Sticky Situation

The Associated Press reported the other day that a Vermont man could possibly receive a life sentence for selling 75 gallons of stolen maple syrup. Now, I know that some people take their syrup pretty seriously, but I think even Mrs. Butterworth might be taken a little aback by this news.

Of course, then we learn that this gentleman has six prior felony convictions, and is eligible for a life sentence under the Vermont version of the "three strikes" law. Bear in mind that while this person is technically eligible for this enhanced sentence, it doesn't necessary mean he's going to get it.

Every time someone runs afoul of a three strikes law for something relatively "minor", the press has a field day with it. A little understanding of the purpose and actual application of this law is necessary in order to properly grasp why it exists and how it is used in reality.

New York has two different three strikes laws. One of them is mandatory, and the other is discretionary. A person is considered a mandatory persistent violent felony offender under the following circumstances:

o - The defendant must be currently charged with a "violent felony". The New York State penal law defines certain types of felonies as "violent" felonies. A violent felony carries different penalties than a non-violent felony of the same class. For example, a class D non-violent felony, such as Grand Larceny in the Third Degree, carries a maximum penalty of 2 1/3 - 7 years for a first time felony offender, with a minimum penalty of no jail. A class D violent felony, such as Assault in the Second Degree, carries a maximum penalty of 7 years for a first time felony offender, with a minimum of 2 years (under certain circumstances, the court can go lower, even giving no jail under very restricted circumstances).

o - The defendant must have been previously convicted and sentenced for two other violent felonies. The sentence on the first violent felony must have taken place before the commission of the second, and the sentence on the second must have taken place before the commission of the third. So, for example, if a defendant is arrested and charged with a violent felony, and prior to his conviction and sentence he commits another violent felony and is subsequently convicted of both, he is not yet a mandatory persistent violent felony offender.

o - Both of the prior violent felony convictions must have taken place within 10 years prior to the current violent felony offense. It's extremely important to note, however, that any time the defendant served in jail or prison is tolled, and does not count towards the 10 years. So, for example, if a defendant was convicted of a violent felony offense 20 years ago, served 5 years, then committed another violent felony offense immediately afterwards, served 10 years, and has been out of trouble for 5 years, he falls within the 10 year period because he was incarcerated for 15 of the last 20 years. A defendant shouldn't be rewarded for being in jail.

o - If all of the above criteria are met, the defendant is now a mandatory persistent violent felony offender. If he is convicted of another violent felony offense within the prescribed time period, he faces substantially enhanced penalties. For example, for a class D violent felony offense, the mandatory minimum penalty becomes 12 to life, the maximum being 25 to life.

The theory behind this sentencing scheme is that someone who is persistent in committing violent felonies, within a short time of each other, is a danger to society who needs lifetime supervision to ensure the safety of the public.

As I mentioned above, there is another way to violent New York's three strikes law, and that is as a discretionary persistent felony offender.

The criteria are as follows:

o - The defendant must be charged with any felony.

o - The defendant must have been previously charged and convicted of any other two felonies, with the same requirements about the sentence for each occurring before the commission of the next.

o - The sentences on both prior felonies must have been what are referred to as "upstate" sentences, meaning that the defendant must have been sentenced to prison time, as opposed to local jail time.

o - If all of the above criteria are met, the defendant is now a discretionary persistent felony offender. If convicted of another felony, the prosecutor has the option of seeking a persistent felony offender designation after a conviction, but it is not mandatory for the prosecutor to do this. If the prosecutor attempts to have the defendant determined a persistent felony offender, it is within the sentencing judge's discretion to deem the defendant a persistent felony offender, but again, it is not mandatory. If the prosecutor does seek this finding, and if the judge does agree, the defendant is then sentenced as a persistent felony offender. The mandatory minimum sentence on ANY felony becomes 15 to life, with a maximum sentence of 25 to life.

The theory behind this area of the sentencing law is that career criminals need lifetime supervision to keep them away from the rest of society. It is not something that is sought lightly, and is not used frequently. Personally, I have never sought to designate a defendant as a persistent felony offender, although I have used it as a bargaining chip during plea negotiations. The only case I can think of that I handled where I would have asked for it involved a woman who was charged with three counts of Grand Larceny in the Fourth Degree, class E felonies. She had stolen wallets out of three purses of three different women while shopping. After being arrested, she gave a "closeout" statement where she admitted to approximately 30 other thefts under the same circumstances (often detectives will allow a defendant to admit to additional similar crimes with the promise to not charge those crimes in order to close the cases and bring closure to the victims). This woman had an extremely lengthy rap sheet, stretching back 20 years. Since she was a teenager, she had been arrested approximately 40 times for pickpocketing, usually stealing wallets from women's purses. She had served upstate prison time on four prior occasions, and local jail time on most of the other arrests. She was never out of custody for more than a few months before being arrested again. In all likelihood, she had pickpocketed hundreds, if not thousands, of different women.

I told the defense attorney that if the defendant pled guilty, we would ask for the maximum sentence on each of the three current charges, to run consecutively. This would be a sentence of 6 to 12 years. In the alternative, if she were to go to trial and be convicted, we would seek persistent felony offender status. After some legal proceedings and after a hearing, the judge agreed to sentence the defendant to 4 to 8 years if she pled guilty to the indictment, and she took the deal.

I feel that if this woman had gone to trial and been convicted, I would have been justified in seeking persistent felony offender status. This is a person who, for her entire life, had contributed absolutely nothing to society except aggravation and anguish for her victims. She was a career criminal with absolutely no remorse and no hope for rehabilitation. She was a professional thief who cared not one whit for what her victims went through. Each of her hundreds or thousands of victims had to go through the process of cancelling credit cards, obtaining new identification cards, new social security cards, losing personal items, photos, etc. Not to mention whatever money they happened to have, and most importantly their sense of security and privacy which is extremely difficult to regain.

This is a woman who needs to be supervised for the rest of life for the sake of the rest of society. I have no doubt that when she is released, she will be back to her old ways, and will shortly thereafter become a guest of our correctional facilities once again.

Here Comes The Judge

It's Halloween, time for all the little kiddies to dress up in a costume and try to raise their parents dental bills for another year.

I think it's appropriate to talk about someone else who wears a costume year round. The Judge.

The average person seems to have a tremendous amount of respect for judges. Why is that? Because they wear a black robe?

Vincent Bugliosi has a brilliant saying about judges. Basically, people hate lawyers. People hate politicians. A judge is a politician who is also a lawyer. And yet, people don't hate judges - they love them.

Other states have different methods of selecting judges, but in New York, for the most part, it's by public election. Which is a horrible way of selecting judges.

Why is that, you ask? Publically elected officials are the cornerstone of our democracy, so why wouldn't we want to elect our judges to represent our interests? Ah... There's the catch. Judges are not supposed to represent any particular interests other than serving the law. By forcing judges to campaign and run in a public election, we're placing a burden upon them that influences their impartiality.

Let me give you an example. Let's say a judge is up for re-election in a few weeks. Let's say it's a Supreme Court judge, where the terms are for 14 years, which is pretty good job security, right?

This particular judge is sitting on a terrible criminal case, where the crime charged is horrendous. Perhaps a particularly brutal murder of a child, for example. The press is all over it. The defendant has opted for a bench trial, which means that there will be no jury. The judge is the sole finder of fact in this case. The case goes on for a while, and the day before the election, it's over. The judge now has to make a decision, guilty or no. And for arguments sake, let's say he doesn't believe that, legally, he can find the defendant guilty, for some technical legal reason that would guarantee a reversal on appeal. He knows this. He also knows that the media has been covering this case very closely, that the community is outraged by the crime committed by the defendant. He knows that the defendant is actually likely guilty, but he is bound by the law to dismiss the case on some assumed "technicality".

What does he do?

He has three options.

o - He can do the "right thing" and dismiss the case, thus pretty much guaranteeing that he will be out of a job the next day when the voters get rid of him.

o - He can reserve his decision until after the election, thus giving him a shot at staying on the bench but delaying the inevitable (and keeping the defendant in jail a little longer when, legally, he should be out).

o - He can find the defendant guilty, satisfying the masses and ensuring him another 14 years as a judge.

Which do you think most judges would choose? I honestly believe that many, many judges would choose the third option, and leave it to the appeals courts to reverse the case. I don't think ANY judge in that situation would choose option one, which is an unfortunate commentary on our system of electing judges.

Every judge I know (and I know plenty) is extremely politically connected. Some are truly impartial, but even the ones who try to be fair tend to be swayed a bit when it's nearing election time, which is not the way it's supposed to work.

So how do we fix this? I don't know if there's a perfect system, but I'm familiar with the way New Jersey selects judges. Judges are appointed by the governor. The practice is for the governor to select a republican judge, followed by a democrat, and back and forth. After the judge serves for seven years they are up for tenure. If tenure is granted (and it's not guaranteed), they are in for life, with mandatory retirement at age 70.

This bi-partisan approach, while it still ensures that only politicians become judges, at least eliminates the likelihood of public opinion swaying decisions. Even unpopular decisions, if made honestly and fairly and according to the law, are good for the public, because they ensure that everyone is treated fairly and impartially, which is the goal of our justice system.

Jack McCoy is my personal hero

Well, not exactly.

But I am a huge Law and Order fan and always have been. I remember watching Law and Order back when I was in law school, and predicting the objections that would be made during the various courtroom scenes (and usually getting it right). Of all the various courtroom dramas, L&O is really the only one to consistently get the law right.

Most of the other stuff, though, is ridiculous.

A lot of prospective jurors watch the various law shows and come into the courtroom with a certain expectation, which is unfortunately usually not met. When it really comes right down to it, I'm not Jack McCoy.

While L&O is definitely the most legally accurate of the legal dramas, there are still some glaring inconsistencies with reality that anyone who has ever spent any time in a courtroom immediately recognizes. That's not really a problem, of course, because it's a fictional show and if they tried to accurately portray a real trial each episode would last for 2 weeks.

For those who are curious, here are just a few of the things in the L&O universe that just don't happen in real life:

Judges routinely dismiss murder cases at arraignment after hearing 30 seconds of arguments. No.

Judges routinely suppress evidence without holding a hearing and after hearing 30 seconds of arguments in chambers. Um, no.

Defense attorneys personally drop off motion papers at the District Attorney's office, which cause a panic as soon as the ADA looks at it. Not quite.

Plea conferences are routinely held between the ADA, the defense attorney, and the defendant (and various family members). This is my personal favorite, but this just doesn't happen.

Defense attorneys always show up at the police station right before their client confesses, they waltz into the interrogation room unescorted and snidely put an end to the questioning. Not.

Murder cases get set down for trial the week after the arraignment. Nope. A year after the arraignment, maybe.

The Executive Assistant District Attorney has sex with all of his beautiful female assistants. Well... Not in my office. Although I must say, from what I understand the Jack McCoy character was based on an actual ADA who was with the Manhattan DA's office who was known to have a penchant for his female colleagues.

Still, I do love watching the show, it's one of my guilty pleasures. I also enjoy Law and Order: SVU (Ice-T and Richard Belzer, together at last? How can you not love this show!) and I was a big fan of Law and Order: Trial By Jury before it got cancelled. Law and Order: Criminal Intent - not so good. I'm sorry, but I just can't take Private Pyle seriously as a homicide detective.

Would you trust this man?

If you can't do the time...

Fox News had an interesting blurb today about a woman in Ohio who failed to file income tax returns for five years and faced several misdemeanor charges as well as potential jail time and fines.

The punchline? She only owed $1.16 in taxes.

It's difficult sometimes to take the criminal justice system seriously when you hear about cases like this, where someone is obviously caught in a bind and faces what appears to be an unfair punishment for a minor (if even) infraction.

On a larger scale, this was one of the main arguments against the Rockefeller Drug laws enacted in New York State in May of 1973. The Rockefeller Drug laws, which were severely scaled back in January of this year, were best known for their potential of lifetime imprisonment for drug offenses, which are referred to by many as "non-violent" crimes.

There are a lot of problems with the criticisms of the Rockefeller laws, especially this lifetime imprisonment claim. Just to be clear, only four offenses triggered the potential for a lifetime in jail, and those involved possession or sale of large quantities of a controlled substance. Possession or sale of cocaine in excess of four ounces was punishable as a class A-I felony, which carried a minimum jail sentence of 15 years to life. Whenever you hear a sentence defined in terms of "x to y", that's called an indeterminate sentence. X is the minimum required to be served before a person is eligible for parole, and Y is maximum that can be served. So a sentence of five to fifteen years means that a person is eligible for parole after five years, and can be denied parole until fifteen years are served. Any extra time is there as a potential punishment if there's a parole violation.

The thing that most people don't realize is that practically no one gets convicted of a class A-I drug felony, almost everyone is given the benefit of a plea bargain to some lesser charge. Often, if a defendant cooperates with the DA's office and testifies against other drug dealers, they're given the benefit of a class B felony and lifetime probation. At the very least, they can plead down to a class A-II felony which has a minimum of three years to life (and no one does life on one of these).

An example from one of my own cases, one of the first A-I felony drug sales I prosecuted involved a man who was fairly low on the totem pole, and unfortunately didn't really have any useful to information to share. He was permitted to plead to an A-II, was sentenced to three years to life, and was out of jail in six months. Six months you ask? How's that possible? In New York State, non-violent offenders up to a certain age (I believe it's recently been raised to 46 years old), can enter a program called "shock incarceration", which is similar to the boot camp programs you hear about sometimes. If successful, they can be out of prison in six months. Quite a few inmates take advantage of this program, once again demonstrating the fallacy of this lifetime imprisonment claim.

Sometimes stupidity IS a crime

In the ongoing battle between the good guys and the bad guys, it's always nice to be reminded that the bad guys will always lose because they're just so darn stupid. Thanks to fark.com for pointing to this link about some enterprising drug dealers who took over a house in Memphis and turned it into a crack house.

While marketing is always the toughest part of starting any new business, these Trump wannabes came up with a brilliant plan to get the word out about their new operation. When they were open for business, they'd hang a sign on the house that read "Crack House".

The Donald would be proud.

The People Are Ready

The People are always ready. That's what they taught us in prosecutor school. "The People" being the People of the State of New York, represented by us, some newly minted law school graduates, most in our first real jobs, about to become Assistant District Attorneys.

When I started my career as an ADA several years ago, I was extremely idealistic, excited, and eager to do my part putting the bad guys away. Today, I'm a little less idealistic, a little less excited, and a little less eager, but I still enjoy my job. I've become more realistic over the past few days, more cynical, and more jaded. I don't think that's necessarily a bad thing either, because Judges and defense attorneys (not to mention your more experienced colleagues) don't really take you too seriously when you walk into a courtroom on your first misdemeanor case acting like it's a capital murder. Was I guilty of that at one time? Of course, everyone does it. I think the most important thing I've learned in my time as a prosecutor is temperance. While every case is important, particularly to the victim, not every case is the most important one in the world. If you spend your time trying to save the world with every shoplifting case you won't get very far.

Through this blog I intend to try to share some of my experiences working for the People of the State of New York, thoughts on crime and the justice system in general, and really anything else that comes to mind. I hope you enjoy it.