In any jurisdiction in the United States, a person who is accused of a crime is presumed innocent unless and until his guilt is proven beyond a reasonable doubt as to each element of every crime charged in either an indictment or other accusatory instrument. It stands to reason that if a person is presumed innocent while they “fight the case” it would be incredibly unfair and inconsistent with that presumption of innocence to have the person incarcerated before they have even been convicted. On the other hand, if a person is charged with a very serious crime that could lead them to spend a significant portion of their life in jail and if the case is strong, the person may have a strong incentive to flee. The concept of bail exists as a compromise between the ideals of our justice system and the reality that free people don’t like losing their freedom.

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I am often asked by clients to explain to them the differences between the criminal justice system on the state and federal level. I will try to explain some of the differences in both a succinct way and then in a more elaborate way. Some people mistakenly think that the case is more serious and the chances of prevailing are smaller if the case is federal. This isn’t true. Every case is unique and how it is handled matters. This is true regardless of where the case is heard. You need a good lawyer either way.

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Suppose hypothetically speaking that a six-year old child disappeared without a trace in lower Manhattan in 1979. Suppose further that there are two suspects in this disappearance. One is a mentally diminished man who worked at a local deli just a few blocks from where the boy lived. This man has several psychiatric issues and has a very low IQ, but has no history of violence either before or after the event. Suppose this man went on to live a somewhat normal life in which he raised a family in New Jersey. Suppose there is absolutely no allegation that he ever harmed anyone ever other than this one time where he brutally murdered a six-year old boy. Suppose the other suspect is the boyfriend of the boy’s babysitter. Suppose this person is a known child molester who was twice convicted of molesting children, one who was six and one who was eight. Suppose the suspect with no record, but who has an IQ of approximately 70 spent multiple hours with detectives off camera before he gave a 35 minute confession on camera to killing the kid and then “throwing him out” like garbage on the street. Suppose the convicted child molester also made a statement to a different prosecutor that he was “90 percent sure” he molested the boy right around the time he went missing. Who would you think was the boy’s killer?

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The New York Times reported this morning that a Staten Island judge has refused to release the minutes from the Eric Garner Grand Jury Proceeding. This is not even remotely surprising. Generally speaking, Grand Jury minutes are rarely released. The concept of Grand Jury secrecy dates back hundreds of years. It exists so witnesses can feel safe in testifying against others and it stops the targets of investigations from knowing they are a target of an investigation. The concept of Grand Jury secrecy is so serious that it is actually a felony to illegally to even discuss what happens in a Grand Jury proceeding unless certain criteria are met. There are some pretty obvious exceptions to this rule. Most notable is that if the case eventually proceeds to trial then the defense attorney is entitled to have the minutes from any witness who testified in the Grand Jury if the prosecutor intends to call that witness at trial. The lawyer doesn’t get these minutes until before opening statements in a jury trial, or before the first witness testifies in a bench (judge) trial. The Grand Jury minutes of a defendant are also discoverable if the defendant chooses to testify on his own behalf in the Grand Jury.

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Watching “the Jinx” on HBO was certainly on my list of things to do. Indeed, I knew about the story and I wanted to see it, but I kept putting it off for when I had more time. Then over the course of this weekend, Robert Durst got arrested for the California killing of Susan Berman and I got a news alert for quite possibly the biggest spoiler alert in recent history from the New York Times. So I sat down and plowed through the series. From a criminal law standpoint, it’s obviously fascinating. I am annoyed at myself for not watching it sooner. In any event, for those that don’t know (SPOILER ALERT), Robert Durst basically said he committed all three murders when he thought he was off camera. He was still on microphone though and the apparent confession was recorded. That recording aired last night during the documentary’s finale.

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The Michael Brown and Eric Garner cases have gotten a lot of attention lately. And because in both instances the grand jury failed to indict, the grand jury system has also gotten a lot of attention. It seems like the process itself has come under indictment attack. But how does the grand jury system work?

A grand jury is a secretive body that is composed of regular people who get jury duty. There are two kinds of jury duty a person can get. The first is a summons to serve on a petit jury and the other is for a grand jury. Most people who watch TV or follow the news are familiar with a petit jury. This kind of jury is usually composed of 12 people and their job is to determine at trial whether the evidence proves beyond a reasonable doubt that a defendant is guilty. They usually sit to the side next to witness stand. A judge presides during the trial, the prosecutor is there, there is a defense attorney, the defendant, etc. They hear opening statements, testimony, summations, and then they deliberate and reach a verdict. A grand jury, on the other hand, is a fundamentally different animal.

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Suppose three people named Adam, Brian, and Charlie decide to rob a bank. They devise a plan in which Adam is going to go in first and announce that a robbery is occurring. The plan is for him to take out a gun and to scare everyone into submission. While he does this, Brian is supposed to go into the vault and take out all the money. Charlie is waiting outside in a car with the engine running. After Brian takes out all the money, he and Adam are supposed to run into the car and Charlie is supposed to drive off. Suppose this happens exactly according to plan. However, Adam leaves behind his ski mask which has his DNA on it. Adam is then arrested. In an effort to avoid jail time, Adam agrees to reveal the identity of Brian and Charlie and to testify against them. To what extent are Brian and Charlie guilty of the robbery? In other words, suppose they are each indicted for one count of Robbery in the First Degree. Pursuant to New York law, a person is guilty of Robbery in the First Degree when he forcibly steals property and he uses a firearm in the commission of the crime. Here, the only person who was armed with the firearm was Adam and he cut a deal with the government. Are Brian and Charlie also on the hook for the robbery? The answer is yes.

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There is obviously a lot of talk in the media lately regarding whether Police Officer Darren Wilson was legally justified in killing Michael Brown. In addition, Akai Gurley was fatally shot by a police officer in Brooklyn a few days ago. People tend to get upset when police shootings happen and the media tends to focus on whether the person who was shot was armed or not. If the person was unarmed and the police officer isn’t ultimately convicted of his murder, there tends to be outrage just about every time. But what exactly is the law on whether a police officer is allowed to use deadly physical force? Not surprisingly it is a relatively complicated issue. First off, the law varies by jurisdiction. Because I am a New York lawyer, I will focus on New York law.

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Suppose a person has a few glasses of wine with dinner and then drives home. Right before getting home, he turns onto his block without signaling. A police officer then pulls him over and detects an odor of alcohol coming from his breath. The officer asks the person to step out of the car and the person complies. He is then given a field coordination test. The officer determines that the person may be intoxicated. So the person is taken to the precinct for further testing. Once at the precinct, the officer determines that the person’s blood alcohol content (“BAC” for short) is .09. This is over the legal limit in New York (where all this happens). The person is then placed under arrest and is charged with drunk driving. How did the police determine the blood alcohol content of the driver? How can you know the result was accurate?

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Gigi Jordan, a multimillion dollar pharmaceutical executive, was found guilty of Manslaughter earlier this week. In 2010 she killed her autistic son by jamming a cocktail of drugs and alcohol down his throat. She was charged with Murder. After a long bout of bizarre litigation with novel defenses that aren’t really defenses, her murder trial began earlier this Fall. The prosecution contended that she intentionally killed her son and should therefore be found guilty of Murder in the Second Degree. The defense was that she did kill her son, but she did so under the influence of an extreme emotional disturbance. If a jury believed this defense, then she would not be guilty of Murder, but would be guilty of the reduced charge of Manslaughter. The defense prevailed, but how does the defense work and is it really applicable in the scenario?

Pursuant to New York Criminal Procedure Law Section 125.25(1)(a), it is an affirmative defense in New York that a defendant was acting under the influence of extreme emotional disturbance when they took the life of another. An affirmative defense means the defendant has to provide evidence and prove by a preponderance of evidence (more likely than not) that what they are trying to prove is true. What that means is that in a murder trial in which this is the defense, the way it typically plays out is the prosecution provides evidence that proves beyond a reasonable doubt that the defendant killed the person intentionally. The defendant then brings evidence that he did so under the influence of extreme emotional disturbance. The classic law school scenario is when a man comes home and finds his wife in bed with his brother. He then angrily and impulsively takes out a gun and kills them both. He would be not guilty of murder (but guilty of manslaughter) if he can show that his actions were not premeditated and were the result of him being so upset at what he discovered. In New York, for the defense to work, a person needs to show three things. He needs to show: (1) that he actually had an extreme emotional disturbance; (2) in committing the homicide, the person must have acted under the influence of that extreme emotional disturbance; and (3) there must have been an explanation or excuse for such extreme emotional disturbance that was reasonable and the reasonableness of that explanation or excuse must be determined from the viewpoint of that person and in his situation under the circumstances he believed them to be.

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