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.


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.

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