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Today I see a letter to the editor in my local Long Island paper that is sent by the District Attorney of Nassau County, Miss Kathleen Rice. Miss Rice, now in her first year in office, has started something new out here, called “case guidance”. It sounds kind of like the Big Brothers and Big Sisters who teach young children to read and write. Only in this case the “guidance” will be given to cops because, according to Miss Rice, they need it when drawing up their court complaints against their arrestees. She says “this assistance …is designed to ensure the legal sufficiency of cases at the arrest level before an expensive trial and before the taxpayers have spent significant resources incarcerating a defendant.”
This concern for economy is very welcome of course, especially since the D.A. hired her sister-in-law for a major job in her office, for which she’s getting $5,000 more per year than the previous incumbent, and $30,000 more per year than she got in her last job. After that you gotta cut costs someplace. Apparently she believes the way to cut costs is to prevent the police from prosecuting hopeless cases and locking up people for no good reason. It’s impossible to see what else she could mean by her talk about expensive, presumably useless, trials and avoidable costs of locking up defendants, presumably innocent ones. Certainly she can’t be trying to say money is wasted when guilty defendants are tried or jailed. Cost-cutting can’t go so far as to eliminate these costs. But she obviously believes it should be done with regard to the, ah, groundless, fraudulent
-- what word shall I use? -- cases brought by the police.
This is what she implies, although she doesn’t actually name any such cases that have come to her attention. Maybe she’s just afraid that one will pop up sometime and she wants to be ready if it does. Preparedness is a good thing, as long as there’s reasonable cause for it. Preparing for non-existent dangers ignores the advice of General Patton, who told his officers to consult their hopes, not their fears, if they wanted to win battles.
Just what is the D. A. up to here, anyway? It may be something completely innocent and I may have misread her language, but on the other hand she may be up to that old D.A. trick of spinning the numbers to improve the bottom line, which for a district attorney is the conviction record. The way to achieve this is to avoid losing cases if at all possible, so as to produce a winning record. One of the best ways to accomplish this is to avoid overcharging defendants and instead charge them with lesser degrees of the crime they committed, thereby eliciting a guilty plea or a conviction by a jury.
“Overcharging” is something cops do, if you listen to the district attorneys. The cops aren’t legal scholars, you see, and they don’t know any better than to charge people with crimes as they’re itemized in the Penal Law, not as they’ve been informally amended by the operations of defense counsel, judges and, yes, district attorneys. For example, the Penal Law says “A person, with intent, who causes physical injury to another by use of a deadly weapon or instrument” is guilty of assault as a felony. The naïve cop therefore charges his prisoner with a felony for using a baseball bat. But when he gets to court, he is briskly informed that he has only a misdemeanor since no skin was broken. Some cops don’t take this as well as they’re expected to do. Sometimes a dialogue like this ensues:
Cop: “Waddya mean, breaking the skin? That’s not in the Penal Law.”
D.A: "Well, that’s how we do it here.”
Cop: “I never heard of it. Who dreamed it up?”
D.A: “Oh, all of us. DA’s, judges, defense counsel…”
Cop: “Defense counsel? They running things here?”
D.A: “No, but…”
Cop: “Listen, you go ahead and reduce the charges all you
like. But I'm not signing the affidavit, got me?”
In the eyes of cops and often of crime victims, district attorneys are congenital compromisers, who are always ready to make a deal that will get them a quick conviction and another notch on their gun. The victims are likely to react to this after the cops have forgotten about it. This is because the police involvement in the case usually diminishes after the initial arraignment -- where conversations like the one above do sometimes take place -- and things are left in the hands of the district attorney, with only the friends and relatives of the victim to harass him. Since in many cases he’s also being harassed by the friends of the perpetrator he’s likely to bend in the direction of a compromise in almost any case.
There are lots of cases that fall outside these boundaries. They are the ones that originate with the police or the district attorney, such as organized crime investigations, stock swindles, government corruption, accident rings, medical scams and the like. Basically the complainants, if any, are only of secondary importance in these cases and the real complainant is the government. If there is any negotiating to be done it’s between the government and itself.
Another major exception of course is any case involving murder of a cop. Even here cops at one time came to feel that their interests weren’t being protected by the courts. Now they have corrected that situation by making sure to flood every killer’s courtroom with a large delegation of police in uniform glaring at the suspect. Since the Supreme Court has now refused to bar courtroom audiences from wearing buttons with victims’ pictures on them, this tactic might begin to be used as well,
Returning to the letter which begat this commentary, I just can’t help being suspicious of the motivations of the District Attorney who wrote it. She sugar-coats her message with a raft of compliments to the “hard-working” police “risking their lives” for the rest of us, while at the same time she’s suggesting they don’t know what they’re doing and justice isn’t safe in their hands. With her scheme, defendants will get the “improving [of] due process” and it’s also “a win for [those] who believe their charges are unjust“. This last category takes in 100% of all arrestees. But it’s all right, I guess, because she says her new deal will allow her office to “complement these cases at the outset.” Do you know what that means? No more do I. But I fear the worst. | | |