The New York Court of Appeals vacated a defendant’s conviction and ordered a new trial in People v. Dunbar. They ruled that the statements made by the defendant should have been suppressed because the pre-Miranda statements by the Queens District Attorney’s Office to the defendant nullified his waiver of his right to remain silent and right to counsel. The Court was absolutely correct in this ruling.

Thanks to pop culture and basic high school civics, just about everybody knows and understands the famous Miranda warnings that police give suspects accused of a crime. You have the right to remain silent, you have the right to an attorney, etc, etc, etc. The United States Supreme Court held in Miranda v. Arizona that any time a person is legally in custody, he has to be read these warnings or anything he says cannot be used against him at his trial. The Court came up with this blanket rule so that police procedures regarding the taking of statements would be consistent throughout the country. The problem for law enforcement, though, is that some of the best evidence they can ever get about a case comes from the defendant’s own mouth and thanks to the Supreme Court, they have to tell the guy he has the right to keep his mouth shut. As I’ve previously written, a statement by a defendant does not need to be a full confession for the statement to be useful. Anything the defendant says that can be disproven by cold and hard facts can be used as powerful evidence that he lied about what happened and is therefore guilty. This is amplified by the fact that the defendant in a post-arrest situation is always going to be scared, alone, and has absolutely no idea what the police know and what they don’t know. So he’s figuratively swimming deep in the ocean in the middle of the night in these situations. This is true whether he is innocent or whether he is guilty. This is why he has the right to a lawyer.

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Suppose a person goes out for a night of heavy drinking. After the 10 or 11th shot, he blacks out. He then wakes up the next morning in a jail cell. He has absolutely no idea where he is or what is going on. He is then informed by a police officer that he punched a random cop in the street and caused him to have a bloody nose. The officer tells him that he is going to be charged with Assault in the Second Degree for causing physical injury to a police officer. The maximum period of incarceration for this crime is seven years in prison. The person is horrified at what he is accused of doing and is scared that he is going to go to prison. The question is, to what extent can he use his intoxication as a defense? Suppose he was really intoxicated and he genuinely has no recollection about the incident. So legally, how does this play out?

The answer is somewhat complicated. Pursuant to New York law, intoxication is not a defense to a criminal charge. So you won’t beat the case by saying the reason you committed the crime was solely because you were intoxicated. And even if it is true, you also can’t argue that you never even would have dreamed of engaging in the criminal behavior if you weren’t intoxicated at the time. Despite this though, evidence of intoxication “…can be considered whenever it is relevant to negative an element of the crime charged.” What this basically means is that a jury can consider the specific intoxicants’ affect on the defendant’s mind in determining whether the person had the requisite intent necessary to be guilty of the crime. So, in the hypothetical listed above, the cop puncher can argue that he was so intoxicated that he was not able to form the requisite intent necessary to be guilty of Assault in the Second Degree. Here’s how this plays out in a trial…

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Everybody seems to have at least some understanding of entrapment. From a common layperson’s perspective, the idea usually comes up in the context of a situation where an under cover cop pretends to buy or sell an illegal product or service and then arrests the other person involved in the transaction. While this could be entrapment, whether it legally is really depends on a number of intricate factors.

New York law Penal Code Section 40.05 defines Entrapment and when it is applicable. The first thing to note with regard to the defense is that it is an affirmative defense. This means that, unlike with most other defenses, it is the responsibility of the defendant to prove by a preponderance of the evidence that he was entrapped. This means that the prosecution is under no legal obligation to disprove the entrapment beyond a reasonable doubt. Under New York law, there are several situations where a defense needs to be disproven by the prosecution, rather than be proven by the defendant. This isn’t one of them. What this means is that once the prosecution brings evidence which proves that the defendant engaged in the illegality in question, the birder is on him to provide evidence that the only reason he did so was because he was entrapped. Then, if a jury finds, based on the evidence, that it was more likely than not that he was entrapped, he is found not guilty. But how does one actually succeed in proving he was was entrapped? For starters, it’s not easy.

Pursuant to New York law, a defendant has to prove two things. He has to prove: (1) that he was “induced or encouraged” to commit the crime by a public servant (or by a person working in cooperation with a public servant), who was seeking to to obtain evidence against him for the purpose of a criminal prosecution, and (2) the methods used to obtain the evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it.

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Using the testimony of a person who “has turned state’s evidence” is a common and effective tool used by prosecutors throughout the United States. There are many different circumstances in which a prosecutor’s office would want to do this.  An example would be a circumstance where a group of men rob a convenience store and one of them agrees to testify against the other robbers in exchange for leniency. Another example is when several low-level members of a criminal organization agree to testify against their “bosses.” The idea of using the testimony of accomplices against each other is as old as the legal system itself. As mentioned, it is an effective tool that has crippled criminal organizations. Without the use of accomplice testimony, the government would often have no hope in bringing down elaborate criminal conspiracies. In fact, most top level mafia and drug kingpins have been brought down by the testimony of the people whom they trusted the most.

Here is how the concept works. Suppose the government has a strong case against someone who happens to be a low-level member of a criminal organization. Suppose, for example, the person is an associate with the Gambino crime family and suppose further that he is also a drug dealer who accidentally sold drugs to an under cover officer. The government now has overwhelming proof against the person that could land him in jail for decades for the dealing drugs. He then is arrested. He can either plead guilty or go to trial and face a substantial prison sentence or he can agree to cooperate with the government by telling them everything he knows about everything. He also agrees to testify against his fellow criminal associates and bosses. Even the ones who have nothing to do with the drug dealing aspect of his criminal enterprise. In exchange, he receives a sentence of “time served” as the people he testified against get convicted based on his testimony.

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Under New York law, a person who possessed a gravity knife can go to jail for up to one year. If that same person has previously been convicted of a crime, then the possession of the knife is a felony offense and depending on what kind of crime he’s been convicted of in the past, he can go to jail for a lot longer than one year. Everyone knows that New York has strict gun laws, so it wouldn’t be a stretch to assume that New York treats all sorts of weapons harshly. It wouldn’t surprise the average person to discover that brass knuckles, expandable batons, and switchblades are illegal. It also probably wouldn’t surprise someone to learn that the “gravity knife” is also illegal. After all, “gravity knife” sounds pretty menacing. But what actually is a gravity knife? A gravity knife defined by statute is a knife that flicks open with the use of centrifugal force and locks into place without the use of a person’s hands. According to a New York Law Journal Article, these knives came into prevalence in the earlier part of the 20th century because paratroopers needed to be able to open a knife with one hand to cut themselves down from a parachute in case their other hand was tied up. They were considered dangerous by the New York legislature because they can be opened and brandished very quickly.

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Hypothetically speaking, suppose you are in college and your friend calls you up and says, “hey man, a couple of my friends and I are going to be hanging out tonight and we’d like to smoke a little weed, would you mind getting some for us?” Suppose further that you actually do this. Then when you show up at your friend’s place and you give him the marijuana that you just bought for him, it turns out that one your friend’s friends is an under cover police officer and he places everyone under arrest, including you. In fact, not only are you under arrest, but you are charged with selling the marijuana. Are you guilty? Under those facts, you are probably not guilty in New York of selling the marijuana.

The reason that is true is because New York has a very progressive defense entitled “agency.” Basically, if you are involved in a transaction for illegal drugs, you are not guilty of selling the drugs if the government fails to prove beyond a reasonable doubt that you were merely acting as an agent of the buyer in that transaction. In other words, your involvement in that transaction is not that of a seller, but rather as someone who is working for the buyer to purchase the illegal drugs. In that context, you would still be guilty of possessing the illegal drugs and you may even be guilty of criminal facilitation. But you are not guilty of selling the drugs. So if person A goes up to person B  and gives him some money and asks him if he can go get some drugs, then person B goes and gets the drugs and gives them to person A, then person B is an agent of the buyer, not a seller.

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On May 25, 1979, a 6-year old boy named Etan Patz left his home to go to school for the first time without being accompanied by his parents. He lived in lower Manhattan and was supposed to walk just two blocks alone to catch a bus that was supposed to take him to school. He was tragically never seen again. The police searched all of New York for the boy and his image was placed on countless milk cartons, newspapers, and was even displayed in Times Square. Sadly, there were few leads and the case quickly became cold. The body of the boy was never discovered.

A suspect did eventually emerge however. His name was Jose Antonio Ramos. Ramos, it turns out, was a friend of Patz’s babysitter. He was also a convicted child molester. Despite some evidence that suggests that Ramos was Etan’s killer (including a confession), he was never formally charged with the crime. Instead, a person with mental health problems named Pedro Hernandez was arrested and charged in 2012 after he confessed to the murder. A hearing to determine whether the confession is admissible began this week. Because a body was never found and there does not appear to be any eye-witnesses, the confession itself appears to be critical if the prosecution hopes to sustain a conviction. Harvey Fishbein, Mr. Hernandez’s lawyer, is attempting to have the confession suppressed on several grounds. According to Mr. Fishbein, his client was unable to voluntarily waive his Miranda rights due to his mental illness. Mr. Fishbein also argued that the interrogation was so coercive that it violated Mr. Hernandez’s constitutional rights. The science behind false confessions appears to be more compelling with time and more people are starting to understand that innocent people can and do confess to crimes they didn’t commit in certain circumstances (I blogged on this issue before). So the climate isn’t all that great for the prosecution here.

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Adrian Peterson was criminally accused of child abuse when a Texas Grand Jury indicted him last week. Disturbing pictures were released that showed lacerations on his four-year old son’s legs. I suspect this story is gaining a lot of traction because the NFL is in the media a lot these days for a number of off-the-field incidents that have occurred in the past few months. In addition to the Ray Rice scandal that is getting a large amount of the attention, there’s also the Greg Hardy incident and the Ray McDonald incident. As most of you probably know, Ray Rice was accused of knocking his fiancee out cold in a domestic violence incident in a casino. Meanwhile, Greg Hardy was convicted in June of beating and threatening to kill his girlfriend and Ray McDonald is under active investigation for beating his pregnant girlfriend. As a result of these incidents, the NFL is rightly being criticized for having a culture of violence against women. These incidents speak for themselves and many people are already discussing them to the point where I really don’t have much to add. Domestic violence is bad, people shouldn’t commit acts of violence against their partners, and the partners shouldn’t be in relationships with people who beat them. I really went out on a limb there, didn’t I? The Adrian Peterson story is a lot more nuanced.

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In the 1980’s and early 1990’s, crime in New York was at an all-time high. Thousands of people in New York were literally getting murdered every year. The murder rate reached its peak in 1990 when 2,605 people were killed in New York City. Then in 1993, a tough talking former prosecutor named Rudy Giuliani became New York’s mayor. Giuliani decided to make Bill Bratton his police commissioner. Bratton had previously been the police commissioner in Boston. Bratton then implemented the “Broken Windows” theory and the crime rate plummeted. Every single year since Bratton took over, the murder rate fell further and further. It continued to fall even after Bratton was ousted by Giuliani and fell even more when Bloomberg took over for Giuliani. 683 people were killed in 2012. This is a sharp decline from 2,605. Seems like this “Broken Windows” theory is amazing. Unfortunately its not.

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The New York Times announced last Sunday that it supports the legalization of marijuana. Technically, the New York Times didn’t quite say it favors outright legalization so much as it stated that the Federal prohibition against marijuana should be repealed. In any event, this is a big step in the inevitable decriminalization of the plant. I remember thinking a few years ago that marijuana will be legal within my lifetime (assuming I live a normal life). Now, I think it’s going to happen within a few years. The idea of legalizing marijuana has been bubbling for decades now, but it is finally gaining some real steam. In my opinion, the recent actions of Colorado and Washington pushed the issue past its tipping point. Two things are going to happen now. First, nothing is going to happen. Once people start to realize that these two states aren’t going to burn up or destroy themselves, more people in other parts of the country will realize there is no reason for their own states to not pass similar laws. Second, politicians in other states will see the massive amount of money that Colorado and Washington are going to be making by taxing the plant rather than banning it. They’re going to start to think about all the things they can do with the extra money. Moreover, by not having to waste resources on policing the law, they’ll save even more money.

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