Doing Justice, What Every Prosecutor Should Remember

I recently represented a client who was charged with possessing a stolen car. The issue was, however, the car was not truly stolen. Through a set of circumstances that are too involved (and uninteresting) to describe here, we were able to uncover evidence that showed my client did not do it. This information was given to the prosecutor (to remain nameless) and verified to be accurate. The prosecutor said that he would offer a plea to a violation (disorderly conduct) in light of the new evidence. I asked him why he would require a plea when my client is innocent to which the prosecutor responded "I have to get something."

A prosecutor is supposed to be held to a high standard, to do justice. Having to get a conviction simply because someone was arrested is contrary to the District Attorney's ethical obligations as well as duty to represent the People of the State of New York in a fair and neutral manner. Having been a former prosecutor in Monroe County, I understand that for the most part the Assistant District Attorneys responsible for prosecuting criminal cases want to do what they believe is right, however I also understand that many prosecutors are pressured by office policy and politics that question the use of prosecutorial discretion. I do not believe that the prosecutor that said he had to get something from a case that clearly warranted dismissal reflected the official opinion of the office, but I do believe it was a result of the culture that has been created by not giving ADA's and their bureau chiefs the discretion to "do justice."

My client was ultimately cleared by the Grand Jury (after having the case hanging over his head for almost 6 months). It is unfortunate, however, that the prosecutor would not make the right decision and exercise his authority to use discretion.

Expanding the Use of RICO: The Ends do not Justify the Means

The United States Department of Justice along with federal and state law enforcement have breathed new life in to an old statute called the Racketeer Influenced Corrupt Organizations act of 1970, commonly referred to as RICO. On July 7, 2011 a federal jury returned guilty verdicts against 3 individuals who were accused of, among other things, conspiring to engage in a pattern of racketeering activities through participation in a criminal enterprise. The criminal enterprise was an alleged street gang called Chain Gang or Wolf Pack. This trial was the first of its kind in the Western District of New York. The use of RICO against alleged street gangs is becoming more common across the country.

Even if you have never seen the practical application of RICO at trial, you may already associate the term with the Mafia. The statute was inspired by and originally intended for use as a tool to combat organized crime. The traditional criminal enterprise had a definable structure with leadership, ranks and positions. They commonly had a financial purpose, rules for membership and participation, and everyone functioned within their role for a common goal. Keep in mind the context in which the law was written. If you compare the traditional criminal enterprise to the typical "street gang" in Rochester, New York you will find few similarities. Then how is it that a statute designed to combat organized crime can be used against 15, 16 and 17 year old kids? The broadly worded language of the statute combined with generous judicial interpretations of the law have led to what prosecutors have called a "powerful tool" to combat street level drug trafficking and violence. Not only is RICO a powerful tool, but it is a powerful weapon that if not applied in the proper context can lead to kids being wrongfully accused and convicted of something they did not do. Many convictions under RICO carry with them a mandatory life sentence. One act of attempted murder, for example, carries with it up to 25 years in New York State. If multiple defendants are lumped together and held accountable for everyone else's actions, the combined bad acts that make up the "pattern of racketeering activity" drastically increase the potential sentence upon a conviction. Under RICO, the law makes no consideration as to who is more or less responsible.

Some say they do not care. If they rid the streets of drug dealers and violence then it works, right? Not so fast, this "ends justify the means" analysis has brought grave consequences to innocent people throughout history. Just because you might agree with an outcome in one situation does not place a limit on how the government might wield it's "powerful tool" in the next case. The use of RICO can just as easily be targeted in the suburbs as it can in the city. Parents of a child who has fallen in to a lifestyle of addiction might find themselves in a position of watching their loved one be associated with a criminal organization, as the law defines it, namely the individuals who the drugs are being purchased from. Given the loose wording of the law and the expanding interpretation of what qualifies as a criminal enterprise, individuals who might never have made a deliberate choice to participate in a corrupt organization might unwittingly find themselves facing charges more serious than they could have ever imagined. I believe this is the case with many alleged street gang members. RICO is an expansion of the government's ability to sweep more people under one umbrella. Even though each individual can be prosecuted for the wrongs they are accused of, the government can get more bang for their buck with RICO. Every person, however, accused of a crime, has rights fundamental to our way of life. What more powerful weapon can there be to rid our streets of violence than to do away with the constitution? What more powerful tool in the battle against drug trafficking than to do away with the 4th Amendment? The ends do not always justify the means. The means in this case is the broad language and interpretation of RICO. I believe a closer examination of the purpose and language of the statute must take place to avoid wrongful, unfair convictions and sentences.

For an edited version of this post that was published in the Democrat and Chronicle visit http://www.democratandchronicle.com/article/20110717/OPINION02/107170322/RICO-laws-Youths-can-unjustly-severely-punished

Rochester receives "Shout Out" in NY Times article regarding changes in rules regarding judicial campaign contributions.

When I first started at the DA's office I recall being told that we could not engage in political activities such as helping on a campaign or joining a party committee. However the one curious exception was you could give money to a candidate. Within months of starting at the office I found myself attending political fundraisers for candidates I barely knew. The reason, everyone was doing it and it seemed like for some reason, as a lawyer you had to. With a number of years under my belt and now working in the private sector I have more of an understanding as to why. It is because everyone is doing it and it seems like as a lawyer, you have to.

The judiciary is not insulated from the political process nor the political pressures inherent in any elected position. Whether you are running for a 4 year term as a Local Court Judge or a 14 year term as a State Supreme Court Judge there will be "help" offered and received to win that coveted spot. Once you are "helped" there is a perceived and in some instances an expressed duty owed to those who were so kind as to believe in you.

NY Times