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One Big Snowball War

-- By CeciliaWang - 22 Feb 2010

The adversarial method of our criminal courts may have many benefits that make the system more efficient and fair than impartial investigators – possibly because we simply are not so naïve to believe that thousands upon thousands of investigators and judges can be trusted to remain impartial and uncorrupted. For one, by forcing lawyers to take sides, we eliminate the whole problem of the moral issue.

Unintentional Cruelties Caused by Normal and Common Imperfections

Most people, and therefore most prosecutors, are not evil. Great harm can be caused though, when one, numbed by repetition and quantity of work, becomes lazy or thoughtless or stubborn, as everyone can easily be at times. They will search for crimes when perhaps none were intended for no better reason than a case file was already prepared. ADA Anna ignored my suggestion that a man's criminal trespass, into the apartment of a woman who possessed an order of protection against him, was an honest mistake. Defense counsel filed a motion stating he entered into the apartment to pick up their son. The son told me he had no idea why his father went to the apartment, but during a second conversation remembered that his father called him later to ask him where he was, said he expected the son to be at the apartment, and then picked him up from a park. If he is a perfectly rational man, he should have known to not risk being charged with a felony (elevated due to the OP) and not entered her apartment without permission. The poor defendant will be kept in legal limbo because the obvious antagonism between attorneys on both sides, underneath the veneer of congeniality during courtroom breaks, makes conceding a good point exceedingly hard.

"They Think They're Gods" and They Don't Want to "Lose the Snowball Fight"

“When defense counsel gets the Complainant to say she doesn’t want to go forward in the case, that she hit herself in the head with a phone three times, accidentally, he thinks he just made a big snowball that will knock down our cases,” my supervisor once said. “To overcome that big snowball, we must prepare twenty snowballs of our own.” Those snowballs of evidence include: 911 tapes that recorded a clearly terrified voice, photographs, the responding police officer’s impression of the situation, medical records, domestic incidence reports.

The county that refuses to dismiss cases even when the victim comes out in support of the defendant of course as the lowest dismissal rate in the state (13%). The county also boasts the lowest domestic violence homicide rate. While that serves as a viable reason for persisting with prosecution without a self-identified victim, the snowball analogy suggests cases are pursued for the sake winning a challenge.

“Gentle Pressure Relentlessly Applied”

...Is the policy towards complainants deemed uncooperative by their refusal to accept the role of victim. I cannot speak to the insightfulness of he Legal Aid lawyer's evaluation of young prosecutors in Manhattan but the policy of relentlessly prosecuting against the wishes of the alleged complainant takes grants a young prosecutor the God-like right to categorize people as victims and abusers against their proclaimed reality. It also absolves them of the burden of making difficult moral judgments. I find this incident in my work journal: "Yesterday, I observed an interview that I meant to record. A Hispanic mother and her daughter came in for an interview. The mother needed the father home. She couldn’t speak English, had four kids, and needed the Full Order of Protection cancelled so that their father can return home and help her run the family. She also feared he might be deported once put in the system. My ADA told her that she understood, but brought up the bureau's policy and used the language of the official complaint to shock the woman into accepting the FOP. She was taken to Safe Horizons, where they can guide her through obtaining financial help."

They are like Gods in their relation to the people whose lives are contained in the dozens of case files piled on their desks and chairs at on any give workday. Remarkable damage can be done to many lives during a ten minutes interview. One can blame the defendant or the witness for having invited state interference first place, thereby setting in motion a trajectory of procedures unstoppable until arrival in court - except despite the courts' rulings against ignorance of the law as a defense, we cannot fairly expect a momentarily angry or terrified witness to know the consequences of a 911 call, or the consequences of ignoring calls from the prosecution, which could result in a default plea bargain of no contact for two years (State v. Lu, Li Ting).

The Original Question (Paraphrased)

"If your supervisor needed you to work on a case against a defendant whose [moral?] guilt you doubt." The obvious professional answer, now that I see how county prosecutors handle their cases, is: "Then I will do as I am told, which would be to call witnesses and investigate the case in hopes of finding evidence for the prosecution, and then present the prosecutor with the exculpatory evidence I find and ask for the case to be dismissed for insufficiency."

Conclusion

If lack of guilt is obvious, then I have to ask that the charges be dismissed, and offer to the assistant district attorney the exculpatory evidence which she must also turn over to the defense attorney under Brady v. Maryland. If I cannot prove with the evidence I uncover reasonable doubt as to a potential defendant's guilt, it seems only fair to the complainant that we present the evidence in either a plea agreement that accurately reflects our view of the case or in trial. Prosecutors are not judges and juries; the task of investigating and trying to prove an assigned case is as monotonous as any office job. It is what one does, and any strong daily awareness the moral and personal consequences of such routine actions eroded by their very routineness. This is the dangerous position of unappreciated power that a mere three years of law school allows. I really hope Professional Responsibility is a class powerful and persuasive enough to leave a mark.