, he told them that he had been attacked by two people, neither of whom was our client.  However, if you assume guilt (in complete contradiction to the most basic principle of our justice system), then you have to fish around for excuses that would make a third-grader blush.  Well … the cops wrote down 2 perps when they really meant to write 3.  Well … when they tried to type in our client’s name, height, and weight, they accidentally didn’t (?).

The proper result was achieved (eventually) in this case, in spite of the DA’s misguided efforts.  To those who practice in opposition to prosecutors, this may sound like a fairly mundane scenario.  But that is the problem.  So many barriers to true justice are seen as immovable and allowed to stand unchallenged (for the most part).  We focus on the headline grabbing exoneration instead of the rusted gears which grind millions of innocent (and not as guilty) people down.

Except in extreme circumstances, a cop can generally take away someone’s freedom for about two days.  A prosecutor can take it away for two weeks, two years, or two lifetimes.  They have immense power, and when that power is not aligned with justice, the consequences are devastating.  We have seen too many DA’s who are predisposed to believe, without corroborating evidence, the most fantastic stories imaginable as long as it supports guilt.  But they become fanatical pessimists when faced with evidence of innocence.

People who run afoul of the law must be punished.  We do not argue against that ideal.  What we must change, though, is a system that seeks to punish ALL who are dragged into it, with surprisingly little attempt to differentiate between the guilty and the innocent.

There is no end to stories like the one above.  The only way to expose them is to tell them.

Next time on Brooklyn Criminal, Prosecutorial Conduct: Prosecutor Turned Pimp.

The Twenty Minutes Before a Verdict

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The light on my phone has been blinking for 2 weeks.  It will just have to continue to blink for today.  I did have the time right now to check my messages, but my mind was not in the right place.  I had dropped 6 pounds and had not slept past 4:30am in weeks.  All the other problems were going to have to wait.

Co-workers were avoiding me.  That’s actually how I prefer it to a certain extent, but with the jury out, people were going out of their way to ghost me.  It had been three days since I gave a closing argument, and since that time, I had done my best not to try to figure this jury out.  It is impossible not to read into every word or comma in the jury’s notes, but it gets you nowhere.  I could focus on juror number 5 and his increasing (or seeming) isolationism.  He could be a nervous holdout for me, or he could be exhibiting perfectly normal symptoms of a person asked to decide the fate of another human being.  All I can do is try to turn my mind off.  Wait it out.

The silence breaks.  I reach for the phone.  The clerk is summoning me back to the courtroom.  Each time the phone rang before, there was anxious excitement that this was it.  Months of work had led up to these two weeks of, basically, trying to convince a group of strangers that I was actually on solid ground during a tight-rope walk.  The previous calls had only been to alert me of questions from the jury, the legal equivalent of the wrong guy walking into a surprise party.  After each call, we would assemble for some of the only amicable and agreeable moments during this entire arduous process.  In that regard, it was a good way to mend some of those fences I had kicked down throughout the trial.  But it always seems that the one time I am not expecting an end is when it comes.  “The judge wants you back.  It’s a verdict.”  I pack up my things, and make the walk to court, my mind an equal mixture of elation, terror, and review.  One of the few walks a lawyer will make without so much as a briefcase.

Walking into the courthouse after lunch, there are very few people in the hallways.  I happen onto the elevator with an attorney heading to the fourth floor to likely sit all afternoon waiting to do three minutes of actual work.  He sees me hit a high floor button, a trial floor button.  Asks if I have anything going on.  “Verdict.”  “Good Luck.”  All attorneys know that those two words are both required and the maximum amount of conversation that should happen. He exits. I wait.

As I take the turn towards the courtroom, I breathe deep to abate the knowledge that in a few minutes, I will either have failed or succeeded in saving a person.  Inside, the court staff and officers are at their posts, chatting about everything but the trial.  The conversations this time are a bit tighter though, a recognition of what is about to happen.  Normally, I would chat it up with whoever became my friend during this trial.  Now, I simply don’t have it in me.  My body has been deprived of all normalcy while being made to run at close to full speed.  It also knows that the end is near.  It is getting a head start on closing up shop.  I drop into my chair and sit motionless at the defense table.

This is usually when the second guessing begins, and now is no exception.  Those bad moments during the trial begin to fill the space around me.  The DA walks in and we exchange pleasantries that have been completely stripped of any hint of well-wishing.  It isn’t that I necessarily wish him ill will, this time.  But the person who is about to be brought out to hear what his life will be like from this point forward, he needs all the luck.  And whatever is leftover goes to me.  I go back inside my head.  I’m dissecting their final note.  “We Have Reached A Verdict”  No period?  All words start with a capital letter?  What form of grammatical anarchy is going on back there?

The door to my right opens suddenly.  An officer steps through, followed by my client.  At this point, all of my anxiety dissipates.  I shift gears and play the part of the firm and confident advocate.  This time it’s a ruse.  Much different than the collected defender who stood between that jury and him throughout the whole ordeal and demanded justice FROM the government, not for it.  This is an actor playing a part.

He doesn’t seem to need my support.  He has a strange, firm calmness about him.  It is somewhat unsettling.  He has a million more reasons to be terrified than I do.  If things don’t go our way, I get to stand up, gather my coat and bag, and leave.  I get to go home to my family and work on getting over the defeat and everything that means to me, both professionally and emotionally.  He, on the other hand, has to face the realization that he may not get that same opportunity for a long time, if ever.

The Judge slips into the room and takes her seat, carrying the exact same judgely evenness that we have seen for the last two weeks.  Her sudden presence ends all conversation and movement.  It does not matter if your trial judge runs a strict and proper courtroom, or a casual one, the possibility of the gallows turns them all somber and silent.  She reads the note in front of everyone and checks her right.  The officer at the door confirms that the jurors are lined up and ready to become the only people that matter in that whole room.  The Judge orders them in.  We stand.  We always stand.

Every time the door opens for a verdict-carrying jury and I catch sight of that first juror, that is when I fully recognize the gravity and finality of it all.  I scan their faces for a clue, knowing full well that this 11th hour intel is totally meaningless.  My client stands motionless, head forward.  Every juror has taken their seat.  Then comes the moment of pure, unadulterated anxiety, when the clerk asks the foreperson to stand.  She rises and answers in the affirmative that the jury has, indeed, reached a verdict.  For the sake of brevity, I will interject that rarely does a criminal trial include only a single count, so the process of finding out if we won or not is often convoluted and tricky.  You could hear “not guilty” three or four times before finding out your client is spending the next decade in prison.  However, there is usually one response during the recitation that lets you know what kind of night you will be having.  When that moment comes, it is like the falling dream that wakes you up.  It is the same physical sensation but with a very different outcome.

The verdict is read.  And then release.  One way or the other, there is always release.

For those who have stood there … you know.  Those minutes, those moments, are a terrible you can’t wait to get back to. You can stave off a good deal of the nerves during the trial with meticulous, painstaking preparation, but there is nothing you can do to prepare for those final moments.  It takes a certain kind of person to do this. And then to do it again.  And again.  Lose, and you second guess much of what you did, third guess what you didn’t, and fourth guess all the things that got you and your client to that point at all.  After a win, you feel great.  You feel correct.

All jury trials end with the judge praising the jury for their dedication to this most sacred task, thanking them for their service.  These are the moments where your mind races amidst the joy of victory or bogs down with the unfinished business of sentencing and appeal.  I recognized the human reality of what I had engaged in.  It is impossible not to.  I had endured this difficult struggle, with so much on the line, and I had done it all for someone else.  From start to finish had been rushes and flashes of every emotion imaginable.  But this time was different.  During these final moments, instead of focusing on what I had gone through, I looked over at the DA, sitting at a table just like mine.  I realized that even though this DA had been there every step of the way, he had absolutely no idea what it was like to be this kind of trial lawyer.  He had no idea what the last twenty minutes had been like for me.  And maybe that’s why he lost.

Next time on Brooklyn Criminal.  Prosecutorial Conduct.

Cops Lie: The NYPD v. The People

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Without dismissing the valid and necessary discussion regarding race and policing, there is another divide that defines the current state of police-civilian relations … trust.  On one side is a trust in the perfection of cops, an almost religious-like defense.  On the other is an almost complete distrust of all things police, which can manifest as disrespectful protest or much, much worse.  While we at Brooklyn Criminal would classify ourselves as having a healthy distrust of the police, we have no intention of talking in extremes.  We have a good deal of experience with the criminal justice system, the bulk of that as public defenders in New York’s most populous borough, Brooklyn.  We are here to talk about our experience dealing with cops, prosecutors, and the people that are affected by them.  So many public conversations in this arena occur on eggshells, with the rare meaningful statement only made amidst reverential disclaimers (e.g. Police have difficult jobs but… , the vast majority of cops are good people but….).  Not here.  Here, we intend to not only give a voice to the views held by so many New Yorkers and Brooklynites, but we intend to support those views with the kind of arguments that have made us damn good trial attorneys.  No disclaimers, no apologies.

Cops lie.  This is something we, personally, have heard thousands of people say to us as their lawyers, friends, or just in random conversation.  However, this statement never sees the light of day in the media.  Talking heads fall over each other to constantly heap generic praise on the police, often calling them — all of them — heroes.  However, as soon as the Times or Village Voice writes an article critical of specific police actions or policies, the conversation quickly turns to whether criticizing the police is even allowed.  Policing in this city and this country will never change as long as the many voices who legitimately distrust the police are not allowed to join the conversation.  These voices are valid because they rest upon decades of police misconduct, everything from horrifying corruption to endemic bullying.  Frank Serpico, an actual hero, is still seen as a ‘rat’ by the rank and file of the NYPD.  Louis Scarcella lied dozens of innocent people into long-term prison sentences and still walks the streets a free man.  No one will ever receive so much as a reprimand for the choking death of Eric Garner.

These tales, which seem to find their way into our news on a daily basis, are paired with other stories of cops fabricating evidence (lying), destroying evidence (lying), forcing confessions out of innocent people (lying), and many other forms of systemic dishonesty.  But under the constant deluge of such stories, what has never happened?  An admission of wrongdoing.  The NYPD, one of the most historically corrupt departments in our nation’s history have never admitted to doing anything wrong.  In fact, when they have been called to the carpet for engaging in criminal activity, they have responded with petulant indignity.  Even recently, following unspeakable tragedy, when the entire city had thrown their support behind the department, it’s leaders decided to blame the public and its elected leaders for directly causing the murders of two police officers.  This us-versus-them mentality within the police department is not unique to New York.  The Fraternal Order of Police in Baltimore stated, very publicly, that “bloodshed will most likely continue until those in positions of power realize that the unequivocal support of law enforcement is required to preserve our nation.”  However, as goes the NYPD, so goes the rest of the nation, so let us begin to peel back that onion.

Allow your mind to drift back to a time when young men from New York’s poorer neighborhoods were being arrested constantly for ‘possessing marijuana in plain view.’  It isn’t that difficult as the mind need not drift at all, for these arrests still happen today.  Here is a fact.  Possession of personal amounts of marijuana was decriminalized in New York in 1977.  One would assume that such a law change would drastically reduce the number of people arrested for public possession of marijuana.  That logical assumption, however, has been stamped out by the NYPD’s incessant, machine-like need to make arrests.  At first, marijuana arrests declined, but between 1997 and 2010, over 500,000 people were arrested for possession of marijuana in public view, making New York the marijuana arrest capital of the world.  In 2014, Mayor Bill de Blasio promised to end arrests for possession of personal use amounts of marijuana (i.e. have the police finally follow this 35 year old law), and weed arrests in New York actually increased during his first year in office

So here is a question.  How have the police been able to continue making tens of thousands of marijuana possession arrests each year when such an act was deemed only a ticketable offense back in 1977?  When the legislature decided to take action to reduce the number of marijuana arrests occurring in New York state, they determined that it would still be a crime (albeit a misdemeanor) for someone to possess marijuana that is burning or in public view.  The clear, undeniable purpose of the caveat “in public view” was to make it illegal for people to smoke pot openly in public.

The NYPD saw not a policy handed down by the people’s representatives, but a gaping loophole which would allow them to continue to make obscene amounts of arrests.  The NYPD, especially under Ray Kelly, engaged in a systematic campaign of lies and deceit to make sure that they could continue to make enough arrests to justify their bloated existence.  For decades, hundreds of thousands of New Yorkers (mainly poor, young kids) have been arrested for possessing a bag of marijuana in public view (not a joint or blunt or pipe; a bag).  During the stop-and-frisk years, police would routinely whomever they decided to stop and frisk to empty their pockets. When the person stopped would produce a small bag of marijuana, he would summarily be charged for possessing marijuana “in public view”.  In a rare instance of honesty, both the NYPD and the city’s D.A.’s offices openly admitted to this Kafkaesque practice. (To its credit, the Bronx D.A.’s office declined to prosecute these offenses).

Even with stop and frisk gone (is it really?), “public view” arrests continue.  While there have certainly been a few instances where cops have actually seen someone with a bag of marijuana in public view, the notion that this happens hundreds of times a day in New York City is absurd. To be certain, there is plenty of anecdotal evidence to support the idea that police almost never actually see this tiny, innocuous bag of grass in public view.  However, the simple fact that arrests for pot possession drastically increased following decriminalization should tell you all you need to know about the NYPD’s policy regarding honesty.  This fact alone is persuasive, but it is also unsatisfyingly general.  So let us switch gears and provide proof beyond a reasonable doubt that the NYPD is not to be trusted.

Over the course of our careers, we have had eyes on hundreds of cases that follow a very simple set of allegations.  The police pull a vehicle over for a minor traffic infraction (speeding, failure to signal, overly tinted windows, etc.).  When the police approach the vehicle to presumably ask for license and registration, they observe drugs in plain view in the console of the vehicle.

This ‘fact’ pattern (simple traffic stop, drugs observed in plain view in the console of the vehicle) seems to make up the majority of cases where the police claim that they found drugs in a vehicle pursuant to a traffic stop.  First, there is no reason to assume that our observations have been an anomaly in this field.  At this point, it can be said, without reservation, that the police allege that they see drugs in plain view in the console of a vehicle in a sizeable portion (majority?) of traffic stops.

Second, let us examine the full reality of such an allegation.  For the drugs to be seen in the console, that would mean that the driver has decided to place them or leave visible contraband in that console.  He has foregone numerous pockets, a glove box, or even the floorboard, to have these drugs sitting in the console while he is driving.  While this surely has occurred, there can be no doubt that such behavior is extremely rare.

Third, even if you were to assume that a particular person was driving around with drugs sitting visibly in the console, what happens when he gets pulled over?  Most of us who have had the misfortune of being pulled over know that the cop is never in a rush.  There is the time that it takes you to see their turret lights and pull over to the side of the road.  The quickest this would ever happen is 15 seconds.  Then, once stopped, you sit there for a full minute at the very least while the officer runs your plate, exits the vehicle, and saunters up to the window.  During this entire period of time (1 minute 15 seconds, minimum), a person sitting next to drugs that are in plain view, fully aware that a cop is about to look into his vehicle, fails to simply put them in his pocket or drop them next to his seat?

These same allegations have routinely been made when multiple people are in a vehicle, further defying reason that numerous people failed to take evasive action prior to the police looking into the car.  Of course, one can imagine reasons why this person or that person might leave those drugs sitting there like a present for those cops, but, once again, we can agree that such a scenario is extremely rare.  So at this point, one of two things is true.  Either hundreds if not thousands of people per year are too slow and stupid to hide their console drugs or these cops are lying.

Finally, what the hell is a console?  The allegations never say “cup holder” or “tray.”  No, every different type of structure that exists between the front two seats of a vehicle (including closed compartments) are all classified generically as a “console.”  Cops love to keep things vague to mask the reality of what happened.  Unfortunately, many judges fail to require the specificity one would expect when a person’s freedom is on the line.

So, in these arrests, what really happens?  Most of the time, the police illegally search the vehicle without any legal basis and actually do find drugs.  Some of the time, the police illegally search the vehicle without any legal basis, don’t find drugs, but plant, or “flake” them so they can make an arrest.  You could probably count on one hand the number of times that a cop making a simple traffic stop has actually looked into the vehicle and actually seen actual drugs in plain view.

Going beyond the question of do they lie, the obvious follow up is why?  It is actually quite simple.  If a cop says he just happened to innocently see drugs in plain view, then the person arrested has very limited recourse to fight those lies.  It is then up the defendant (or more accurately, his attorney), to convince a judge that this cop has lied, and judge’s tend not to share the same skeptical view of the police as the public at large.  Although some judges have shown the courage to find just that, the vast majority will find the cop credible and pass it along to trial.  In most jurisdictions, this is fatal to the defendant’s case as now the cops get to tell their lies to the jury while the prosecutor nods in agreement.  But this isn’t most jurisdictions.  This is Brooklyn.  And Brooklyn juries require cops to prove their story, not just tell it.

Next time on Brooklyn Criminal, The Twenty Minutes Before a Verdict.

Do It Different. Do It Brooklyn.

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This is what our “new” office looks like. A law office is going to go there, floating like an ill-fitting cloud between the horror movie ceiling grid and the grimy saloon floor. The business side of opening and running a law office is not what we are here to talk about. While trying to make this work will occupy much of our time, there are other blogs which do this better than we ever could (Lawyerist.com and myshingle.com). We are here to talk (bluntly) about the cauldron of crime and justice that is Brooklyn, New York.

Brooklyn as a brand is hot right now. From its Nets to its Nine-Nines, music to fashion, Brooklyn is everywhere and everything (and no one recognizes this more than Brooklynites).  But for all the hipster clichés and urban grit amid soaring rent prices, Brooklyn represents a concept, now as much as it has, for a hundred years. Different. Acting different, looking different, being different.  The very driving force of this borough is difference. And that brings us back to our rugged and arguably frightening office.

If there is one thing that is NOT different, it is opening a law office in New York City. Even in Brooklyn, it might surprise you, there have been a few lawyers to have this idea before us. But Biggie and the Beastie Boys didn’t invent rap, they did it differently. Singers sang long before Barbara Streisand, but she did it differently. Jackie Robinson was a difference of historic proportions. Now, let us be clear.  We do not suggest that we will bring the same paradigm shift (or any) to this borough. That isn’t even the point.  The point is that we are excited to take part in the continuing story of this section of this great city.  There are endless possibilities right now. Unmitigated failure. Unbridled success. Pride. Fracture. Bankruptcy. Shark tank. Everything is on the table. But our guiding principle is to do it different. Where this does lead is less important than where it can lead.

Occasionally, on Brooklyn Criminal, the fourth wall will come down and we will check back in on the progress of our venture. But the voice of this blog will be to shine a light into the chasms of the shattered criminal justice system. More specifically, we want to talk about the failures of the NYPD, and the numerous prosecutors who aid and abet those failures while needing to account for massive failures of their own. We want to examine the policing of street crime and the way the police interact with the people who inhabit those streets (guilty, innocent, and the thousand shades of gray between).  We want to expose the prosecutors who unequivocally defend the actions of the police, so often to the detriment of justice and counter to all logic and reason. We want to make those arguments that have failed to make their way into the conversation. We want to have a different conversation.

Rarely has there been a time where America has wanted to talk about what Brooklyn has wanted to talk about for decades. The line between safety because of the police and safety from the police has consistently been on display in East New York, Bed-Stuy and Crown Heights. But now, people in Brooklyn Heights, Battery Park, Allentown, Oklahoma and beyond want to look at that line. We are living in a time where Michael Brown and Serial are the discussion. Crime and punishment is Brooklyn hot.

There have been events in the past which have turned the heat up, but this time it feels different. It feels like people can have a different conversation about the role of the police in our cities. We want to speak openly, not generically. We have the experience to give specific examples of total, crushing injustice, so that we can move beyond general recognition of a ‘broken criminal justice system.’

We want to do it honestly. Do it different. Do it Brooklyn.

Next time on Brooklyn Criminal, Cops Lie: The NYPD v. The People