The One Witness Case; The Burden is Still the Same

     I have seen the destructive power of a single accusation.  An accusation has the ability to take away an individuals freedom, subject them to the control of the government, confine them without the benefit of due process and destroy an individuals reputation amongst their family, friends, co-workers and within the community they live. All too often I hear judges and prosecutors refer to the "nature of the charges" when asking for or imposing bail on defendants.  More times than not, the bail amount is far greater than the defendant would ever be able to come up with, and far greater than what would reasonably be necessary to ensure a defendant's return to court.  This is just one example of the power one can have over another by simply accusing them of doing something illegal.  In many cases, the accusation might be legitimate, and it might be evident that factually, it is true (regardless of whether or not legally, the allegation can be sustained - an issue for another post).
     So what happens when the accused stands trial where there is only 1 witness?  Can the burden of "proof beyond a reasonable doubt" be met by the testimony of just one witness?  The question is a favorite amongst prosecutors to potential jurors; "If I present one witness to you (often the word "victim" will be substituted for "witness") and you believe their testimony to be credible, can you convict the defendant on the word of just that one witness?"  Invariably many jurors will say "no" thereby prompting the prosecution to challenge those jurors for cause. (A practice tip, if the question is raised but you know that there will likely be more than 1 witness you should object as the question does not fairly or accurately reflect the law of the case)  In reality, a case can be won by the prosecution on the testimony of a single witness, and there are many scenarios where a perpetrator commits their crime with no one else but the victim present.  It is still, however, an interesting question regarding what the burden of proof really is when dealing with a case where only 1 witness testifies against the accused.  How does the standard created by our legal system reconcile (or does it) with the biblical standard of Deuteronomy 19:15 "One witness shall not rise against a man concerning any iniquity or any sin that he commits; by the mouth of two or three witnesses the matter shall be established." 
     The burden of proof must remain "beyond a reasonable doubt" regardless of whether there is 1 witness or 100.  The question posed by the prosecution, while typically upheld as proper, is a challenge to the constitutional requirement that the government prove their case "beyond a reasonable doubt".  While the phrase is relatively subjective (even though there is instruction given to the jury as to what the term means), it does indicate that there is a high standard, or heavy burden that must be met before an accused can be convicted.  Looking at this issue from an ordinary citizens perspective, the damage that is done by a simple accusation pales in comparison to the damage that will be done if you are convicted after trial.  Anyone can be accused.  I have seen police officers, prosecutors, defense attorneys, judges, doctors, fathers, mothers, be accused of of all sorts of crimes.  The protections afforded to criminal defendants in our system of justice should never be taken lightly, even if the "nature of the charges" are bad or the person being accused is not someone you would sit at the dinner table with.  Any prosecutor will tell you that a 1 witness case, especially one that involves a terrible allegation, is the toughest to handle.  Any defense attorney will tell you that representing a client in a 1 witness case in which the client is truly innocent is a difficult case to handle.  But the rules do not change or bend.  The system is supposed to be set up to protect the accused from injustice while the prosecution seeks justice.  Without that important check, justice could not be done.  

I welcome your comments or thoughts.

Police DWI Checkpoints

As I was driving home from a friend's house this past Friday I came upon a police DWI checkpoint. I assume it was for DWI (as opposed to a seatbelt checkpoint or vehicle registration checkpoint) as the questions from the Deputy Sheriff went something like this: "I'm Deputy [..] from the Sheriff's Department, we are conducting a sobriety checkpoint, where are you coming from tonight? Where are you headed? Have anything to drink [as he leaned in the window to catch a sniff]? Have a nice night." The interaction took about 10 to 15 seconds and I was on my way. I know, however that others that night, and throughout this last weekend, were not so fortunate. Local news recently announced that law enforcement would beef up their efforts over the St. Patrick's Day weekend to catch drunk drivers by increasing the number of sobriety or DWI checkpoints in and around Rochester including Monroe County. (See video from News 10NBC)

During my time with the District Attorney's Office, I had a number of occasions to participate and in and view first hand these types of checkpoints. I also handled dozens of hearings where individuals charged with a wide range of crimes (from DWI to drug possession) challenged the validity of the checkpoint. Most people coming across a sobriety checkpoint have the same experience I did, 10-15 seconds of inconvenience and then you are on your way. You may not have given it much thought. The checkpoint, however, is a police intrusion in to your Constitutional Fourth Amendment Right to be free of Unreasonable Searches and Seizures. Due to the fact that the police are conducting a warrantless search, and in most instances, an inquiry not based on any reasonable suspicion or probable cause, there are a number of rules that the police must follow in order for their search and any evidence derived therefrom to be admissible against an individual charged with a crime stemming from the stop.

I found a decent explanation of the rights that you have as a citizen being subjected to a police checkpoint. (The site can be viewed by clicking here) You may find the information interesting, especially if you happen to have been nabbed over the weekend by one of these DWI checkpoints.

In addition to the law enforcement goal of catching drunk drivers, DWI checkpoints have a tendency to be a good return on investment for the government. You have probably noticed that most of the checkpoints are set up during times when people are more likely to be out and about drinking (makes sense, right?). If an individual is arrested for a first-time DWI, they are facing a misdemeanor charge that carries with it up to 1 year in jail. It is the equivalent level charge with a petit larceny, assault 3rd or criminal mischief 4th. It carries with it, however, significantly higher financial consequences to the accused, both on the Department of Motor Vehicles end and the court end. The minimum fine on a DWI conviction (non-aggravated) is currently $500 along with a $250 surcharge. In addition, Department of Motor Vehicles will charge a total of $750 over 3 years in order for the convicted person to maintain their driver's license. So it is obvious that the government is generating a significant amount of revenue from DWI charges (when was the last time you heard of special details and overtime for the cops to go after petit larceny charges?). In addition to the court and DMV costs, your car was likely towed. You will have legal costs on top of everything else. The lesson learned is usually that a cab ride from Rochester all the way to Buffalo would have been cheaper than choosing to get behind the wheel after drinking.

If you need help after encountering a DWI checkpoint, give me a call or e-mail. www.rochesterdwihelp.com or 585-232-7747

A jury free from bias; on which planet can you find one

The courtroom is often a place where reality and the ideal world collide. I have personally prosecuted and defended many cases in front of a jury and in every single one jurors are told by one side or the other, or by the judge, that they should use their common sense and everyday decision making abilities to decide what the facts of the case are. But despite this seemingly simple instruction, jurors are bombarded by rules and asked to make promises in an environment where their verdict has consequences far beyond what their "everyday" decisions typically bring. One of the promises potential jurors are asked to make is that they set aside their own personal prejudice or bias and decide the case based solely on the evidence presented. Inevitably each potential juror says "yes". On one occasion when I was prosecuting a murder case I pressed a little harder on the issue and outright asked a potential juror whether or not the fact that the accused was black would have any bearing whatsoever on their ability to be fair and impartial. Surprisingly, the juror responded that it might. As much as I disagree with whatever reason he could have had to take that position, I expressed my appreciation for his candidness and moved on to other questions.
I came across an interesting article in the Wall Street Journal about North Carolina's Racial Justice Act entitled Death-Penalty Racial Law is Tested that describes a challenge to a 1994 murder conviction based on whether or not race played a significant role in the death sentence. New York has effectively banned the death penalty, however the idea behind the challenge poses an interesting question relevant to any criminal conviction and sentence after trial; does race play a role in the decision making process of jurors when deciding to convict a defendant? It is not common that a judge will carefully examine a jury verdict (pursuant to a statute or otherwise. Most jury verdicts are left undisturbed. Out of all the potential jurors I have interviewed, hundreds if not a thousand of them, only one has admitted to racial bias or prejudice. Compare this to my everyday conversations outside of the courtroom where multiple people have admitted they have some racial bias, or have expressed opinions regarding certain racial group's seeming propensity to commit crime. I find it difficult to believe that in the courtroom setting, based on a simple instruction by the judge, that most people can set aside their prejudices, like flicking a switch on and off, for purposes of deciding the fate of a stranger accused of committing a crime.
I do not know that there is a solution to the problem, or at least a quick fix. I believe that things have gotten better over time and that for the most part, many if not most jurors I have dealt with want to do what is right. I have had the privilege of working with prosecutors, police and fellow defense attorneys who want to make sure things are done right (a credit to the community we live in). The fact remains, however, that prejudice and bias will remain a concern with juror decision making. Many potential jurors would never admit in open court to a group of strangers that they harbor prejudice or bias to a certain racial group. And so their answer is a simple and easy "yes" to the question posed. A quick yes is all it normally takes to turn the question and attention regarding an uncomfortable topic away and on to something else. Many judge's allow a very limited time to question potential jurors in criminal cases. I have dealt with cases where the judge allows as little as 10 minutes to address a panel of 21 potential jurors. In many instances our process of selecting a jury is form over substance. If the right questions are asked and answered with a "yes" or "no" we treat the potential juror as a qualified candidate. There is one New York Supreme Court Justice here in Monroe County that gives attorneys all the time they need on their first pass during jury selection. As a result, I have selected, in my opinion, some of the most fair and thoughtful juries in front of him. For that matter, it was in front of that judge that I was able to find the one potential juror that would admit his bias.
It is often said that when your case goes to a jury there is no control over the outcome. Bias and prejudice are not the only issues that both sides of a case worry about. When you pick a jury, you never truly know what you are in for. I have had jurors hang up on the most insignificant detail, miss the entire point completely or pleasantly surprise me as to their level of thoughtfulness.
As continued awareness of issues regarding bias and prejudice are addressed, perhaps confidence in our jury system will continuously improve.

Facing a DWI Charge? Hire a lawyer!

You are a law abiding, working citizen with a job, family, aspirations. You pay your taxes, vote and are a good person. Now, because of a bad decision you are facing a criminal charge. Being charged with Driving While Intoxicated (DWI) is serious, especially to someone like you who has never faced criminal charges before. Your clean record and driving privileges are put in jeopardy. A conviction for DWI is a criminal conviction. You most likely have questions about what happens next and have probably spent quite some time searching online about possible penalties. It is important that you hire an attorney that is experienced with DWI and criminal law, someone who can give you expert guidance and advice. No 2 cases are identical therefore it is important that you contact a lawyer as soon as possible so that you do not make some of the common mistakes that many do when faced with their first DWI.

First of all, you will likely have a date set for arraignment on your charge. The arraignment is the official start of the court process where you are formally advised of the charges against you. It is critical that you appear with an attorney at your arraignment. One of the things you will need an attorney to do for you prior to your arraignment is investigate whether or not you qualify for a Hardship License. At your arraignment the judge will suspend your drivers license. If you qualify for and submit a properly prepared affidavit for a Hardship License you may be granted permission to drive for limited purposes while your case is pending. This application must be done prior to your arraignment. A common mistake people make is appearing at arraignment without an attorney and upon realizing that the situation is more serious than they anticipated, then hire a lawyer. At this point it is often too late to be granted a Hardship License.

After your arraignment your lawyer will have an opportunity to review the case file that the District Attorney has and most importantly will have the ability to speak directly with the Assistant District Attorney and Judge about your case. Some people believe that they can handle their own case. This is a mistake. Even other lawyers who are charged with DWI hire attorneys to represent them. A prosecutor will not typically speak with you directly about your case and this will seriously harm your chances at negotiating a favorable plea bargain. A good DWI attorney will be able to spot issues with your case and use them as leverage to negotiate a plea. If your case must proceed to trial, a prepared DWI lawyer will be able to focus on those issues that are important. DWI is not an easy case for the prosecution to prove and a good attorney will be able to highlight the weaknesses in the case to obtain a favorable result.

Keep in mind that if you are charged with DWI it will not simply go away without doing anything. Your case will ultimately end up at a trial. After motion arguments (arguments based upon written legal arguments challenging the case against you) there will likely be hearings to challenge the stop of your vehicle, observations of the police officer, statements you might have made to police that are being used against you, the results of any breath test administered to you and any violations of your constitutional rights. After the hearings the case is typically set down for a trial. You have a right to have your case tried in front of a jury, but may waive that right and have your case heard before the judge alone. In a jury trial, the facts are determined by the jury and based upon those facts the jury must unanimously decide whether your are guilty or not guilty. In a jury trial the judge instructs on the law. In a bench trial the judge determines what facts are proven and then makes the decision as to whether or not you are guilty or not guilty. An experienced DWI and criminal lawyer will be able to advise you as to what your best option might be. Not every court is the same, each judge has their own bias and nuances that effect their decision making. A good defense attorney who has practiced in front of the judge you are facing will have some insight in to how the particular judge decides cases in front of him or her.

Our firm has extensive experience handling criminal and DWI cases. Visit www.rochesterdwihelp.com for information regarding penalties, pricing and contact info. We are happy to help you get your life back on track. We never charge for a consultation, so let us analyse your case for free! Have a safe and Happy New Year!

Doing Justice, What Every Prosecutor Should Remember

I recently represented a client who was charged with possessing a stolen car. The issue was, however, the car was not truly stolen. Through a set of circumstances that are too involved (and uninteresting) to describe here, we were able to uncover evidence that showed my client did not do it. This information was given to the prosecutor (to remain nameless) and verified to be accurate. The prosecutor said that he would offer a plea to a violation (disorderly conduct) in light of the new evidence. I asked him why he would require a plea when my client is innocent to which the prosecutor responded "I have to get something."

A prosecutor is supposed to be held to a high standard, to do justice. Having to get a conviction simply because someone was arrested is contrary to the District Attorney's ethical obligations as well as duty to represent the People of the State of New York in a fair and neutral manner. Having been a former prosecutor in Monroe County, I understand that for the most part the Assistant District Attorneys responsible for prosecuting criminal cases want to do what they believe is right, however I also understand that many prosecutors are pressured by office policy and politics that question the use of prosecutorial discretion. I do not believe that the prosecutor that said he had to get something from a case that clearly warranted dismissal reflected the official opinion of the office, but I do believe it was a result of the culture that has been created by not giving ADA's and their bureau chiefs the discretion to "do justice."

My client was ultimately cleared by the Grand Jury (after having the case hanging over his head for almost 6 months). It is unfortunate, however, that the prosecutor would not make the right decision and exercise his authority to use discretion.

Expanding the Use of RICO: The Ends do not Justify the Means

The United States Department of Justice along with federal and state law enforcement have breathed new life in to an old statute called the Racketeer Influenced Corrupt Organizations act of 1970, commonly referred to as RICO. On July 7, 2011 a federal jury returned guilty verdicts against 3 individuals who were accused of, among other things, conspiring to engage in a pattern of racketeering activities through participation in a criminal enterprise. The criminal enterprise was an alleged street gang called Chain Gang or Wolf Pack. This trial was the first of its kind in the Western District of New York. The use of RICO against alleged street gangs is becoming more common across the country.

Even if you have never seen the practical application of RICO at trial, you may already associate the term with the Mafia. The statute was inspired by and originally intended for use as a tool to combat organized crime. The traditional criminal enterprise had a definable structure with leadership, ranks and positions. They commonly had a financial purpose, rules for membership and participation, and everyone functioned within their role for a common goal. Keep in mind the context in which the law was written. If you compare the traditional criminal enterprise to the typical "street gang" in Rochester, New York you will find few similarities. Then how is it that a statute designed to combat organized crime can be used against 15, 16 and 17 year old kids? The broadly worded language of the statute combined with generous judicial interpretations of the law have led to what prosecutors have called a "powerful tool" to combat street level drug trafficking and violence. Not only is RICO a powerful tool, but it is a powerful weapon that if not applied in the proper context can lead to kids being wrongfully accused and convicted of something they did not do. Many convictions under RICO carry with them a mandatory life sentence. One act of attempted murder, for example, carries with it up to 25 years in New York State. If multiple defendants are lumped together and held accountable for everyone else's actions, the combined bad acts that make up the "pattern of racketeering activity" drastically increase the potential sentence upon a conviction. Under RICO, the law makes no consideration as to who is more or less responsible.

Some say they do not care. If they rid the streets of drug dealers and violence then it works, right? Not so fast, this "ends justify the means" analysis has brought grave consequences to innocent people throughout history. Just because you might agree with an outcome in one situation does not place a limit on how the government might wield it's "powerful tool" in the next case. The use of RICO can just as easily be targeted in the suburbs as it can in the city. Parents of a child who has fallen in to a lifestyle of addiction might find themselves in a position of watching their loved one be associated with a criminal organization, as the law defines it, namely the individuals who the drugs are being purchased from. Given the loose wording of the law and the expanding interpretation of what qualifies as a criminal enterprise, individuals who might never have made a deliberate choice to participate in a corrupt organization might unwittingly find themselves facing charges more serious than they could have ever imagined. I believe this is the case with many alleged street gang members. RICO is an expansion of the government's ability to sweep more people under one umbrella. Even though each individual can be prosecuted for the wrongs they are accused of, the government can get more bang for their buck with RICO. Every person, however, accused of a crime, has rights fundamental to our way of life. What more powerful weapon can there be to rid our streets of violence than to do away with the constitution? What more powerful tool in the battle against drug trafficking than to do away with the 4th Amendment? The ends do not always justify the means. The means in this case is the broad language and interpretation of RICO. I believe a closer examination of the purpose and language of the statute must take place to avoid wrongful, unfair convictions and sentences.

For an edited version of this post that was published in the Democrat and Chronicle visit http://www.democratandchronicle.com/article/20110717/OPINION02/107170322/RICO-laws-Youths-can-unjustly-severely-punished

Rochester receives "Shout Out" in NY Times article regarding changes in rules regarding judicial campaign contributions.

When I first started at the DA's office I recall being told that we could not engage in political activities such as helping on a campaign or joining a party committee. However the one curious exception was you could give money to a candidate. Within months of starting at the office I found myself attending political fundraisers for candidates I barely knew. The reason, everyone was doing it and it seemed like for some reason, as a lawyer you had to. With a number of years under my belt and now working in the private sector I have more of an understanding as to why. It is because everyone is doing it and it seems like as a lawyer, you have to.

The judiciary is not insulated from the political process nor the political pressures inherent in any elected position. Whether you are running for a 4 year term as a Local Court Judge or a 14 year term as a State Supreme Court Judge there will be "help" offered and received to win that coveted spot. Once you are "helped" there is a perceived and in some instances an expressed duty owed to those who were so kind as to believe in you.

NY Times

You gotta' play it safe around elect-ri-ci-teee!

An 18-year-old Massachusetts high school senior who injured himself by--wait for it--accepting a dare from a shop-class buddy to attach electrical leads to his nipples, is now suing the school district for negligence. The suit claims, among other things, that the shop teacher, a certified teacher and master electrician, failed to warn students of the dangers posed by electricity. [Left: Cell phone photo of the incident.]

Ridiculous as it sounds so far, there is apparently a bit more to the story, at least according to the court papers: there was some indication by other students that the teacher was himself involved in the dare, offering the boy a Mountain Dew. The student claimed that it was not the teacher, but a classmate who made the dare and offered the soda. There were also allegations that the teacher had previously told students that the electrical circuits used in the class were unable to cause harmful or fatal shocks.

Not saying that the teacher did it, but I can completely imagine a teacher telling an 18-year-old, "go ahead, moron, attach the alligator clips to your nipples and see what happens; I'll buy you a Coke if you survive." Unfortunately, I can also completely imagine the 18-year-old calling the teacher's bluff.

The teacher has resigned. Odds are the District will settle.

The moral of the story:

(1) Louie the Lightening Bug was right.

(2) School administrators: some kids are dumb, and some parents are litigious. Be prepared.

(3) I say this as a former high-school teacher: teachers probably need to be a bit more cognizant that it's all too easy for students or parents to turn a teacher's stray words, or harmless jokes, into fodder for a lawsuit.

Boston Herald story here.

If your school has a policy like this one, please, oh, please give me a call

In what appears to be a hilariously misguided attempt at affirmative action, a Mississippi middle school had what I gather was a longstanding policy of requiring that class presidents be white, and class vice-presidents, or other class officers, be black. The mother of an Italian-Native American student took issue with the policy, wondering whether her child qualified for either post. Gawker has the story. School administrators, here's a bit of free legal advice: don't do this. (HT: ATL)

No-Fault Divorce in New York

Earlier this month, the Governor signed a bill providing for "no fault" divorce in New York. The new law goes into effect October 12, 2010 and applies to actions for divorce commenced on or after that date.

What does all this mean? Currently, New York law permits divorce where the spouse suing for divorce pleads specific grounds, which are limited to: "cruel and inhuman treatment", abandonment for one year or more, imprisonment for three years or more, or adultery; or where the couple have a valid separation agreement or decree and have lived apart for one year or longer.

The new law, which amends section 170 (among others) of the Domestic Relations Law, allows divorce where one spouse pleads that, "The relationship between husband and wife has broken down irretrievably for a period of at least six months." Or, in other words, so long as one spouse wants the divorce, he or she can get it without having to give any specific reason.

That said, the law requires all financial issues, including distribution of property, spousal and child support, and attorney's fees and costs, as well as child custody and visitation, to be worked out before the court will make the divorce final.