This is the second part of a multi-part blog post about how the Grand Jury in New York works and whether a defendant should testify in the Grand Jury. This is written for laypeople to understand and deliberately avoids legalese jargon to make it easier to comprehend. It also is not intended to serve as legal advice. The decision to testify in the Grand Jury is an important one and you should not substitute this post for the advice of an actual lawyer. If you want legal advice, hire a lawyer. With that said, Part One briefly described what the Grand Jury does and how it differs from a petit jury (also known as a trial jury). Part Two will focus on the actual logistical differences between the two kinds of juries and will address why the decision to testify at the Grand Jury involves a different kind of analysis than the decision to testify at trial.
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?
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.
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.
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.
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.
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…
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.
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.
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.