I previously apologized without naming the person, and offered to apologize to him by name upon request.
Today I received a letter making such request, and I will now do so. I hereby apologize to Joseph M. Ahearn, Esq., of the Rensselaer County District Attorney's office.
In a post a few days ago I named him and made some inappropriate remarks about him. After he complained, I reviewed those remarks and realized I had gone too far.
As an attorney, I should handle such problems professionally, and posting a personal attack on this blog was unprofessional of me. I regret doing so.
Friday, April 07, 2006
Criminal Injustice
Recent experience has prompted some reflection about the criminal process. This is sometimes called the criminal justice system, but the word justice is out of place.
What are some of the problems that stand out, in the eyes of this criminal defense lawyer?
In no particular order:
1. A systemic disregard for the rights of the accused. There are so many cases (and I'll probably discuss that below), and so many of us inside the system are so busy with all these cases, that the defendant can easily become just a number in our eyes. That's not right. These are flesh-and-blood people, with families who need them. It is not only prosecutors who become afflicted with this regard. I see it in defense lawyers, judges, police, and others involved. I even see it in myself at times.
2. Judicial bias. I could probably do a whole post just on this topic, but I'll mention it briefly here. In many courts, the judges spend a lot more time with the prosecutors and the local police than with defense lawyers or defendants. The typical local court is in the same building as the police station. The courtroom is guarded by local police. The judge sees the local police all the time. The prosecutor assigned to that court is there for every criminal session (but might not be there on traffic night). Even the most local of defense lawyers doesn't see the judge as much as the prosecutor. And the defendants are usually there for their first time. It would be inhuman for a judge not to begin to identify with the people that are with them all the time, guarding them, etc. We are fortunate that many judges are able to rise above this most of the time, but most show some vulnerability to this from time to time.
A great example of this is the initial bail hearing. I just had this on a case. I asked for release on recognizance (client would be let go without posting bail). The prosecutor (a particularly pleasant individual, by the way), said he would agree to $5000 bail if the defendant waived the preliminary hearing.
The purpose of bail is to ensure that the defendant appears at future court dates. If he doesn't appear, the bail money would be forfeited. If the prosecutor believes $5000 bail is adequate for that purpose, why should the defense need to waive a preliminary hearing?
Why is the prosecutor's opinion even relevant to the question of bail? The factors the Court is supposed to consider are listed in CPL 510.30. The prosecutor's opinion is not in there. The defendant's willingness to waive the preliminary hearing (an important procedural right) is also not in there.
Despite all of that, judges will often ask the DA for their bail recommendation. Not, by the way, their argument as to the factors underlying the bail decision, but simply for their position. The intrepid (or foolish) defense lawyer might then argue why the underlying factors suggest that the defendant should not have to post bail. On more than one occasion I've seen a local judge make facial expressions suggesting that such argument is not welcome. And then they'll set bail at what the DA recommended, making no findings of fact.
The real purpose of this process is to intimidate the defendant - first into waiving the preliminary hearing, and second into taking a deal. This is especially so if the defendant can't make bail. Now he/she is sitting in jail waiting for trial. In some cases the defendant will spend enough time in jail waiting for trial they'll end up taking a deal with time served. At that point, if there's any risk of conviction at all, the somewhat rational thing to do is take the deal. Even if the defendant makes bail, that $5000 or $10000 sitting there is money they need for their everyday existence. Most defendants are poor, and bail money is not easy to come by.
I should write more on this general topic of criminal injustice, but I'm running out of steam. More later perhaps.
What are some of the problems that stand out, in the eyes of this criminal defense lawyer?
In no particular order:
1. A systemic disregard for the rights of the accused. There are so many cases (and I'll probably discuss that below), and so many of us inside the system are so busy with all these cases, that the defendant can easily become just a number in our eyes. That's not right. These are flesh-and-blood people, with families who need them. It is not only prosecutors who become afflicted with this regard. I see it in defense lawyers, judges, police, and others involved. I even see it in myself at times.
2. Judicial bias. I could probably do a whole post just on this topic, but I'll mention it briefly here. In many courts, the judges spend a lot more time with the prosecutors and the local police than with defense lawyers or defendants. The typical local court is in the same building as the police station. The courtroom is guarded by local police. The judge sees the local police all the time. The prosecutor assigned to that court is there for every criminal session (but might not be there on traffic night). Even the most local of defense lawyers doesn't see the judge as much as the prosecutor. And the defendants are usually there for their first time. It would be inhuman for a judge not to begin to identify with the people that are with them all the time, guarding them, etc. We are fortunate that many judges are able to rise above this most of the time, but most show some vulnerability to this from time to time.
A great example of this is the initial bail hearing. I just had this on a case. I asked for release on recognizance (client would be let go without posting bail). The prosecutor (a particularly pleasant individual, by the way), said he would agree to $5000 bail if the defendant waived the preliminary hearing.
The purpose of bail is to ensure that the defendant appears at future court dates. If he doesn't appear, the bail money would be forfeited. If the prosecutor believes $5000 bail is adequate for that purpose, why should the defense need to waive a preliminary hearing?
Why is the prosecutor's opinion even relevant to the question of bail? The factors the Court is supposed to consider are listed in CPL 510.30. The prosecutor's opinion is not in there. The defendant's willingness to waive the preliminary hearing (an important procedural right) is also not in there.
Despite all of that, judges will often ask the DA for their bail recommendation. Not, by the way, their argument as to the factors underlying the bail decision, but simply for their position. The intrepid (or foolish) defense lawyer might then argue why the underlying factors suggest that the defendant should not have to post bail. On more than one occasion I've seen a local judge make facial expressions suggesting that such argument is not welcome. And then they'll set bail at what the DA recommended, making no findings of fact.
The real purpose of this process is to intimidate the defendant - first into waiving the preliminary hearing, and second into taking a deal. This is especially so if the defendant can't make bail. Now he/she is sitting in jail waiting for trial. In some cases the defendant will spend enough time in jail waiting for trial they'll end up taking a deal with time served. At that point, if there's any risk of conviction at all, the somewhat rational thing to do is take the deal. Even if the defendant makes bail, that $5000 or $10000 sitting there is money they need for their everyday existence. Most defendants are poor, and bail money is not easy to come by.
I should write more on this general topic of criminal injustice, but I'm running out of steam. More later perhaps.
Wednesday, April 05, 2006
Apology
I made an inappropriate post the other day and I now wish to apologize for it.
I named the particular prosecutor involved and I went over the top with my criticism. While I still feel strongly that the factual issues underlying what I said were fair, I should not have named the particular prosecutor, and some of my comments were inappropriate. I have modified the post to take out the inappropriate comments, and removed the name of that prosecutor, both from that post and a subsequent post.
I have not named him here, but I will apologize to him personally by letter, and if he requests that I apologize to him by name on my blog, I will do so.
I named the particular prosecutor involved and I went over the top with my criticism. While I still feel strongly that the factual issues underlying what I said were fair, I should not have named the particular prosecutor, and some of my comments were inappropriate. I have modified the post to take out the inappropriate comments, and removed the name of that prosecutor, both from that post and a subsequent post.
I have not named him here, but I will apologize to him personally by letter, and if he requests that I apologize to him by name on my blog, I will do so.
Tuesday, April 04, 2006
Something's fishy in Rensselaer County
[Note: This post has been edited slightly in light of a complaint that was made.]
I previously posted about a new criminal defense case I've got in Rensselaer County. Today we went before the town court judge. I had applied for bail or release. Bail means someone has to put money up to get the client out -- kinda like ransom. :-) Release means the client gets out without having to post bail.
The Rensselaer DA's office opposed our bail application. Keep in mind that the supposed reason for bail is to make sure the defendant appears in Court. In reality prosecutors will sometimes seek to keep the defendant in jail because that encourages the defendant to take a deal. Jail can be rather intimidating, even (or perhaps especially) to an innocent defendant. Nothing in their papers or their remarks said anything about why my client might be guilty, or why he might be a flight risk.
No, their argument was that, #1, the Court doesn't have jurisdiction to set bail or order release, because he hasn't appeared in the Court yet. It's a nice Catch-22 argument. The DA is keeping him in Chicago, so he can't appear, so the judge can't set bail. Of course, the statute (CPL 530.10) doesn't say anything anywhere about a judge not having jurisdiction in such a situation. It specifically authorizes a judge to order not only release, but "prospective release". What else could that mean? The DA didn't point to any statutes or cases. They didn't explain how a judge can have jurisdiction to issue a warrant that can keep a guy in jail for 30 days, but somehow lacks jurisdiction to release the guy. But the judge went with their argument anyway. At least the judge was pleasant. He really is a nice guy, so even when he rules against you, you just can't dislike him.
But that was not the most interesting part of this experience. It was the other issue raised, only on oral argument (i.e. not in written papers but what the ADA there said). The DA has applied to the County Court Judge for appointment of a special prosecutor.
Huh?
My client is from western Massachusetts. He happened to work for a store in Rensselaer County for a few months. The charge is a relatively minor felony involving allegedly stealing money from that store, which is owned by a Rochester-based corporation.
So what can there be about this case that would lead to the need for a special prosecutor?
Is there a real conflict? I.e. is someone in the DA's office related to my client? Not likely. Are they related to a witness. Maybe, but that still seems unlikely, and there would be a lot more special prosecutors if that were the way things usually went.
The ADA who was there (a generally pleasant fellow, by the way, though not happy with me this evening), got particularly perturbed when I restated [another ADA's] remark about the DA's office not being "travel agents", in explaining why it's taken so long to get my client here from Illinois. Could that have something to do with the request for a special prosecutor?
[Update: I now know that the reason for the application for a special prosecutor is related to the complaint that was made about my blog posts. A special prosecutor has been appointed.]
But even if it does, why are they opposing bail on a minor felony case where the usual plea bargain involves no jail time and my client has already done 30 days?
Remember that my client was arrested on March 8th near Chicago and has not had any opportunity to have his case reviewed by a judge because the State Police and Rensselaer DA have deliberately delayed bringing him here from Chicago. We argued this on April 4th, so it's been close to 30 days now.
You see, there's this basic principle I have in my head that if you're arrested you're supposed to get some chance to have the facts of your case heard by a judge so the judge can make sure there's some evidence to support the case going forward, and so you'll have the opportunity to get out of jail while the case is pending. I don't know. It's something like innocent until proven guilty. Or due process. I think I picked it up in elementary school, but then again, I did go to a public school so maybe I got it wrong.
At this point it seems like my client would get fairer process in Guantanamo. Maybe we should nickname Rensselaer County as Ritmo. Won't work. Ritmo is the Spanish word for rhythm.
The other minor interesting thing is that the DA now says my client will be here tomorrow (April 5th). The date moved up 10 days from what they first said it would be. Could it be that I actually had an effect? Probably not. Illinois probably called and told them to come get him or else they'd let him go after 30 days. But I'd like to think it was my doing.
One note of reflection. It seems like I haven't been a defense lawyer long enough. I still care about my client. He's got two young daughters, not to mention a wife, parents, a sick grandmother - maybe even a dog or a cat or something. But since I have two young(er) daughters, I relate to being kept from them, and to the daughters wondering where daddy is. I haven't been a defense lawyer long enough because I still see my client and his family as people.
We don't get passionate about all our cases. Believe it or not, some of our clients are actually guilty. Really!! And usually the prosecution will have an easy time proving their case. So most of the time we're just trying to minimize the consequences and get our client the best deal we can.
But sometimes our clients are innocent. Sometimes we have a fighting chance. Sometimes we believe.
And that's why I'm having trouble sleeping tonight. I don't know much about the facts of the case yet, but I'm starting to get the strong feeling this client is innocent, and he's getting railroaded by our criminal process. I won't call it the "criminal justice" system because I've done this long enough to know that justice has nothing to do with it.
I previously posted about a new criminal defense case I've got in Rensselaer County. Today we went before the town court judge. I had applied for bail or release. Bail means someone has to put money up to get the client out -- kinda like ransom. :-) Release means the client gets out without having to post bail.
The Rensselaer DA's office opposed our bail application. Keep in mind that the supposed reason for bail is to make sure the defendant appears in Court. In reality prosecutors will sometimes seek to keep the defendant in jail because that encourages the defendant to take a deal. Jail can be rather intimidating, even (or perhaps especially) to an innocent defendant. Nothing in their papers or their remarks said anything about why my client might be guilty, or why he might be a flight risk.
No, their argument was that, #1, the Court doesn't have jurisdiction to set bail or order release, because he hasn't appeared in the Court yet. It's a nice Catch-22 argument. The DA is keeping him in Chicago, so he can't appear, so the judge can't set bail. Of course, the statute (CPL 530.10) doesn't say anything anywhere about a judge not having jurisdiction in such a situation. It specifically authorizes a judge to order not only release, but "prospective release". What else could that mean? The DA didn't point to any statutes or cases. They didn't explain how a judge can have jurisdiction to issue a warrant that can keep a guy in jail for 30 days, but somehow lacks jurisdiction to release the guy. But the judge went with their argument anyway. At least the judge was pleasant. He really is a nice guy, so even when he rules against you, you just can't dislike him.
But that was not the most interesting part of this experience. It was the other issue raised, only on oral argument (i.e. not in written papers but what the ADA there said). The DA has applied to the County Court Judge for appointment of a special prosecutor.
Huh?
My client is from western Massachusetts. He happened to work for a store in Rensselaer County for a few months. The charge is a relatively minor felony involving allegedly stealing money from that store, which is owned by a Rochester-based corporation.
So what can there be about this case that would lead to the need for a special prosecutor?
Is there a real conflict? I.e. is someone in the DA's office related to my client? Not likely. Are they related to a witness. Maybe, but that still seems unlikely, and there would be a lot more special prosecutors if that were the way things usually went.
The ADA who was there (a generally pleasant fellow, by the way, though not happy with me this evening), got particularly perturbed when I restated [another ADA's] remark about the DA's office not being "travel agents", in explaining why it's taken so long to get my client here from Illinois. Could that have something to do with the request for a special prosecutor?
[Update: I now know that the reason for the application for a special prosecutor is related to the complaint that was made about my blog posts. A special prosecutor has been appointed.]
But even if it does, why are they opposing bail on a minor felony case where the usual plea bargain involves no jail time and my client has already done 30 days?
Remember that my client was arrested on March 8th near Chicago and has not had any opportunity to have his case reviewed by a judge because the State Police and Rensselaer DA have deliberately delayed bringing him here from Chicago. We argued this on April 4th, so it's been close to 30 days now.
You see, there's this basic principle I have in my head that if you're arrested you're supposed to get some chance to have the facts of your case heard by a judge so the judge can make sure there's some evidence to support the case going forward, and so you'll have the opportunity to get out of jail while the case is pending. I don't know. It's something like innocent until proven guilty. Or due process. I think I picked it up in elementary school, but then again, I did go to a public school so maybe I got it wrong.
At this point it seems like my client would get fairer process in Guantanamo. Maybe we should nickname Rensselaer County as Ritmo. Won't work. Ritmo is the Spanish word for rhythm.
The other minor interesting thing is that the DA now says my client will be here tomorrow (April 5th). The date moved up 10 days from what they first said it would be. Could it be that I actually had an effect? Probably not. Illinois probably called and told them to come get him or else they'd let him go after 30 days. But I'd like to think it was my doing.
One note of reflection. It seems like I haven't been a defense lawyer long enough. I still care about my client. He's got two young daughters, not to mention a wife, parents, a sick grandmother - maybe even a dog or a cat or something. But since I have two young(er) daughters, I relate to being kept from them, and to the daughters wondering where daddy is. I haven't been a defense lawyer long enough because I still see my client and his family as people.
We don't get passionate about all our cases. Believe it or not, some of our clients are actually guilty. Really!! And usually the prosecution will have an easy time proving their case. So most of the time we're just trying to minimize the consequences and get our client the best deal we can.
But sometimes our clients are innocent. Sometimes we have a fighting chance. Sometimes we believe.
And that's why I'm having trouble sleeping tonight. I don't know much about the facts of the case yet, but I'm starting to get the strong feeling this client is innocent, and he's getting railroaded by our criminal process. I won't call it the "criminal justice" system because I've done this long enough to know that justice has nothing to do with it.
Sunday, April 02, 2006
Lessons in lawyer advertising
Going through my bills for the year so I'll have all my expenses down for taxes.
Noticed a bill for $400 for "Prof Internet Directory". Figured out it's for a directory of attorneys called "AttorneyFind" dot com. I remembered it once I saw it. I paid $100 each for 4 listings (personal injury, drunk driving, etc.).
Well, I reviewed my web traffic and found that since 1/1/2006, I've had one (1) visitor to my site from that directory. By comparison I had 28 from DUI.com, which costs about the same.
I notified them by fax, e-mail and letter that I want to be removed from their directory and that they should not charge my card again.
Perils of advertising. Some things work. Some don't. Nice thing about the web is you can tell which listings work.
Noticed a bill for $400 for "Prof Internet Directory". Figured out it's for a directory of attorneys called "AttorneyFind" dot com. I remembered it once I saw it. I paid $100 each for 4 listings (personal injury, drunk driving, etc.).
Well, I reviewed my web traffic and found that since 1/1/2006, I've had one (1) visitor to my site from that directory. By comparison I had 28 from DUI.com, which costs about the same.
I notified them by fax, e-mail and letter that I want to be removed from their directory and that they should not charge my card again.
Perils of advertising. Some things work. Some don't. Nice thing about the web is you can tell which listings work.
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