Manhattan District Attorney Cyrus Vance Jr. wants electronic access to disciplinary records of officers and police investigative reports that prosecutors contend they need to catch bad arrests earlier.
The Manhattan district attorney’s office is battling with the New York Police Department over electronic access to disciplinary records of officers and investigative reports that prosecutors contend they need to catch bad arrests earlier, the New York Times reports. The level of access to police records that prosecutors are seeking would fundamentally change the flow of information between the police and prosecutors, upending decades of practice. The district attorney’s push is the latest front in an effort to break through the wall of secrecy surrounding police discipline. Calls for records to be made public picked up momentum after the department refused to release misconduct records of Daniel Pantaleo, the officer who placed Eric Garner in a fatal chokehold during a 2014 confrontation. A judge later ordered a summary of the records be made public.
This time, the pressure is coming not from civil libertarians or the news media, but from Cyrus Vance Jr., the state’s most prominent district attorney. Public defenders have long argued that the earlier prosecutors show evidence to the defense, including evidence about the credibility of police officers and witnesses, the easier it is to weed out bad cases and prevent wrongful prosecutions. Strong cases lead to guilty pleas, while weak ones fall apart before the accused has spent a long time in jail, they say. Vance, whose office was once notorious among defense lawyers for waiting until the last moment to disclose evidence, has begun handing it over at arraignment in nonviolent cases when there are no civilian witnesses. Now Vance contends the same principle should extend to the flow of evidence from police to prosecutors. Vance asked the police for a searchable database of investigative reports of crimes, including detectives’ memos on evidence and statements by witnesses and victims.
Frank Fina faces an administrative hearing this week on charges of violating ethical rules for lawyers in his prosecution of Penn State’s former president, Graham Spanier, and two senior university aides.
For three years, prosecutor Frank Fina helped win prison terms for child molester Jerry Sandusky and the top Pennsylvania State University officials who covered up his crimes. Now, it is Fina who is being pursued, reports Philly.com. He faces an administrative hearing this week on charges of violating ethical rules for lawyers in his prosecution of Penn State’s former president, Graham Spanier, and two senior university aides. He is accused of wrongfully subpoenaing a top lawyer for the university to testify about her conversations with Spanier and his aides.
The counsel for the state legal disciplinary board said that former Penn State general counsel Cynthia Baldwin was representing the three men and that Fina had wrongly sought investigative information that she had learned in that role. This, the board contends, stripped the men of their attorney-client privilege. Fina says Baldwin was representing the university at the time, not Spanier and aides Gary Schultz and Tim Curley. Baldwin agrees with Fina. They say the men have only themselves to blame for their legal mess by lying repeatedly to Baldwin about what they knew of Sandusky’s wrongdoing. Fina could face penalties that include a reprimand or the loss of his law license. Fina, 52, was part of the team that convicted Sandusky, the former assistant football coach at Penn State, who is serving at least 30 years in prison for molesting 10 boys.
George Soros has spent millions of dollars trying to elect district attorneys who agree with his brand of criminal justice reform, but some of his candidates have suffered blowout losses in recent elections, including Tuesday in California,
George Soros has spent millions of dollars trying to elect district attorneys who agree with his brand of criminal justice reform, but some of his candidates have suffered blowout losses in recent elections, including Tuesday in California, reports the San Diego Union-Tribune. The question is, are these mere speed bumps or is the political pendulum swinging against Soros and his progressive coalition? San Diego District Attorney Summer Stephan won in a landslide over Deputy Public Defender Geneviéve Jones-Wright in what may have been the marquee establishment vs. Soros matchup. In Sacramento County, District Attorney Anne Marie Schubert defeated Noah Phillips, a deputy prosecutor who had Soros’ backing, by few touchdowns. Alameda County District Attorney Nancy O’Malley overwhelmed civil rights attorney Pamela Price, also backed by Soros’ forces.
In Contra Costa County, the roles were reversed. Appointed District Attorney Diana Becton, a former judge, was backed by the Soros coalition against veteran prosecutor Paul Graves. Like DAs in other counties, Graves had backing from police and deputy district attorney groups and some of the local political establishment. Becton won by eight points. With variations, Soros-backed candidates share a general platform: establish independent reviews of shootings by police officers, reduce incarcerations for minor crimes through diversion programs, and lower or get rid of cash bail for low-level crimes. The reform movement had other setbacks, with its candidates losing in Jefferson County, Co., last year and in Oregon’s Washington County on May 15. In Oregon, prosecutor Kevin Barton defeated defense attorney Max Wall. Barton had much of the establishment behind him and Wall had big outside funding from a committee run by a Soros consultant. Despite being outspent nearly 2 to 1, Barton won with around 67 percent of the vote.
Billionaire George Soros headlines a consortium of private funders, the American Civil Liberties Union, other social justice groups and Democratic activists targeting four of the 56 DA jobs up for election on June 5.
In California, wealthy donors are spending millions of dollars to back would-be prosecutors who want to reduce incarceration, crack down on police misconduct and revamp a bail system that may unfairly imprison poor people before trial, reports the Los Angeles Times and The Marshall Project. The effort is part of a years-long campaign by liberal groups to reshape the justice system. Billionaire George Soros headlines a consortium of private funders, the American Civil Liberties Union, other social justice groups and Democratic activists targeting four of the 56 DA jobs up for election on June 5. The challengers have matched or surpassed the millions of dollars, largely from police, prosecutors and local business, flowing to incumbents.
“For decades, the only real question about prosecutor elections was: Are they pernicious or are they just irrelevant?” said Stanford Law Prof. David Sklansky. “For years, the races tended to focus on character issues rather than policies…. So it’s really quite a change.” In San Diego, the groups back a public defender who spent her career trying to keep the accused out of jail. In Sacramento and Alameda, they finance candidates taking on entrenched incumbents. In Contra Costa, they support an ex-judge appointed district attorney who faces a challenge from a career prosecutor. Soros, whose California spending has topped $2.7 million, has spent $16 million in 17 races in other states since 2014. His favored candidates won in 13. The changes invoke outrage from police and prosecutors. Michele Hanisee, head of Los Angeles County prosecutors union, issued a call for donations to counter Soros’ money in San Diego. She said Soros and the ACLU ask prosecutors to “pick and choose” which laws they enforce. “It is a very, very slippery slope when you are asking the elected official to ignore laws they have sworn to uphold,” she said.
A white-collar defense attorney explains how “pro-active” engagement with prosecutors has helped his clients avoid going to trial or at least present evidence that could change a case’s outcome. He calls it “trying a case in a prosecutor’s office.”
Several years ago, a philatelist was being investigated for securities fraud based on an alleged false valuation of collectible stamps that were used as collateral for investments.
At a meeting with a formidable team of agents, prosecutors and Securities and Exchange Commission litigators, the client made a presentation describing how these stamps are valued, auctioned, privately sold, etc. The presentation included exhibits from auction house catalogues, completed sales and commercial offerings for sale and purchase.
Weeks passed while the government digested the materials.
Eventually, the government team decided that the art of valuing collectible stamps was too subjective to be amenable to a “beyond a reasonable doubt” analysis and did not bring the prosecution.
That points to an unassailable truth. The best result possible for the target of a criminal investigation is never to be charged with a crime.
Law is like medicine in that regard: The earlier you are involved in a case, the more opportunities exist to cure or restrain the spread of the disease.
When and how much engagement is appropriate depends on the particular circumstances of each matter. There is no one-size-fits-all strategy.
As soon as the authorities are aware that your client is represented by counsel all attempts to contact him, get statements and physical evidence directly will cease. Montego v. Louisiana holds that all contact by the authorities with a person must cease upon his invocation of his desire to be represented by counsel.
Not only does this eliminate the potential of harmful statements being secured, it also protects the client from unwelcome and unpleasant encounters with the authorities.
Once a relationship is established with the prosecution, a request to be allowed to present evidence to the grand jury should be instituted.
Department of Justice regulations require that a prosecutor put substantial evidence which negates guilt before a grand jury. [DOJ Manual §9-11, 122(a) 9-268 (1992-1 Supp.)] In New York, a demand to be a witness before a grand jury when “a person is being or is about to be or has been submitted to a grand jury…” must be honored [CPLR 190.50 5(a)].
This will result in learning whether or not a grand jury is considering the matter and if so an opportunity to influence its outcome. Whether or not one actually makes such a presentation is again fact-specific.
Since grand juries are totally controlled by the prosecutor, a determination always has to depend on the nature and quality of the evidence, and whether it is better to be withheld and used later, or if it could have an effect on the proceeding.
In addition to the grand jury aspect of the investigation, a proactive relationship with the prosecution can result in making an attorney’s proffer to wit: meeting with them and putting forth evidence that will benefit the client. The proffer is pursuant to an agreement that nothing put forth by the attorney can be used as evidence by the prosecution in their case.
However, leads from such information can be used to find additional evidence. Therefore, it is essential that only exculpatory information be transmitted.
Such engagement during the investigative stage is akin to “trying the case in the prosecutor’s office.” Supplying them with exculpatory evidence creates a broader understanding of the facts, and increases the prosecution’s awareness of the difficulties they will have in proving their case as well as making them aware of any mitigating circumstances that are favorable to the client.
Another of our clients was arrested by a police officer who saw a gun protruding from under his jacket as he was walking down the street. After stopping him and determining that he did not have a license to carry a weapon he was arrested. The DA believed this was a slam dunk for conviction.
But after agreeing to our request to allow the defendant to testify in the grand jury no charges were brought. The client testified that he had been visiting an apartment building he owned where he found the gun in a garbage can and was on his way to the police precinct to turn it in, when stopped by the police officer.
After hearing his testimony, the grand jury refused to indict.
Since this testimony would have been the same at trial there was nothing to lose by putting it before the grand jury.
Proactive engagement during the investigative stage requires balancing whether or not the information put before prosecutors is better saved for trial. This is often determined by whether you believe that advance notice of the information will give the prosecution time to develop a way to ameliorate the effectiveness of it.
For example, making a potential witness available to the prosecution will give them time to investigate that person as well as lock them into statements. On the other hand, if the statements they make will be the same at trial and an investigation will be favorable to the client, this may have a salutary effect.
In the event charges are brought (often less than originally intended), one can usually work out a surrender of the client to the authorities. This avoids the embarrassment of a public arrest at home or the work place. A voluntary surrender also will be considered by the Court as evidence that the client has shown his intent to abide by the Court’s orders and is not a bail risk.
Title 18 §3142(9) 3A includes the factors to be considered for bail, and there are conditions of release…” that will reasonably assume the appearance of the person…” the “…record concerning appearance with court proceedings;”.
This is typically reflected in low bail as part of the surrender package. In addition to decreasing the amount of time the client spends incarcerated upon arrest, it can also affect geographic, economic and other terms and conditions of bail.
By interacting with the prosecution during the investigation we often receive early discovery.
In addition to being able to rebut and/or explain such information to the investigators, the building blocks to a trial defense including finding fact witnesses, documents and expert testimony can begin.
Another positive affect of pre-arrest negotiations is discovery of the prosecutor’s case at the earliest time. This allows for informed decision making i.e. whether or not to accept a plea deal or move forward to trial is always best decided early.
A better deal is typically available early in the process.
Knowing the prosecutor’s case helps determine whether the matter can be put to trial when balancing it against the plea offer. Even when the prosecution decides to move forward with charges, they will often offer a much more reasonable resolution based on the information they received from the defense.
In most white collar prosecutions, the defendant’s state of mind is a relevant factor.
In Elonis v. United States (2018) Chief Justice John Roberts wrote that” the basic principle that ‘wrongdoing must be conscious to be criminal’ and that a defendant must be “blameworthy in mind before he can be found guilty.”
After Elonis, it remains “the general rule” that evidence that a defendant acted with “a guilty mind” is “a necessary element in the indictment and proof of every crime” even if a statute omits that element. [Source: The Supreme Court on Mens Rea: 2008-2015 by Paul Yarkin, Jordan Richardson and John Michael Seibler.]
Usually the government uses circumstantial evidence to support a mens rea requirement. If an attorney senses that the prosecution is having trouble with this issue, it may be wise to have the client submit to a private polygraph test.
The attorney can then determine whether or not to use the result based on the polygrapher’s report. While such evidence is not admissible, a favorable result often convinces the investigators that the client was not acting with bad motives.
Jeffrey C. Hoffman
This results in a more critical re-evaluation of the evidence supporting the case and often results in a better disposition.
In short, “early diagnosis and treatment” will result in the best outcome.
Jeffrey C. Hoffman is Counsel at Windels Marx, a Manhattan-based law firm. He has been involved in a large number of white collar cases, including banking fraud, money laundering and Medicare/Medicaid fraud. Readers’ comments are welcome.
The chief prosecutor in Phoenix, Maricopa County Attorney Bill Montgomery, says he will control whether police records are released to the public or withheld. He warns of financial consequences for police departments that don’t comply.
The chief prosecutor in Phoenix, Maricopa County Attorney Bill Montgomery, says he will control whether police records are released to the public or withheld. He warns of financial consequences for police departments that don’t comply, the Arizona Republic reports. A letter from Montgomery to police agencies makes no direct mention that long-standing Arizona law and court rulings hold police records to be presumed public. It spells out a process to limit release of video evidence only for law-enforcement purposes, and describes how prosecutors will pursue protective orders from judges to help keep records private. State law allows anyone who is denied access to a public record to challenge the decision in court. Montgomery promises police agencies that if they are sued over withholding records, he will “indemnify” them.
“The desires of the public and media to view firsthand evidence of criminal conduct, particularly video evidence, will remain unabated,” Montgomery wrote. “Equally so is our continuing duty to protect the rights of the accused, any victim, and the integrity of a criminal investigation and prosecution. Our criminal justice system deserves no less to maintain our community’s trust and confidence.” “The public at large should be worried,” said Tom Irvine, an attorney who has previously represented the Maricopa County Board of Supervisors. “If you can’t get information about what’s happening on criminal matters in your community, or know if police are acting improperly, then you have a big problem.” Glendale Police Chief Rick St. John said, “I think Mr. Montgomery knows that at the end of the day, chiefs of police have the right to release information to the public that we’re not bound to protect under rules of the court. He has a different set of rules that he’s playing by.”
A study issued by the National Institute of Justice found that diversion programs benefit not only prosecutors, who save time, money and resources that could be spent on more serious cases, but also defendants, who avoid conviction and re-arrest.
Prosecutor-led diversion programs can lead to reduced conviction and incarceration, as well as reduced re-arrest rates, according to a study issued by the National Institute of Justice.
The study examined 16 prosecutor-led diversion programs in 11 jurisdictions across the country and conducted impact evaluations of five programs and cost evaluations of four programs.
Authors found that conviction rates among diversion and comparison cases were nine percent vs. 74 percent in Milwaukee’s Diversion program; 16 percent vs. 64 percent in Chittenden County’s Rapid Intervention Community Court (RICC), and three percent vs. 61 percent among felony defendants in Cook County’s Drug School.
Notably, all five programs also achieved at least some reduction in the use of jail sentences.
In recent years, a growing number of prosecutors have established pretrial diversion programs, either pre-filing—before charges are filed with the court—or post-filing—after the court process begins but before a disposition.
Participating defendants must complete assigned treatment, services, or other diversion requirements. If they do, the charges are typically dismissed, relieving the defendant of jail time and the latter consequences of a criminal record.
Diversion programs are beneficial not only to defendants, but to prosecutors as well, who save time, money and resources that could be allocated towards more serious and complex crimes, said the authors.
Now, prosecutor-led diversion programs are one of several increasingly popular “front-end” interventions targeting cases early in case processing, often before a case reaches the court, they noted.
“Our study confirmed a broader trend towards diverting cases to treatment or services at an extremely early juncture in criminal case processing,” the authors concluded.
Here are some of the other main findings in the study:
Case Outcomes: All five programs participating in impact evaluations (two in Cook County, two in Milwaukee, and one in Chittenden County, VT) reduced the likelihood of conviction — often by a sizable magnitude. All five programs also reduced the likelihood of a jail sentence (significant in four and approaching significance in the fifth program).
Re-Arrest: Four of five programs reduced the likelihood of re-arrest at two years from program enrollment (with at least one statistically significant finding for three programs and at least one finding approaching significance in the fourth). The fifth site did not change re-arrest outcomes.
Cost: All four programs whose investment costs were examined (two in Cook County and one each in Chittenden and San Francisco) produced sizable cost and resource savings. Not surprisingly, savings were greatest in the two pre-filing programs examined, which do not entail any court processing for program completers. All three programs whose output costs were examined (i.e., omitting the San Francisco site) also produced output savings, mainly stemming from less use of probation and jail sentences.
This study was implemented as a collaboration among the Center for Court Innovation, the RAND Corporation, the Association of Prosecuting Attorneys, and the Police Foundation. A full copy of the report can be found here.
Megan Hadley is a staff writer with The Crime Report. She welcomes readers’ comments.
District attorneys in New York City’s Manhattan and Brooklyn boroughs are weighing plans to stop prosecuting the vast majority of people arrested on marijuana charges, potentially curbing consequences of a law that is enforced most heavily against blacks and Hispanics.
District attorneys in New York City’s Manhattan and Brooklyn boroughs are weighing plans to stop prosecuting the vast majority of people arrested on marijuana charges, potentially curbing the consequences of a law that in New York City is enforced most heavily against black and Hispanic people, reports the New York Times. The Brooklyn district attorney’s office, which in 2014 decided to stop prosecuting many low-level marijuana cases, is considering expanding its policy so that more people currently subject to arrest on marijuana charges, including those who smoke outside without creating a public nuisance, would not be prosecuted. The Manhattan district attorney’s office, which last year decided to lighten penalties for some marijuana offenders, also would decline to prosecute the vast majority of low-level marijuana cases, with some exceptions for people with serious criminal histories.
Those changes would amount to a forceful disavowal by two high-profile prosecutors’ offices of criminal penalties for an offense that has been taken off the books in some states and that in New York City is enforced overwhelmingly against blacks and Hispanics. The discussions have been prompted in part by concerns among prosecutors about the continuing racial gap in marijuana arrests. The Brooklyn district attorney’s office has been experimenting for several weeks with declining to prosecute some cases of people arrested for smoking in public. Prosecutors in Manhattan have been studying jurisdictions that have legalized marijuana. Of the more than 5,000 people arrested on low-level marijuana charges in Manhattan last year, only 100 to 200 would have been prosecuted under the plan being considered. Police Commissioner James O’Neill hinted on Monday that he was already re-evaluating marijuana arrests. He said at a City Council hearing that more than a third of the people arrested on low-level marijuana charges last year had no previous criminal record.
In 2016, conservative Nueces County, Tx., elected Mark Gonzalez, a 38-year-old Democrat and self-described “Mexican biker lawyer covered in tattoos,” as district attorney. Gonzalez had never prosecuted a single case. He is a progressive prosecutor who still has filed death penalty cases.
In 2016, conservative Nueces County, Tx., elected Mark Gonzalez, a 38-year-old Democrat and self-described “Mexican biker lawyer covered in tattoos,” as district attorney. Gonzalez had never prosecuted a single case: For his entire 10-year career, he specialized in getting accused criminals off the hook, working mostly with low-income, minority offenders, fighting low-level charges for marijuana and other substances. Gonzalez is part of a small wave of prosecutors, politically liberal and in some cases civil-rights advocates, who’ve been elected to roll back the excesses of the past 20 years’ worth of tough-on-crime laws, Politico reports. What might make him the unlikeliest DA in the U.S. is that he belongs to the motorcycle club Calaveras, which describes itself as a charity group but which the state of Texas officially considers a gang.
Gonzalez has staked out issues on which he wants to play reformer: a cite-and-release program for cases involving minuscule amounts of marijuana and a domestic violence initiative that includes assisting cosmetologists to spot signs of abuse in clients. He was one of 31 prosecutors nationwide to sign on to a letter sent last year to Attorney General Jeff Sessions, opposing his tough-on-crime order for federal prosecutors to “charge and pursue the most serious, readily provable offense.” On other big issues, including the death penalty, Gonzalez’s positions are, by his own admission, still evolving. He has pursued capital punishment in several cases, saying, “It’s not so much that I believe in it, but I want to give these decisions to the community.”
The American Civil Liberties Union is launching voter education and mobilization campaigns in up to two dozen cities across 10 states as part of its campaign to reduce jail and prison populations. Other advocates are also organizing around prosecutor elections, and social justice political action committees are spending big to elect reformers.
When William Roundtree got out of prison earlier this year, it took him just a few days to find a job that put his experience to work. He spent 13 years and 10 months in prison for receiving stolen property. After leaving prison, he ran into people at a light rail stop working for the American Civil Liberties Union of Texas. Soon, the tattooed 40-year-old was making $12 an hour knocking on doors and talking to voters at shopping centers and train stations about the upcoming primary election for Dallas County district attorney, reports KERA in Dallas. Roundtree wasn’t pushing a candidate, but an idea: that prosecutors are incredibly powerful, and that voters could use the election to elect one committed to reducing incarceration rates and racial disparities in the criminal justice system.
Roundtree is the front line of a national push to fundamentally change criminal justice, one local prosecutor at a time. Nationwide, the ACLU is launching voter education and mobilization campaigns in up to two dozen cities across 10 states as part of its campaign to reduce jail and prison populations. Other advocates are also organizing around prosecutorial elections, and social justice political action committees are spending big to elect reformers. “We know that prosecutors at the end of the day are the ones who decide whether an individual comes into the justice system, and what that trajectory looks like,” says Miriam Krinsky of Fair and Just Prosecution, which works with reform-minded elected prosecutors.