Reasonable Doubts, Unpopular Verdicts

Unless you have avoided reading a newspaper or watching the television this week you are aware that the jury in the Casey Anthony case returned a verdict of "not guilty".  This has been difficult for many people to understand so it seemed like a perfect time to discuss reasonable doubt and how a jury, even in light of many unfavorable facts, could find Casey Anthony not guilty.

Jury Instructions

     In criminal cases juries are read various instructions both before opening arguments and after closing arguments which define many of the legal terms and standards that they are required to apply to a case.  This is often an incredibly boring part of the trial but it is also one of the most important.  The Judge will explain to the jury all the elements in each of the charges alleged, the definition of reasonable doubt, presumptions that are to be made, how to assess the credibility of witnesses,  and various other instructions.

What is reasonable doubt?

     New York defines reasonable doubt as follows:

          A reasonable doubt is an honest doubt of the defendant's guilt for which a reason exists based upon the nature and quality of the evidence. It is an actual doubt, not an imaginary doubt. It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.

         Proof of guilt beyond a reasonable doubt is proof that leaves you so firmly convinced of the defendant's guilt that you have no reasonable doubt of the existence of any element of the crime or of the defendant's identity as the person who committed the crime

     Jurors must find that the prosecution has proven each and every element of the crimes alleged beyond a reasonable doubt.  It is a very heavy burden and a burden that never shifts to the defense.  The defense is not required to prove anything.  The credibility of each witness must be evaluated and if a witness lies about any part of their testimony, the jurors are instructed that they may disregard all or part of that witness's statement.  Remember, the defendant is presumed innocent and has to be PROVEN guilty.

Jury Deliberations

    After jurors have heard all the evidence, have listened to closing arguments, and have been read all relevant instructions on the law, they are sent into a room to deliberate.  Juror deliberations are done in secret so as to prevent any outside factors from influencing their decision.  A verdict must be unanimous and after a verdict is reached it is up to the jurors, and only the jurors, to decide whether or not to discuss with anyone how deliberations took place- even the lawyers in the case are not allowed to reach out to jurors to discuss their deliberations (even if it would impact a possible appeal).

     We want jurors to base their decisions on the evidence, not on the media, not on fear of persecution from the public and talking heads.  Since the inception of our judicial system there has been case law and legislative action implementing rules of evidence and factors of admissibility for a reason- a defendant is entitled to a fair and impartial jury.  The worst thing that could happen to our judicial system is for an individual, any individual, to be denied that right when their life hangs in the balance.  Justice does not always result in a popular verdict, but we still need to respect the system, the jurors, the attorneys, and the families of those involved.  The day we begin to disrespect our system and the rules of evidence is the day all our our rights, not just those accused, are placed in to jeopardy.   That's a very scary thought.




 

Criminal Case Dispositions- ACD vs. Violation

Many clients are offered plea bargains during the pendency of their case, and often low level misdemeanors are given two possible options, an adjournment in contemplation of dismissal (ACD) or a violation.  Here are the differences:


Adjournment in Contemplation of Dismissal (ACD)

   An ACD does not require the defendant in a criminal action to plead guilty to anything.  Instead, the court adjourns the case for a period of six months to one year and, assuming all conditions are complied with and the defendant does not incur any new criminal charges during that time, the case is dismissed and the record sealed.  Some conditions can include payment of a fine, community service, and completion of anger management.  The ACD ultimately has the same effect as an outright dismissal and often this disposition is offered even where the Assistant District Attorney knows their case is too weak to continue to trial or there are other technical issues which could impact the case.

  In cases where an ACD has been offered, and accepted, at the expiration of the adjournment period the defendant's record will be dismissed, sealed, and the defendant is restored to their pre-arrest status.  All papers and records relating to the case must be sealed, meaning that no one will be able to locate or view them.  If you are asked on a job application if you have ever been arrested you can legally answer "no".  Even if you were to try and view your case file at the courthouse after the case has been dismissed and sealed, the clerk's office would tell you there is no active or inactive record of the case.

Violations

   A violation is defined by the NY Penal Law in Section 10.00 (3) and refers to an offense, other than a "traffic infraction" for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed.  Generally when a defendant pleads to a violation it is to a disorderly conduction violation, pursuant to Penal Law Section 240.20.  It's entirely possible that 'disorderly conduct' in no way describes what actually occurred and this plea is often referred to as one of legal fiction (meaning that while not true, it allows both sides to accomplish certain objectives, namely a non-criminal disposition). 

   The violation does not end in a dismissal as the ACD does, however, even the Judge will tell you that a violation is a NON-CRIMINAL disposition that is similar to a parking ticket.  Additionally, the violation is sealed after one year and therefore will not effect most job background searches.

What's Better? 
   An ACD is certainly any defense attorneys ultimate goal when negotiating a plea in a criminal proceeding but often, even after a lot of time and hard work, it is simply not offered.  However, a violation is just one step above an ACD and still allows the defendant to avoid most criminal ramifications that a conviction could cause.  Certainly, both the ACD and the violation are much more favorable to a misdemeanor or felony conviction and all options should be thoroughly discussed with your attorney. 

The case of Kevin Rios and a defense perspective

Kevin Rios was a former client of mine and on June 20th his trial will be featured as part of a documentary airing on HBO.  I wanted to give some background on the case as it was an extremely interesting and disturbing case that shows just how flawed our justice system can be.  As you may be aware, attorney-client privilege is an extremely important and crucial part of our jobs and therefore I want to preface this post by saying that all information contained herein is a matter of public record and in no way violates the clients privilege.

The 2006 Case

Mr. Rios was charged with two counts of predatory sexual assault, which is essentially aggravated rape with a weapon, as well as robbery, sexual assault, sexual misconduct, and several other charges.  The first allegation stemmed from a 2006 case where it was alleged that he and another individual picked up a prostitute and, driving separate cars, went to a parking lot behind a storage facility close to the West Side Highway.  When they arrived the woman went into the van owned by Mr. Rios where they raped her repeatedly while threatening her with a gun.  Once the rape was completed they stole her car.  The woman immediately called the police and kept Mr. Rios's semen in her mouth until the police arrived.

Here is where the case gets even worse.  When the police arrived on the scene the prostitute gave the police Mr. Rios's license plate number as well as the semen, from which a DNA sample was obtained.  The lead detective never ran the license plate number into the system.  Several months later the DNA matched a previous sample Mr. Rios had given when arrested as a juvenile for a driving offense.  A letter indicating a match from the scene to Mr. Rios was then sent to this detective and still the detective did nothing.  Approximately 4-5 months after the rape allegation was made, the detective wrote up a report stating that the complainant (the prostitute/victim) met with an investigator from the District Attorney's Office but that the investigator did not find the complainant credible and therefore the detective was closing the case.  This meeting never took place and the report was completely wrong (or fabricated, depending on who you believe).

The 2008 Case

In 2008 Mr. Rios was again accused or rape.  In this incident it was alleged that he followed a babysitter from the subway to the home where she worked in Harlem, and at approximately 8 am on a weekday, he held a knife to her throat while in the elevator of the building, his foot in the door keeping it open, and repeatedly raped her.  DNA was recovered from the scene, entered into CODIS (the DNA databank) and matched to Kevin Rios.  This time he was arrested and labeled "the babysitter rapist".

The first trial actually dealt with the 2008 charge and, with DNA and an identification by the victim weighing heavily against him, he was convicted and sentenced to 15 to life.  The second trial (dealing with the 2006 rape) took place in March of 2010 and Mr. Rios took the stand in his own defense stating it was consensual sex with a prostitute.  The other individual alleged to be involved with Mr. Rios still has not been identified.  He was again convicted and sentenced to 12 to life to run concurrently with the sentence in the 2008 case.

The Documentary

The documentary airing on HBO focuses on the 2006 case from the District Attorney's point of view and shows how they prepared the case for trial.  However, there is no mention of the detectives actions, or inactions, which made this case even more interesting and disturbing so I wanted to just provide everyone with the background and context in which the trial took place.  On Wednesday night, following the pre-screening and reception of the film, I ran into two other detectives that were involved in the case who were equally disgusted with the lead detectives actions but who would only say "he was transferred".  They were not so forthcoming as to admit that he was "transferred" to homicide which is effectually a promotion.  Ah, nepotism at its finest (i believe his father was also on the police force).

The detective aside, the film really is an interesting look inside the District Attorney's Office and many of the prosecutors shown in the film, Coleen Balbert, Melissa Penabad, Jen Sculco, and Lisa Friel, are some of the best and most ethical ADA's I've had the pleasure to work with and whom I hope all other ADA's will aspire to conduct themselves.

A Defense Perspective
Most sex crimes cases do not involve DNA and identifications as the Rios case did.  It's important to remember that a good number of cases deal with a he said/she said situation that hinges on the credibility of the parties involved and not all ADA's disregard the "win at all costs" approach and instead focus on justice. Just last year I tried a case where a 40 year old man, with no criminal history, was accused of molesting the friend of his 13 year old daughter.  The ADA, who was one of the worst I have ever dealt with, screamed at my client in the hall of the courthouse that "no jury would ever acquit him" and repeatedly called him a variety of disparaging names.  This ADA did not have the insight and ability to realize that there were dozens of lies and inconsistencies told by the complainant and her family but yet she continued to prosecute the case.  This man was found not guilty of all charges in 5 minutes.  The judge actually commented that it was the fastest verdict he'd ever had and I had several jurors afterwards approach me with sympathy for my client, telling me that the case never should have gone to trial.

But what if he had been convicted?  What if they hadn't believed him and instead had believed the baseless disparaging remarks the ADA kept slipping in to the jury?  He would have had to register as a sex offender for a minimum of 20 years, he would have lost his green card and been deported, and he would have likely gone to jail. Just waiting for trial he lost his job because he had to take so much time off to go to court, the stress on his family caused problems between him and his wife, and this wonderful man, who always helped out his neighbors, stopped doing so because he was so afraid someone else could easily make such an accusation.

Keep in mind that while a defendant will likely be persecuted for false statements they make during trial, a complainant almost never is.  I have never had a case, even where the complainant was clearly lying and making false allegations, where the DA's office filed perjury charges against the complainant.  All a person has to do is say "that man raped/assaulted me" and often charges are filed and a defendant's life is turned upside down.  The media convicts many of these people even before trial and it's hard for wrongly accused defendants, and there are people wrongly accused, to move on with their lives. 

So I guess the point I'm trying to make is that there are always two sides of every story.  We have "presumed innocent" and "guilt beyond a reasonable doubt" standards for a reason.  Please keep an open mind in cases until you have all the facts and recognize where your information is coming from.  Not every defendant is guilty, not every prosecutor is playing by the rules, and not all cases are what they seem on the surface.  Sex Crimes Unit is a great documentary and a great model for other DA's offices but it is only a look at one side of a trial, and while the case of People v. Rios was a difficult one from the defense side, there are many cases that aren't so simple.  Thanks for reading!

Bail and the Head of IMF

Today Doug Schneider and I went 100 Centre Street to watch closing arguments in the case of the two police officers charged with rape.  Not only was there a press field day for that case but there was a ton of press outside waiting to hear news about the arraignment of the IMF head, Dominique Strauss-Kahn, who is currently charged with sexual assault.  In case you have not heard, he was denied bail and remanded.I was interviewed by a French newspaper who was asking why he was denied bail when he is clearly a well known figure and could be easily found if he disappeared so I decided this would be a good post topic for today. 

There are several factors which come into play when the court decides whether or not to grant bail to a defendant- the two main factors being risk of flight and dangerousness to the community.   As he is a foreign citizen with unlimited resources and charged with a crime of violence it is not surprising that bail was denied for the time being.

Additional factors which are to be considered in the court's discretion are found in New York's Criminal Procedure Law (CPL) Section 510.30 include:

1. The defendant's character and reputation
2. His employment and financial resources
3. The defendant's community ties and length of residence in the New York area
4. The weight of the evidence
5. The defendant's past criminal record, and
6. The possible sentence if convicted

The fact that Mr. Strauss-Kahn is a French citizen who was boarding a flight to a country that does not extradite its citizens to the United States for trial is certainly a factor that the court was considering when deciding to remand him.  Additionally, there have been previous allegations of sexual assault against him and he has unlimited resources- even if he was to post $5 million in bail to secure his appearance for future court dates (meaning that he puts up that money and must forfeit it if he does not appear) that likely is no incentive as $5 million to a billionaire when risking a lengthy jail sentence.

When considering these factors it is not surprising that the court remanded Mr. Strauss-Kahn who will likely find his new abode in Rikers for the foreseeable future.  Now the District Attorney's Office has one hundred and twenty hours to convene a grand jury and indict him otherwise his release is mandated by another statute, CPL 180.80. If he is indicted, the Supreme Court judge will once again arraign Mr. Strauss-Kahn and the issue of bail will likely be reviewed once again.

Stay posted for more information on this case or feel free to email me with questions at Kimberly@SummersAndSchneider.com

Welcome!

On May 15th, Summers & Schneider will celebrate our first six month anniversary!  As we are in the age of facebook, blogging, tweeting, and a number of electronic networking and information exchanges we don't even know about, we decided that now would be a great time to start a blog.  We hope to share some of our experiences with you (and anyone who has been involved with criminal defense knows we often have some good stories!) and some of our legal knowledge.

We want this blog to be for you, our readers, and therefore if you you want us to discuss a particular topic or subject please feel free to post a comment or email us and we will do our best to respond.  Thank you to all our family, friends, colleagues, clients for making our first six months a wonderful and successful time and we look forward to the years ahead.  Happy reading!