Sarena Straus' Blog

My Day At Monticello Motor Club - What Car Racing and Child Safety Have in Common

2011-09-26T18:24:00.000-07:00

What do car racing and child safety have in common? More than you might think. This Sunday, I spent the day at Monticello Motor Club ("MMC"). MMC is a premier automotive resort located in Monticello, New York. While normally, the club caters to its private membership and car racing club, this week they opened up their doors to train parents and nannies in the art of accident avoidance, changing tires and car seat installation.

Our day started with a lecture on basic concepts of car safety - information about how weight is distributed across the tires during acceleration, steady state and braking as well as how conditions like ice and wet roads affect the car's performance. Next we got to hit the track and practice weaving, high speeds to hard breaking, collision avoidance, and so forth.

In the afternoon, we took our lesson inside and heard from a fire fighter about car safety. The most important tip of the day: If after an accident, it's safe to leave your child in the car seat, you should. When emergency workers arrive, they will cut the belt or tethers and take the child out of the car in the seat, so they remain confined and stationary. This can avoid the potential of further injury that removing the child from the car might cause. On that note, if you are at the scene of any accident and it's safe to leave the victim in the car (i.e. no oncoming traffic, nothing dripping from the car), you should do so. Removing an injured person from a vehicle can exacerbate their injuries.

Next, we took a look out our cars and car seats. The seats were checked for proper installation (all tethers and latches attached, no more than 1 inch of play in the seat). We reviewed current recommendations for infant car seats (keep them rear facing until they are 2 years old if possible). We also learned how to check our tire pressure and determine what pressure our tires optimally should have (it's inside the driver's side door in case you didn't know). Some of us (not me of course) were WAY off. We also checked our spare tires to make sure all equipment was present to replace a tire and to tow the car (my tow hook is missing!)

In the end, a lot of what we do in a car has to do with instinct and often, our instincts are not right. Will a couple of hours on a track teach me to overcome some of my bad instincts? No. It takes a lot of practice to make these skills second nature. A program like this starts to help you become aware of what you are doing right and wrong and most importantly, it's a controlled environment where you can learn what you and car car are or are not capable of. If you have a chance to spend a day at the race track, I highly recommend it. Not only is it fun, but it actually could make you a safer driver.

In the meanwhile, keep on top of the current safety recommendations for your cars, car seats and for assisting others in distress. Drive Safe!

I'll Be Back Soon!

2011-09-20T12:43:00.000-07:00

Please excuse my absence from blogging as I try to recover from the flu, catch up at work and finish rewrites of my novel. In the meanwhile, I've been getting lots of great comments from readers - please scan them and add your own comments...I always like to hear the points of view of others! What great readers I have...thank you!

Savvy Authors - Time Bandits by Sarena Straus

2011-09-03T17:52:00.000-07:00

Savvy Authors - Time Bandits by Sarena Straus

Today I'm a guest blogger on Savvy Authors giving tips on how busy people can find time to write!

What are your tips and tricks?

Losing Gamer and Savvy Authors Updates

2011-08-23T08:10:00.001-07:00

Today I'm a guest blogger for The Losing Gamer. She interviewed me about being a writer and work/life balance (what's that?)

Also, don't forget to sign up for my Savvy Authors webinar on How To Complete Your Novel When the World Conspires Against You - It's tomorrow at 8 pm EST

Strauss-Kahn - Defending the Manhattan DA's Office

2011-08-22T11:04:00.000-07:00

I’ve been following the Dominque Strauss-Kahn case in the news, but as I often am, I’m focused on aspects of the case that relate directly to the prosecution. In this case, what I keep coming back to the the behavior of the Manhattan DA’s office.

There has been a lot of criticism about how the Manhattan DA’s Office handled the matter - mostly what they did wrong. I don’t want to hop on that bandwagon, nor do I want to defend them (oh wait, yes I do). But rather, I’d like to share a little bit about how a DA’s office would generally handle the accusations of an alleged sexual assault victim (complainant) under the following circumstances:

(a) There is DNA and other evidence corroborating the claim of sexual assault.
(b) The defendant lives outside of the US and is on a plane, getting ready to leave the country.

When a complainant comes forward with a claim, the police generally do the first round of interviews and make initial assessments about the credibility of the victim. Top of the list is to determine whether there is any corroboration for the claims. Are there any witnesses (usually no, especially in a sex case), is there any physical evidence of force, such as cuts or bruises, and is there any other corroboration?

In a case like Strauss-Kahn’s, you might be doing things like checking the complainant’s work schedule and room assignments to make sure she was at the hotel when she says she was, that she was or could have been in that guest’s room when she claims the incident occurred. You’d also be checking the defendant’s schedule for the same.

In this case, not only could the complainant, Diallo, have been in Strauss-Kahn’s room, we know she was. There was DNA evidence of a sexual encounter, coupled with bruises to Diallo’s shoulder and vagina and rips in her pantyhose. In short, on first blush, this looked like a decent case.

Remember, there are only two real defenses to a sexual assault case.

1. It didn’t happen.
2. Consent. In the case of consent, the only defense to injuries is the “rough sex” defense. I can’t tell you how many times I heard that one.

Let me add to this equation my understanding that Diallo made an immediate outcry to hotel staff and that when detectives arrived at the hotel room moments later, the head of the IMF had already left the hotel, leaving behind his mobile phone and other personal items making it look like he “got out of there in a hurry”. (NYPD spokesman, Paul Browne).

So, round 1 goes to the prosecution, because when you have (a) plus (b) above, you make an arrest. Otherwise, the guy might not be around to be arrested later, especially if he did something naughty.

To those who say the prosecution did not adequately investigate the complainant prior to authorizing the arrest, I point you back to (a) and (b) above and say that from what I’ve read, the prosecutions did exactly what they are supposed to do. They continued to dig. They followed up on leads. And they turned over any exculpatory evidence to the defense (unlike Nifong in the Duke case - see Blog here).

So, as we wait for what we can be pretty sure will be confirmation that the case is being dropped, let me add this: Just because the case is being dropped doesn’t mean that Strauss-Kahn is innocent. It means that the DA’s office no longer has confidence that they can prove the case. In this case, that loss of confidence stems from too many issues with Diallo’s credibility as it relates to other events in her life and other things that she and her team have done to undermine the case.

I can also say from experience that while the victim of any crime has a right to speak to whomever they wish and to file civil charges, we prosecutors really don’t like that. Especially when you are dealing with a case where a key part of the defense is going to be financial gain, filing a civil case, as Diallo did earlier this month, and speaking to the press, really undermines the prosecution’s case. I had plenty of cases when I was at the BXDA where civil charges were warranted, but I never had a case where the complainant was unwilling to wait for resolution of the criminal charges first. They understood that it would give the defense an argument.

When you put the “financial gain” defense together with Diallo filing a civil claim and her credibility issues, this case has to be dismissed.

This is not a blame the victim thing either. This is the painful truth. And let me add to the mix that while under New York law, evidence that demonstrates the complainant’s lack of credibility most likely would be admissible, evidence that the defendant might have committed other similar crimes almost certainly would not. For example, the prosecution would not be allowed to introduce two claims of sexual assault in France, including one by French journalist, Tristane Banon, who accused Strauss-Kahn of attempted rape, where she claims he “jumped on her and behaved like a rutting chimpanzee”.

So, my verdict on this case is Strauss-Kahn innocent or guilty? I don’t know.

Prosecution: Innocent.

What do you think of the Strauss-Kahn case? Did Diallo and her lawyers undermine their own claims? Will they succeed on civil charges? Is the Manhattan DA's Office right to drop the case?

Shantaram by Gregory David Roberts - Likable Criminals

2011-08-18T11:28:00.000-07:00

At any given time, I’m reading about three books. There is the book of my choice, either in paper or on my Nook. There is my book club book. And there is the audio book that I’m listening to during my 2 hour daily round trip commute...

I downloaded Shantaram, by Gregory David Roberts, based on the excellent recommendations on Audible.com. Let me first say that Shantaram is not a novel. It’s an epic. A tome. A veritable goliath of text…well…you get the idea. It’s just short of a thousand pages and a whopping 43 hours of listening (only 18 hours to the abridged version, which I usually hate, but in this case, might have merited consideration).

It’s not an easy feat to keep anyone really engaged over the course of a book that long. But in spite of some weaknesses, especially toward the end of the book, I have to say that Roberts did a remarkable job. Overall, Shantaram is a wonderful book. I will also add that the narrator, Humphrey Bower, was really excellent. It’s hard not to get sick of someone’s voice after 43 hours, but Bower was great.

So now to the part that’s actually relevant to this blog. Shantaram is largely based on the real life story of Roberts, who escaped from prison in Australia in 1981 and went to India, where he became part of the Indian Mafia. His true life timeline is here, but to summarize, he was eventually rearrested in 1990 (like most convicts, he got caught because he got cocky and thought it would be a good idea to become a Bollywood star and join a rock band) in Germany and was sent back to Australia where he spent a whopping 2 years in solitary – I have to imagine that writing this novel is what kept him sane (and made it so long).

There is a part of me that thinks Robert’s real story – his memoire – may have been more interesting then the novel. Why fictionalize such a fascinating story? And although the novel is really excellent, parts don’t ring true while others feel authentic and I wondered if that’s because the true parts felt that way. (Also, he did not just use, he abused the word “heart”). In any event, the character, be he Roberts or be he the fictional main character in the novel, Linbaba, is a double edged sword. A killer with a heart of gold. A con man with a moral code.

Being a prosecutor is not a black and white world - the law is all about shades of gray. There is the line, for instance, between what is a crime and what is self defense. They is also flexibility to, for instance, put a first time drug offender in a rehabilitation program instead of in jail. In other words, there is room in the law for forgiveness and for compromise. But even in a world of compromise, and as likable as he might be, Linbaba, and Roberts, are the kinds of criminals I would put in jail.

Linbaba’s crimes are not shades of gray. He laundered money. He supplied hashish to tourists. He went to Afganistan and killed people for the head of his mafia even thought it wasn’t his war and he didn’t care about it. But he is still somehow likable because he sets up a medical clinic in the slums, it generous with his stolen money and falls in love with everyone and everything he encounters. His division of the mafia has a moral code. They will launder money, but they won’t sell drugs (Linbaba does this on his own) or sell women. They will, however, beat to near death or kill people if they deem the punishment fitting of the offense. But on the other hand, if it weren’t for them keeping the neighborhood safe, the locals would be left to the even more corrupt police. So the mafia is the lesser of the evils.

When I think about Linbaba (Roberts) and why I like him and how I can reconcile liking him with knowing I’d prosecute him, I always come back to the same case. It’s a case I wrote about in my book, Bronx D.A.: True Stories from the Sex Crimes and Domestic Violence Unit. Basically, the defendant, we’ll call him Marco, had served fifteen years to life in prison under the Rockefeller laws. (If you don’t know what those are, click the link and read a little. Those were some seriously harsh laws). Anyhow, he’d been drug free and problem free for almost ten years. He had a job and a wife and step daughter. In short, Marco had really rehabilitated himself - not something you get to see too often.

His step-daughter, we’ll call her JoAnne, was dating a batterer (“John”). One day, JoAnne came home from a beating and John followed after. John was banging on the door and Marco cracked it open and told him to go away. When John kept trying to force his way in, Marco took a kitchen knife and stabbed his arm. When he still kept trying to get in, Marco opened the door to confront him and John attacked. Marco stabbed him. John ran away. Marco chased him and stabbed him another 22 times in the back. John lived (because you can’t kill a cockroach) and plead to some kind of misdemeanor charge for beating JoAnna. I had to prosecute Marco for attempted murder.

I knew what Marco did was wrong. Once John started to run away, it wasn’t self defense any more. He should have stopped. He should have turned around and locked the door and called the cops. But I’d be lying if I didn’t say a big part of me wanted to lose that trial. A big part of my wanted to the jury to acquit. I actually believed that the better man went to jail - Marco committed a crime that not only could I understand, but that I would maybe commit myself if it were my child at risk.

Can you like a criminal? Yes. Can criminals be good people? Yes, they can. Financial crimes have been committed by some of the most charitable people out there. So what’s my point? I don’t know. These are just the things that keep me up at night. I hope you’ll take the time to read Shantaram and let me know what you think.

Who’s your favorite criminal?

Ironman Zishe Breitbart and the Importance of Folklore

2011-08-12T08:26:00.000-07:00

Those of you who’ve known me since my college days might not be surprised to know that I’m related (albeit distantly) to a famous circus strong man....
While I never bent iron bars with my bare hands or walked on a bed of nails like my famous ancestor, Zishe Breitbart, I was bench pressing and squatting impressive pounds of iron, especially when I was training with my bodybuilder brother (He was successful in competition. I should have stuck to power lifting).

Zishe was a Polish circus performer, who, in the 1920s, was known as the "Strongest Man in the World" or Eisenkönig ("The Ironking"). He was a blacksmith and an Orthodox Jew who toured with Circus Busch, possibly the largest circus in the world at the time.

According to Wikipedia, here are some of Zishe’s acts: “He bent iron bars around his arm in floral patterns, bit through iron chains or tore them apart. He could also break a horseshoe in half, hold back two horses who were whipped, pull a wagon-load of people with his teeth or support enormous weight, such as an automobile loaded with up to 10 passengers, while lying on his back....[he would support] a bridge...built across his chest [as] heavy animals (bulls, an elephant, etc.) paraded over it. He...[supported] a moto-dome in which 2 men chased each other on motorcycles on his chest. Three tombstones were placed on his chest while two men hammered away with sledgehammers. He lifted a baby elephant, and while holding on to the elephant, he climbed a ladder and held a locomotive wheel by rope in his teeth while 3 men were suspended from the wheel.” Now that’s strong.

Last year, when I was in LA selling my book Bronx DA to CBS/Paramount as a TV pilot (I'm just going to say that as often as I can, 'cause it's cool), I met my cousin, Gary Bart, for the first time. Gary has spent fifty years of his life researching Zishe and collecting memorabilia about his life. He was one of the producers of the Werner Herzog 2001 film Invincible, a fictionalized account on Zishe’s life (If you haven’t seen it, you should. It’s a terrific film). This summer, he collaborated with the curator of the Judisches Museum Wien (The Jewish Museum of Vienna) on the Breitbart exhibition and Kar Ben publishing put out a children’s book called “Zishe the Strongman”, portraying Zishe as a gentle giant who never used his strength for violence, but only for good.

While this portrayal of Zishe might not be totally accurate (he was a militant Zionist), I’m not sure that matters. And this brings me to how this could possibly have anything to do with crime (I know you were wondering).

Understanding crime is as much about crime itself as it is about redemption. Especially when we are talking about particularly heinous crimes, we seek the silver lining: The survivor in the rubble, the missing child found years later, love in the midst of tragedy. And what greater crime is there than Genocide?

Herzog’s film places Zishe in Germany in 1932, seven years after he died (Tetanus). In the film, Herzog uses Zishe “to create an allegory of human strength, knowing oneself, and honesty and pride in one's heritage.” (Wikipedia). Eventually, movie Zishe foresees the Holocaust and goes back to Poland to warn the Jewish people. Unfortunately, no one believes him but the film (SPOILER ALERT) leaves you with the understanding the Zishe’s brother survives the Holocaust.

As far as folkloric heroes go, I’m pretty happy with the current Zishe of fiction (and I think I might have been pretty okay with the real Zishe too). He’s a gentle giant who stands up to a great evil and takes pride in his heritage. Thanks to the Herzog film, he may inaccurately be more remembered for bringing hope and pride to people in desperate need of a hero then for who and when he really was. But that’s okay too...folklore is, after all, more about the moral of the story then the accuracy of the story itself. We need our legends of hope and survival in the face of great tragedy.

And I think it’s cool to be able to tell my kids that they are descended from someone who bent iron bars with his bare hands and played the cello and was kind to animals....Zishe started at age three with a nine pound hammer in his father’s blacksmith shop and my two year old son is already pushing around some impressively large boulders and my daughter can get our twenty pound kitchen ladder across the room, while barely scuffing the floor...who knows....It’s in our DNA. Strength and kindness are a pretty good combination if you ask me.

Who is your favorite folklore hero?

Related Links:

J-Grit.com: The Internet Index of Tough Jews: Particularly the story of Hannah Szenes, a woman paratrooper and undercover operative who during World War II was dropped behind enemy lines - she withstood extreme torture, never giving up her comrades, and was killed by a firing squad at 23. She wrote "Eli Eli".

FBI New Missing Kids Child ID App - Review

2011-08-10T11:56:00.000-07:00

A friend of mine was at an amusement park with his nephew. He turned around for just a second and his nephew was gone; lost in the crowd....
Thanks to a picture he'd just taken with his phone, he was able to show park security what his nephew looked like and was wearing at the time he got lost. The child was located within 30 minutes. Happy ending to a scary story and one that illustrates the importance of having a readily available, clear and current photo of your child (or one in your care) at all times.

Which brings me to the question of what does the new FBI Child ID App do that your smart phone doesn't already do and is this a good idea or a bad idea in disguise?

First things first. What does the FBI have to say? Here is a summary, or you can link to the FBI page here.

"Our just launched Child ID app...provides a convenient place to electronically store photos and vital information about your children so that it’s literally right at hand if you need it. You can show the pictures and provide physical identifiers such as height and weight to security or police officers on the spot. Using a special tab on the app, you can also quickly and easily e-mail the information to authorities with a few clicks. The app also includes tips on keeping children safe as well as specific guidance on what to do in those first few crucial hours after a child goes missing."

Second things second, what are users and reviewers saying about the app?

The number one complaint coming from users is that the app doesn't have a password. First of all, you should have your iPhone password protected regardless, otherwise all kinds of information is readily available to anyone who finds it. That said, requiring a second, different password wouldn't be the worst idea. If nothing else, if your children are like mine, they've known how to use your phone since before they could talk and guess who is most likely to press those call 911 or contact NCMEC (National Center for Missing and Exploited Children) buttons...

Child aptitude aside, any remotely savvy hacker can get past your password anyhow and you are already storing important information on your phone. Most child abductions are by family members and they will know the child's info already. Also, your phone will most likely be with you, not your child. If a child is abducted by a stranger, it will tend to be a crime of opportunity and the person who grabs a child because they are lost at the amusement park is unlikely to also (a) have your phone, and (b) have time to hack it. The only information stored on the Child ID app that is of use to a predator is the child's name. Again, easier to get some other way.

In short, I'm not persuaded that access by a hacker to a phone is enough of a reason to not keep vital info about a child handy. Are there strangers who target certain children for abduction? I'm sure there are. But if a predator is that hell-bent on getting information about a child, they have lots of ways to get it and your iPhone is most likely the least of your worries. It's going to be a lot harder to get an iPhone away from someone and hack into it hoping that they have the FBI Child ID app on there than to simply hack into one of the many social networking sites where people post lots of personal information. The odds that current photographs and information about your child stored on your iPhone will be needed by you in an urgent situation are much higher then the odds that some stranger will get a hold of your iPhone and use that information to get at your child. Someone who steals your phone is more likely after (a) your credit card and bank info, and (b) just wiping out the phone and reselling it on Ebay. If you are worried about how the info on your phone will be used if it's stolen, enable a remote wipe. (And if a predator has your iPhone, then use Find My IPhone!, which also has the remote wipe functionality.)

Users are suggesting a lot of other functional improvements, but I'm going to skip addressing those issues since it's not really relevant here. Although I do think ability to store fingerprint images is a good suggested improvement. I would suggest another feature to store pictures and information about suspected abductors, including possible vehicle info.

Does this App do anything that you can't do on your own? No. The App stores your child's information in a single spot so that you have quick access to a photo, info about height, weight, gender, eye color, identifying marks, etc. It has quick buttons to call 911, which you can probably do faster outside the app. It also has a button to call NCMEC, which is information you might not have handy, so that's good. The app also includes some basic safety tips, which is never a bad thing, but is certainly information readily available elsewhere.

Here is where I get confused. The app purports to give you the ability to easily send info to authorities and this is where it was appealing to me. If I can have this information sent to local authorities and to NCMEC in the click of a button, that would be important in a missing child case. (Especially if they add my improvement of predator info).

I downloaded the app and created a test page (i.e. all fields say "test".) When I clicked "send" the app opened up an email with the information populated, but it did not automatically generate anything in the "To" field. You can open up your contact list, but unless you have email addresses for local law enforcement and the FBI in your contacts, you are going to have to look all of that up. At that point, wouldn't you just be calling 911 anyhow?

Long story short, for now, this app is good for central storage of vital info, but not much else. Most of us with iPhones already have lots of pictures of our kids, so for the sake of being overly cautious (which is a good idea with kids), if you already know your child's height, weight, identifying marks, etc., and since in an emergency, the first thing you'll do is call 911, you can just tell them this info over the phone and then find out where to send a picture. Even if you have email addresses for your local police and FBI stored, I doubt the email would go anywhere useful unless the FBI is going to add vital contact info as a feature of this app that would create an inbox that gets looked at immediately. You're going to call 911, not send an email. Period.

In my humble opinion, this application as it stands might not be super risky, but I'm not sure it's super useful either. Once improvements are made and other features added, as I'm sure they will be, I may change my opinion. But for now, I'm not a fan.

What's your opinion?

Related Link:

Back To School - Child Safety Top Ten List

Top Ten Songs Related to Crime

2011-08-04T14:39:00.000-07:00

So, I'm on vacation with spotty Internet access (the horror!), ergo my absence from blog land this week. So with the few short minutes I have and the limited amount of brain power I'm using at the moment (I've just finished rewriting 30 pages of my YA novel, so cut me some slack)....
here are my favorite songs about crime or using the word crime (not necessarily in this order) (this is a really loose list):

Fiona Apple's "Criminal": What I need is a good defense, cause I'm feelin' like a criminal
Boogie Down Production's "Criminal Minded" (I'm dating myself here): "Criminal minded, you've been blinded"
Britney Spears, "Criminal: Okay - I never actually heard this one until now, but you gotta' love this: "But mama, I'm in love with a criminal....And he's got my name tattooed on his arm..." So, I guess that's all it takes.
Jane's Addition, "Been Caught Stealing": "I enjoy Stealing. It's just as simple as that. When I want something, I don't want to pay for it. I walk right, through the door...." Awesome.
Marley - I Shot the Sheriff - of course. If you don't already know the lyrics then you are musically, seriously deprived.
Almost anything by Johnny Cash
AC/DC "Jailbreak": "Heartbeats they were racin', freedom he was chasin'. Spotlights, sirens, rifles firin'. But he made it out. With a bullet in his back."
Tom Jones, "Delilah": "I felt the knife in my hand and she laughed no more..." A very upbeat sounding song with seriously, deceptively dart lyrics once you start listening. Yikes.
Led Zeppelin, "Gallows Pole": "Oh yes, you got a fine sister, She warmed my blood from cold, She warmed my blood to boiling hot to keep you from the Gallows Pole. Your brother brought me silver, Your sister warmed my soul, But now I laugh and pull so hard, see you swinging from the Gallows Pole."
And the number 1...or 10...sickest, weirdest song I can think of about crime is brought to you by The Smiths. "Bigmouth Strikes Again." "Sweetness, sweetness I was only joking When I said I'd like to smash every tooth In your head. Oh ... sweetness, sweetness, I was only joking When I said by rights you should be Bludgeoned in your bed."

What are your favorite songs about or loosely related to crime?

Novel Writing Webinar on Savvy Authors

2011-08-01T13:37:00.000-07:00

On August 24 at 7 pm EST, I will be hosting a Webinar on How to Complete Your Novel When the World Conspires Against You. As a mom of two and a full time attorney, I know how hard it can be to get a novel done. I will be sharing tips and tricks for successfully completing your novel on time and without losing momentum or inspiration. Please join us!

Sarena Straus' Blog Gets and New Slogan

2011-07-28T10:12:00.000-07:00

I like to fancy myself a renaissance woman. You’ve heard of renaissance men…well that’s me…but female. It’s not that I can’t decide what I want to be when I grow up, it’s just that I want to keep trying new things. Jack of all trades, master of…some...

There are, for certain, constants in my life. I’ve dabbled in many things – bodybuilding, snowboarding, I even took a race car driving lesson at the Monticello Motor Club. I’ve done amateur photography most of my life and I’ve been a singer.

But there are things in my life that I’ve tried and never given up…couldn’t give up if I wanted to. Like they are in my DNA. The law, for one. Writing for two. Scuba diving for three.

Even within these constants though, I have wanderlust. Each area is so chock full of possibility, why should I just stick within some kind of narrow parameters? I’ve tried warm water diving, wreck diving and cold water diving and I’ve loved them all. I’ve practiced criminal law, employment law, regulatory law and transactions. I’ve published a non-fiction, true crime memoir called Bronx DA. And I’ve just completed an adult crime novel called “The Collectors,” and a Young Adults dystopian novel called “Assimilation”.

Which all brings me back to my blog. Some of you have noticed some changes on my blog. I’ve cleaned up the look and started creating snippets for old posts so that they are easier to navigate. And while my URL hasn’t changed from sarenastraus.blogspot.com (although I’m thinking of migrating to WordPress…thoughts?), I have changed my blog name to Sarena Straus’ Blog instead of Prosecutor Post-Script (why? Because Kristen Lamb told me to...see number 6).

And today, I’m unveiling my new tag line because while I am a “former prosecutor and author” who “pontificates” on crime, writing and other things, that’s just too long.

So, I wanted to boil it down to the common threads in this blog…the topic that sank its teeth into me years ago and never let go and that’s crime. And what I’m trying to do here…which is talk about crime in all its forms and demystify it for you. Whether it’s about why crimes happen, or how to avoid being a crime victim, or how to protect your children from crime, or books about crime, or writing about crime…I’m unblinding justice for you.

So, drum roll please, my new slogan for Sarena Straus’ blog is…Criminal Minded. Justice Unblinded.

I’m tearing the blindfold off of justice. Sometimes you won’t like what you find under there and sometimes you will. But either way, I think you’ll be glad to know.

Any graphic designers out there want to create a logo for me?

Back To School - Child Safety Top Ten List

2011-07-27T18:23:00.000-07:00

Talking to children about safety is a frightening thing for parents, but is the single most important things parents can do to increase the safety of their children....

The beginning of a new school year is a great time to reinforce safety rules with your child and to update the rules based on your child's age, increased ability to understand more complex rules, and increasing freedom and Independence.

Talking with children about dangers that exist, even role-playing various scenarios with them, is the most important thing you can do to protect your child. The new school year is also a great time to fingerprint your child if you have not already done so and to make sure you have current photographs of your child.

Here are my top ten safety tips and resources:

1. Always keep an eye on your child. Just because you live in a safe neighborhood does not mean that this rule does not apply to you. Predators are opportunists and look for children in crowded areas when parents are not nearby or paying attention. If you have a child that is particularly prone to wandering off, you may want to consider a child GPS tracking device. Some of these devices offer a feature that warns you if your child wanders past a pre-programmed distance from you. Remember - any kind of tool has is limitations and is no substitute for education and vigilance.

2. Instruct your child not to walk up to a stranger’s vehicle for any reason. Predators frequently lure children by asking for help . Role-play this with your child. Instruct your child to tell a trusted adult immediately if they are approached by a stranger or if a friend is. Report all of these incidents to your local police along with as specific a description of the person and vehicle as you are able to provide.

3. Teach your child how to dial 911. Discuss with your child what an emergency is and when they would use this number. A young child may not understand this right away and may use the word "emergency" loosely. Just be patient and keep explaining what is and is not an emergency. Eventually they will get it.

4. Keep an especially close eye on children using the Internet. Depending on your level of tolerance for the privacy of your youngster, there are many monitoring tools that you can use and also security tools that let you block certain sites. While I don't suggest surreptitiously monitoring your child if you have no reason to believe anything is wrong, tell them that if they are going to be on social networking sites, you will look at their page and tell them your expectations. Tell them that not talking to strangers applies to the Internet as much as anywhere else. Share with them the long term ramifications of posting provocative pictures and the like. Teenagers have very little understanding of long term consequences. Be specific. If you have a child who drives, car GPS tools can alert you if your child leaves a designated area or speeds. Once again, if you are concerned about your child feeling that you do not trust them, I see no reason to not tell them that the GPS is in the car - it may be a more effective deterrent than sneaking such tools on your child's computer or vehicle and causing mistrust.

5. The stranger danger message is the most commonly used and least effective tool we to keep our children safe. Rather than telling your child who they cannot talk to, tell them who they should go to if they need help. If your child is lost, they should seek help from uniformed law-enforcement or security officers, a store salesperson with a name tag, the person in an information booth at a mall or other public venue, or a mother with children. For more information on Stranger Danger, please follow this link. For other great ideas on child safety including free downloads of instructive children's books, child ID kits and testing of your own child safety IQ, go to Power of Parents.

6. Here is one that really upsets me every new school year. Don’t put visible name tags on your child’s bike or backpack or have their name embroidered on their clothing or backpack. I know it's cute, but one way that predators gain a child's trust is calling them by name. This risk has been well publicized, yet major chains still insist on putting money before safety and offering monogramming and name embroidery services. Please tell companies that offer these services that they are putting children at risk and maybe they will stop! (This means you, Lands' End, L.L. Bean, and Pottery Barn Kids!!)

7. If your children stay at home by themselves, instruct them not to answer the door and to screen phone calls. Test them by calling sometimes.

8. If your child is in a dangerous situation, instruct them to yell, “This is not my Mom/Dad!”

9. Make sure your child knows their full name, address and phone number as soon as age appropriate.

10. Instruct your children that if someone comes into their room late at night, to scream and make noise no matter what the intruder tells them. Tell your children that if anyone, even someone they love or is related to, is hurting them in any way or doing things they don't like, they should tell you. Reassure them that even if someone tells them that you or they will get hurt if they tell, you will be fine and you will protect them. More than anything, it is important for your children to know that there will always be someone to help them if they need it and that they will not be in trouble for telling. Safety is more important than being polite or keeping secrets.

Happy and safe new school year!!!

Related Link and Tools:

My Body Belongs to Me is a wonderful book for children ages 3 and up. Written by my friend and a fellow child abuse prosecutor.

My previous three part series on child safety: Part I, Part II, Part III

The National Center for Missing and Exploited Children

Joy Behar Show - Caylee's Law - Appearing Tomorrow!

2011-07-25T12:54:00.000-07:00

I will be appearing tomorrow on CNN's Headline News with Joy Behar to discuss Caylee's Law and why I don't support this legislations. My article on the subject is here and I hope you'll join in the discussion! You have only about 24 hours to change my mind. The show airs at 10 pm EST.

Rupert Murdoch Phone Hacking Scandal - A US Analysis

2011-07-23T11:27:00.000-07:00

Guest Blogger Paul Parisi in at the Keyboard Today

Imagine this. A billion dollar corporation accused of an international scandal. The whistleblower that snowballed the investigation ends up dead under suspicious circumstances. ...
Numerous employees are accused of unethical, immoral, and ultimately illegal behavior. Their tales lead to the resignation and eventual arrest of a high level executive of the company and the resignation of several law enforcement officials including the chief of police. The questioning ends up in the country’s highest inquiry body where the CEO of the corporation is forced to explain his ruthless management style while investigations into his operations open up worldwide.

Now please fire up your iPad, unlock your smart phone, or simply flip on your flat screen. What sounds like the beginning of an entertaining suspense novel is unfolding before our very eyes. What would pass for a Hollywood blockbuster starring George Clooney and Reese Witherspoon in the States is unraveling across the Atlantic.

Rupert Murdoch’s multi-national, billion dollar journalism empire is crumbling around him based on allegations of bribery and illegal wiretapping in the U.K. Scotland Yard arrested the former head of Murdoch’s News of the World even while their chief resigned amid the allegations of endemic bribery. Sean Hoare, the man who first blew the whistle on reporters hacking into public and private citizens’ phones, has died although unreleased autopsy results confirm the death was not suspicious. Even the FBI has joined the fun and opened up an investigation.

It’s incredible and seems to be the tip of the iceberg. Where will this lead in the U.S.? Allegations abound that News of the World reporters hacked into voicemail accounts of 9/11 families, and even went so far as hacking into the voicemail of a missing 13 year old girl and deleting unheard voicemails to make room for more. If these allegations are true, other uses of illegal phone hacking will surface.

Murdoch’s media empire stretched from coast to coast. He owns over one hundred media outlets. There is no telling how far the hacking has gone. Who knows where it stretches? Is this the reason Hollywood reporters and magazines know personal information seemingly before their celebrity subject?

It is important to note that no one is accusing and there is no evidence that Rupert Murdoch was involved in any of this. If true, it seems to be a result of his undying demand for fresher and faster stories and his minions desire to increase sales.

So what happens in the U.S. if the allegations extend here? What are some of the legal ramifications?

It’s illegal wiretapping under the United States Code. Each instance is punishable by up to five years in prison and various civil damages to the injured parties. This punishment exists for those who did the wiretapping as well as those who directed it.
Bribing federal law enforcement officials is punishable by up to two years in prison and various fines under the U.S. Code.
At least in New York State, bribing state law enforcement officials is punishable by up to fifteen years in prison if the total amount paid is over ten thousand dollars.
The state law enforcement officer who received the bribe can also be prosecuted under state law and, in New York State at least, the punishment could be up to fifteen years in jail if the total amount received is over ten thousand dollars.
Bring on the lawsuits. Any person who these reporters listened to illegally will probably sue for monetary damages seeking enormous sums of money from one of the richest and most powerful men in the world claiming his negligent supervision fostered an environment where illegal wiretapping was accepted, if not directly authorized, by executives.
Can shareholders sue Murdoch’s company or Murdoch himself for the loss of value in their stock due to the illegalities? Only if they could show the company acted fraudulently. We can expect some suits of this sort to be filed at least. Whether they can be proven is another thing.
Congressional hearings – Senator Frank Lautenberg (D-NJ) has already called for an official inquiry into News Corporation’s U.S. operations based on a 2004 trial where a NewsCorp employee hacked into a rival marketing firm’s website and stole confidential information pushing the company to the brink of bankruptcy.

It’s easy to see the Nuremberg defense for the phone hackers – “I was just doing what I was told.” It’s not a defense, but may allow police and prosecutors to use the little fish to prosecute the big fish. It will be interesting to hear it unfold, and the biggest bombshells are probably yet to come.

What do you think will happen? How far do you think this goes? Congress increased competition by deregulating the telecommunications industry in 1996. Was this a wise decision in light of recent events?

Paul Parisi is a former Bronx Assistant District Attorney and is currently an assistant district attorney at an top secret location in New York State. Keep your eye out for his blog, coming soon!

Crime Sprees and Heat Waves

2011-07-22T08:39:00.000-07:00

There is nothing like a heat wave (or the Superbowl) to make you want to kill someone. And I’m not just saying that. I saw it with my own eyes. When it gets too hot out, or when people get too into their sports, someone’s gonna’ die....

I remember being called out to a crime scene during a Subway Series because one guys shot another guy right in the middle of the street. Mets Versus Yankees to the extreme. Maybe most people don’t get this. I mean, you can love sports but killing someone over them is a bit extreme. But I’ll tell you something that anyone can understand: Spend a little time in a housing project in the Bronx in 100 degree weather and you’ll want to kill someone too. Trust me.

And I’m not the only one who noticed. In 2009, the New York Times did an article on heat and murder. They analyzed various trend in homicides in New York City over about a thirty year span: Who is most likely to die and what is the weapon of choice? What they found to be the most consistent trend, even with the decline in murders, is that July through September is prime killin’ time. Steven Messner, a professor of criminology, speculated that the increased murder rate in the summer months results from increased human interaction when it’s warm. But I disagree. I think the heat just makes ya’ nuts. It makes you angry. It makes your temper shorter. It makes your blood boil. Literally and figuratively.

The New York Times isn’t the only paper to notice this trend either.

Some weather guy over in Philly noticed the same thing. His findings were summarized as follows (with some caveats at the end that you can read yourself):

In the years 2006 and 2007, on the 25 days when more than 4 murders were recorded in a 24 hour period, he found that (a) Warmer than normal weather tends to be when tempers boil over, and (b) The hottest month of the year is the worst for the murder rate.

According to this article yesterday, the heat actually can make you crazy. According to clinical psychologist John McFadden, “heat interferes with decision-making, impairs concentration and attention and increases irritability.” He says that there “are even some studies that suggest that it increases tendencies toward aggression, domestic violence, even murder." But any cop or criminal attorney in the Bronx could have told you that.

So, when the temperature goes up, the tempers flare. So, this summer, when it gets too hot, don’t forget to keep your cool.

So tell us, what makes you homicidal?

Law Blogs - LexMonitor

2011-07-21T04:58:00.000-07:00

Once in a while when perusing the Internet one stumbles upon something that make the angels of obvious sing in the head, "Of Course!"....
I have a Google Alert set up notifying me when my name comes up (I like to know what the world has to say about me!) So this morning, when I received a Google alert with my name on LexMonitor, I went to the site...and the angels sang...

LexMonitor is a daily review of law blogs. They consolidate information from "over 2,000 sources and 5,000" professionals. The site allows you to subscribe to certain channels (such as criminal law) where you can recieve snippets of articles in your area of interest.

If you are a law blogger and your site is not included on LexMonitor, you can go here where there is a link to ask to be added.

There is also a feature allowing you to subscribe to certain tags. My articles on Leiby Kletzky, Caylee's Law, Casey Anthony and several others all popped up as tags you can subscribe to. Brilliant!

What are your favorite law sights - blogs or otherwise? Please share! (Shameless self-promotion not only tolerated, but welcome).

Related Articles:

A Great Idea Out of a Terrible Tragedy - The Leiby Initiative
Savvy Authors - Navigating the Waters of Self Promotion by Sarena Straus
Leiby Kletzky
Defending the Casey Anthony Jury
Caylee's Law - Why It's A Bad Idea and Suggested Alternative

Child GPS Locators

2011-07-18T08:44:00.000-07:00

Just a few months ago I did an Internet search for child GPS locators and came up with little of interest. At best, devices were bulky or offered only short range assistance in locating children (i.e. if they wander a few hundred feet from you in the playground).....

A search today revealed that the landscape of options has changed drastically in the last few months with companies offering a range of products, including items that look like watches, affix to clothing and track through use of cell phone technology.

Most of these items come with some kind of monthly subscription cost along with the base price for the device. And especially if we are talking about kids, these devices can get lost.

If you own a child GPS tracker, please comment on this blog to share your reviews of the product so that my readers will be able to explore these important safety options. We'd love to know what you think of the device in terms of it's convenience, ability to withstand the punishment a child can inflict, how easy it is for the child or a predator to remove, how well the actual technology works (Can you track from your cell phone? Can you set up alerts, etc). Also, please share any real life experience you have that might explain how the device helped you.

I'm confident that in the next couple of years, options for child tracking technology with continue to improve!

A Great Idea Out of a Terrible Tragedy - The Leiby Initiative

2011-07-17T11:23:00.000-07:00

And now, for the flip side of my post two days ago about when bad laws come out of terrible crimes. The Leiby Initiative....
In the wake of the brutal murder of Leiby Kletzky in Brooklyn this week, Brooklyn Assemblyman Dov Hikind has introduced the Leiby Initiative. The initiative proposes a $500 tax credit for New York city property owners who install and maintain surveillance cameras.

Most of you who followed the search for Leiby and his eventual discovery know by now that surveillance cameras are what lead authorities to Levi Aron, his confessed killer. (Sorry - I just can't stomach saying alleged to this one).

The Daily News reported the story of the persistent and methodical work of Borough Park resident Yaakov German, who spent Tuesday morning seeking out and reviewing footage from security cameras along Leiby's presumed route. When no footage of Leiby was found along the route he was supposed to take, German assumed the Leiby must have gone off course somewhere. He eventually found footage from a car dealership that had recently installed new security cameras. That footage, showing Levi Aron speaking with Leiby, ultimately enabled police to track him down Aron.

If there had been more surveillance cameras along Leiby's route, he could have been located much more quickly and perhaps his life could have been saved. More surveillance cameras would help authorities in a wide variety of cases and would further function as a deterrent to many crimes.

While we're at it, if there is a way we could encourage businesses to take other measures to protect children, like Code Adam training, we could take a huge step toward a safer environment not just for our children, but for all of us.

Savvy Authors - Navigating the Waters of Self Promotion by Sarena Straus

2011-07-16T11:19:00.000-07:00

Savvy Authors - Navigating the Waters of Self Promotion by Sarena Straus

I'm a guest blogger today on Saavy Authors! Enjoy this article on self-promotion!

Leiby Kletzky

2011-07-15T06:53:00.000-07:00

The death of Leiby Kletzky is the greatest possible kind of nightmare and tragedy. The story of the search for him is an amazing example of a community coming together to save a life. It is an example of perfect execution of the system, mobilization of law enforcement and community working together. But still, his life ended in the worst imaginable tragedy....

At some point, all parents have to make a decision that it's time to allow our children to exercise some Independence. There is no way to know when is the right or wrong time. Tragedies like this are rare, but they do happen. All we can do is make our best guess about what is the right age and do the best we can to prepare our children. I have copied here some of the guideline recommended by the National Center for Missing and Exploited Children for when kids go to school alone, but the rules have excellent general application. Please read them and if you are considering allowing your child to go somewhere alone, make sure they know these rules:

Teach your children to always TAKE A FRIEND with them when walking or biking, and stay with a group while standing at the bus stop. Make sure they know which bus to ride.

Walk the route to and from school with your children pointing out landmarks and safe places to go if they’re being followed or need help. Teach your children they should NEVER TAKE SHORTCUTS and always stay in well-lit areas.

It is not safe for young children to walk to and from school, even in a group. Parents should always provide supervision for young children to help ensure their safe arrival to and from school. If your children wait for a bus, wait with them or make arrangements for supervision at the bus stop.

Teach your children that if anyone bothers them, makes them feel scared or uncomfortable to trust their feelings and immediately get away from that person. Teach them it is ok not to be polite and IT IS OK TO SAY NO.

Teach your children if anyone tries to take them somewhere they should RESIST by kicking and screaming, try to run away and DRAW ATTENTION by kicking and screaming “This person is trying to take me away” or “This person is not my father/mother.”

Teach your children NOT TO ACCEPT A RIDE from anyone unless you have said it is ok in that instance. If anyone follows them in a vehicle they should turn around, go in the other direction, and run to a trusted adult who may help them.

Teach your children that grownups should NOT ASK CHILDREN FOR DIRECTIONS, they should ask other adults.

Teach your children to NEVER ACCEPT MONEY OR GIFTS from anyone unless you have told them it is ok to accept in each instance.

Make sure the school has current and accurate emergency contact information is on file for your children and confirm names of those authorized.

Always know where your children will be. Teach your children to always CHECK FIRST before changing their plans before or after school. Teach your children to never leave school, with anyone unless they CHECK FIRST with you or another trusted adult, even if someone tells them it is an emergency.

Children should be taught to trust their feelings. They need to know that if someone makes them feel scared, uncomfortable, or confused, they should tell a parent, guardian, or trusted adult.

I would add to this to always have a recent, clear photograph of your child easily available. Consider putting together a child safety education program in your community. Guidelines are available here. Also, remember that telling your kids not to talk to strangers in not effective. You want to teach them who they can talk to, not who they can't. As a general rule, you should encourage your kids to seek help from a mom with children or a person in uniform. Please go to the National Center website for more great information and educational tools for child safety.

I can't imagine the pain that Leiby's family and his entire, close community must be feeling right now. I hope they can find some small solace in the tremendous outpouring of love and grief not just in their community, but from around the world.

May Hashem comfort you among the mourners of Zion and Jerusalem

Caylee's Law - Why It's a Bad Idea and a Suggested Alternative

2011-07-14T07:07:00.000-07:00

Any of you know me know that the drum I bang over and over again is prevention. How do we prevent child abuse? It’s a terrible thing that it often takes tragedy to create movements and change or create laws for the better.....
For certain, it's an unacceptably high price that something bad, no, not something bad - the worst possible thing - has to happen for some good laws to be made or some great things to happen. Institutions like the National Center for Missing and Exploited Children were born from the tragic loss of the lives of children. And NCMEC has saved so many lives since. But not all ideas born of tragedy are good ones. I wish that Caylee’s Law could be one of those silver linings in an impossibly gray cloud. But it’s not.

In the short time since Casey Anthony was acquitted, numerous states have started considering versions of a proposed “Caylee’s Law.” Within 4 days after the petition was proposed, 16 states were considering some version of Caylee's Law. The original online petition, which as of this morning has over 1.2 million signatures, proposes the following:

I'm writing to propose that a new law be put into effect making it a felony for a parent, legal guardian, or caretaker to not notify law enforcement of the disappearance of a child within 24 hours of the time that they know the child is missing, so proper steps can be taken to find that child before it's too late.

Some states are additionally considering provisions similar to one that would make it a crime not to report the death of a child within one hour.

Is this a good law that will accomplish something or is it people grasping and pulling some kind of meaning out of a meaningless death?

Certainly, Caylee’s law would be no deterrent. Let’s play this out. I murder my kid and have an hour to report it:

“Hmm…I can report this murder that I just committed thereby avoiding 1 – 5 under Caylee’s Law, but then I will be giving law enforcement access to all kind of wonderful forensic information that will lead to my conviction of 25 to life for murder. So….do I turn the body in or do I hide it somewhere hoping that by the time someone finds it, the condition will be so bad that forensics are useless….hmmmm….”

Well, when you put it that way…

Sarcasm aside, let’s look at the second part – having to report a child missing within 24 hours:

About 99 percent of all children who go missing, are eventually found. But when you are talking about stranger abductions, like Shawn Hornbeck's, most children are killed within three hours. Shawn Hornbeck was the very rare exception in his type of case. So never mind reporting within 24 hours. Report a missing child immediately!

Would making reporting within 24 hours a punishable crime help? Take this case out of Kansas where these morons…oops, I mean parents, did not report their son missing for years. He allegedly ran away after they spanked him and they claim they were afraid to report him missing because they didn't want to lose custody of him or their other children. He has not been seen since.

Granted, this ranks up there with some of the weakest reasons I ever heard, but if they are telling the truth, the odds of recovering their son - safely - if they'd reported within 24 hours would have been much higher. Maybe they would have been motivated by a jail sentence, but for now, their son has never been seen again and they have no accountability. That sucks. But it is reason to create a new law?

Even the requirement to report a child missing or risk criminal penalty is fraught with complications: What’s the age cut off? Is it 18 and under? 12 and under? 5 and under? When does the clock starts ticking? Is it when your 15 year old tells you they are leaving to sleep at a friend’s house or 15 hours later when you find out they lied?

The potential for the police to be flooded with unwarranted complaints from guardians who think the kids are fine but are afraid of going to jail is real. Also, again, guardians who are going to do the right thing (or have half a brain) are going to report a child missing regardless. And we don't want to punish or deter later reporting for fear of jail. Take the case of a parent whose kid has a tendency to not be totally honest about where they are going. They say they are sleeping at a friend's house. They lied. The parents find out 25 hours later - do you want to punish them for reporting within a reasonable time under their circumstance? Do you want to deter them from reporting with threat of prison?

Moreover, there are already laws in place that can be used to prosecute irresponsible guardians. If a small child goes missing, for sure it should be reported right away. And if it’s not reported and there is not a good reason for it, you can make a case for endangerment. If we want to specifically address reporting a young child missing or injured, we can certainly shore up and improve existing laws. Many laws currently on the books are based on age. NY Penal Law Section 260 makes it a class A misdemeanor to endanger the welfare of a child under 17 by knowingly acting "in a manner likely to be injurious to the physical, mental or moral welfare of a child less then 17." Isn't failure to report a child missing likely to be injurious?

Like with many other criminal statues, we might consider elevating the level of the crime based on age. I.e., if you endanger the welfare of a child under 13, this becomes a class D felony. If they are under 8, it's a class B felony, and so forth.

This would allow flexibility and room for reasonable explanation. And it wouldn't set arbitrary time limits. Endangerment might start at minute 1, not hour 24. Or it might start at hour 30.
If Caylee’s law were on the books in Florida, there would have been at least something to convict Casey Anthony of. And maybe that’s what people are looking for here. These types of reactionary movements are often born out of good intentions and a desire for justice. In principle, I think requiring that the death of a child be reported within 24 hours makes great sense. But in reality, the people who are going to follow that law were going to follow it anyhow. Caylee’s Law would do little or nothing to change the stats. There are already laws in place to punish everything that Casey Anthony did or did not do for her daughter. And there are laws that we might considering modifying in light of what we've learned from this case. But in this case, with these laws on the books, the prosecution just couldn’t prove it and sadly for Caylee, Caylee's Law as proposed will change the facts.

Defending the Casey Anthony Jury

2011-07-13T08:01:00.000-07:00

Right after the verdict in the Casey Anthony trial, a friend of mine sent me a message on Facebook. He said that for the duration of the trial, he told people that I once said to him that cases are tried in both the court room and the press - you'll never know what the jury hears and how it understands it. Be ready for a surprise....

The verdict in the Anthony case did come as a surprise to me. But not for the reasons you would think. I never thought the prosecution had enough evidence to prove the case. I’m not implying that they did anything wrong by moving forward. Sometimes the right thing to do is to present everything you have and let the system determine if there is reasonable doubt. And often, more often then not, the prosecution has information that the law prohibits them from sharing with the jury. And I speak from experience when I tell you how painful it can be to know something that makes you sure of a defendant’s guilt, but have to keep it to yourself.

No, the verdict did not surprise me because I thought the prosecution proved guilt beyond a reasonable doubt. The verdict surprised me because the jury got it right. I thought that the jury would want to punish Casey Anthony for this crime so badly, and be so swayed by public opinion, that they would convict anyhow.

This jury has been blasted by the press and the public for their decision. But that’s wrong. It takes a lot of guts and careful attention to the facts and the law to do a juror’s job right. To tell you that over the years I heard some seriously crazy shit from jurors (and excuse me, but no polite word will do) is the understatement of the century. To give only a couple of many examples, I had one friend who spoke with the jury after they hung the case and found out that one juror refused to find the defendant guilty, even though the case had been proven, because he wanted to “get back at prosecutors.” He let a guilty person back into his own community to spite the prosecutor.

The jury in my first trial basically admitted to me that they spent extra time deliberating so they could have a free night at a hotel and some free dinner and spent their time betting on whether the defense attorney and I would get together! I had jurors who asked if the closing argument was fact because the defense said it wasn’t true and I said it was, so how could both of us be right? The list goes on..and on…Add to that how hard it is to seat a jury in the first place. The excuses people will come up with to get out of jury duty would knock your socks off. I was actually selected for a jury once and my own boss (after I left the DA’s office) yelled at me for not making an excuse to get out of it. And he was a litigator! He knows how hard it is!

The jury system may not be perfect, but it’s what we’ve got. It’s our opportunity to make sure that the law is applied justly and fairly to everyone. It is our right to have our fate decided by a large group of people whose job it is to make sure that we are being either convicted or acquitted in accordance with the evidence and the law. It’s a very hard thing indeed to spend day after day paying close attention to endless testimony and to the laws as they are written, which are very confusing, and apply those facts to the law and render a verdict. This is especially hard when that verdict may very well result in freeing someone who has killed an innocent child. I think more than anything, those verdicts must be the hardest.

While I have no tolerance for jurors using their service in an opportunistic way (it makes me question their honesty in the selection process in such a high profile case), I appreciate the insights such as those we’ve gotten from the foreman of the jury, who asked to remain anonymous. And the fact that some of the jurors now fear for their own safety, is unconscionable. Anyone who would threaten another human being for doing something so difficult needs to think about what they would want from a jury if they or someone they loved were accused of a crime.

The Barefoot Bandit and Guilty Pleasures

2011-06-18T12:55:00.000-07:00

I'm about to confess something that I know I should be ashamed of as a former prosecutor, but I was rooting for Colton Harris-Moore. I know, I know. I should be mortified about my departure from good prosecutorial justice seeking zealousness. But seriously, how often does a criminal come along that we can really root for.....
Someone clever and elusive and young and adorable who cavorts merrily along in his bare feet throwing raspberries at the authorities.

Okay, granted, some of his carefree billikin-like persona might be an invention of mine, yours and a lot of other people. I'm sure he can't have really done it all with a smile and a jig. But you've got to give the kid credit. He escaped from juvie, stole a plane, a boat, another plane (which crashed and her survived it!) before finally being caught in the Bahamas not in his crashed plane, but, after diving in the water and stealing a boat (another boat!), and surviving having that boat riddled with bullets! Genius! Houdini!

He gets a mild tut tut from me for stealing a pistol - so out of character for our whimsical little perp. But other then that, I have to say "Bravo!" I'm sad to see the story come to an end. But at least no one got hurt, which I guess, if I have to be honest, would have happened eventually.

I furthermore really want to throw some boos and "Party Poopers!" at the US Attorney, Jenny Durkan, for taking this so seriously! I know, shame on me. She's one of the good guys! We're on the same team! But I can't help myself. I mean, it's just (very expensive) stuff, right? And please don't tell anyone, but I think, I really do think, I could go to the dark side to defend this guy.

So, he has to give up all the proceeds of the sale of his story to pay back all of the damage and destruction to all of the expensive, cool stuff he wrecked and left footprints on. Fair enough. But would it be too shameless of me to admit that as a former prosecutor turned novelist, I'd raise my hand in a heartbeat to write his story and I would rose-paint it to my shameless delight!

NATIONAL MISSING CHILDREN'S DAY

2011-05-25T09:16:00.000-07:00

Today is National Missing Children's Day. On all days, but especially today, please consider taking the following actions:....

1. Donate to organizations like the Polly Klaas foundation, which has helped over 7600 families find their missing children.

Consider becoming a Rapid Response e-Volunteer for Polly Klaas. You will receive about 10 emails a month with information on and posters of missing kids. If the kid is in your area, you can post and distribute the information and help find them.

2. Order your free child safety kit today for DNA and fingerprinting and always have a recent picture of your child readily available.

3. Get Involved. The National Center for Missing and Exploited Children offers lots of ways for you to get involved in child safety like adding a gadget to your webpage or starting a Code Adam program in your work place.

4. Pay attention to Amber Alerts and sign up to have the texted to your phone. Amber Alerts are incredibly effective in recovering kids but they can't work if you don't get them or don't pay attention to them.

These are just a few of the many things you can do to help recover a missing child. They cost you nothing but a moment of your time and can make all the difference in the world. Please consider sharing this or other ways to protect children today and every day.

In Memory on 9-11: John Moran and Sergio Villanueva

2011-05-05T09:17:00.000-07:00

My law school classmate, Chief John Moran and Firefighter Sergio Gabriel Villanueva. Both victims of 9-11

Justice and Bin Laden - A legal and New Yorker’s Perspective

I don’t think I want to talk about Osama Bin Laden.....
At least not in terms of his being killed. However, I’d like to talk about it from the perspective of a lawyer and as a New Yorker who was in Manhattan on 9-11 and in Washington, DC on Sunday, May 1.

On 9-11, I turned on the news and heard that a plane hit one of the twin towers. The anchors were speculating that it was a small plane and I looked out my window and south about sixty blocks to where I had a clear view of the towers. Then a saw it – a large plane – a full size jet – come around behind the towers, bank steeply and vanish into the South tower – it didn’t crash into the tower but literally disappeared into the tower without a trace.

My first thought was to call my friend Anjali, who worked in the World Trade Center and tell her not to go to work. She was still home and hadn’t heard the news yet. Next, I called my friend Lisa who worked in the American Express building. I could not reach her. It took another four days for me to find out that she was okay. Then I called my parents and let them know I was okay – that I was up town and a safe distance from the towers. It was a good thing because the next couple of days, calls out of the city were nearly impossible.

Then I stood there and watched – watched the smoke billowing out of the towers, listened to the, at first, grossly incorrect speculations on the news, which gradually grew more informed.
I saw it in the North tower first. I saw it start to list. Just as the news was speculating about the potential structural damage, I watched the tower begin to tilt impossibly and I thought, “Oh my God, it’s going down.” I looked at the national landmark immediately next to my building, thought about the meeting I was supposed to attend in Grand Central that day and I thought, “I have to get out of here.” I thought I needed to be as far as possible from any national landmark.
I grabbed my wallet, a change of clothing and my pet rabbit and I got out of there.
On May 1, 2011, I had just returned to my hotel in Washington, DC when I heard that Osama Bin Laden had been killed. And this time, getting out of there was my first thought. I calculated it all carefully – I was over a mile from the capitol, the odds of retaliation within a matter of hours or even days was unlikely. I resolved to stay, but made sure that my ride on the Metro the next day kept me as far from the mall as possible.

I watched the TV, watched all of the people gathering in front of the Capitol and at the World Trade Center, chanting “USA, USA” and I wondered, “Where were you on 9-11?” The answer, from the general looks of the crowd, was not where they were, but when they were - somewhere between eight and twelve years old.

My next thought was, “I wonder if Tanya is okay.”

I lost a friend on 9-11. His name was Sergio Gabriel Villanueva. His fiance’s name is Tanya and over the years, I’ve come to know and respect her greatly – come to consider her a friend. In the last ten years, she has married and had two gorgeous children. I wondered how someone like her processes a moment like this.

Another friend of mine married a woman who lost her fiancé on 9-11 and they just had their third child.

How do you reconcile what tragedy has taken away from you against what tragedy has given you?

Justice means different things to different people. Many people confuse justice with retaliation – and eye for an eye and a tooth for a tooth. But numerous studies have shown that revenge, whether just or not, rarely makes victims feel whole. In death penalty studies, in discussions with relatives of murder victims where the killer was executed, most of the family members said that the execution made them feel worse, not better.

As someone who witnessed first hand the destruction on 9–11 and as someone who knew people who died on 9-11, I feel less safe than I did four days ago. I fear retaliation. I fear the next leader of al-Qaeda and the factions that will break off. And I’m certainly not alone.

The war on terrorism, like the war on crime, is most successfully fought by understanding and getting at the root of the issue. Killing Bin Laden may prove a point and it may stall violence, but it does not make anyone safe from terrorism. Sooner or later, he will be replaced. The people working to understand what radicalizes terrorists in the first place and working to stop the problem at its root cause are where real hope lies.

In the meantime, if I were fatalistic, I’d note that Bin Laden was killed on Yom HaShoah – Holocaust Remembrance Day. And Yom HaShoah is as much about remembering those who died in the Holocaust as about remembering those who heroically and at their own great risk and often death, fought to stop the atrocities. And remembering those who caused those atrocities and trying to understand them so we can prevent it from happening again. Maybe that’s what I’m getting at here. That our focus should not be on celebrating Bid Laden’s death, but on remembering those who died because of him and trying to understand those who fought beside him – so that we can stop terrorist from becoming in the first place.

Never Forget….

Guest Blogger Misa Ramirez on Plotting

2011-05-04T16:55:00.001-07:00

I a minimal plotter. I get a nugget of an idea and run with it, seeing where it takes me and my story....

This is true whether I’m writing my Lola Cruz Mysteries, my new Magical Dressmaking Mystery series, or my romantic suspenses (A Deadly Curse, available now, or A Deadly Sacrifice, coming in May). My ideas usually stem from something I’ve read, heard about , or have in my memory banks. From there, it develops, often requiring research to flesh it out.

This was especially true when it came to writing A Deadly Curse. It’s based on the legend of la Llorona. As an aside, I’d written this book in its current form, but because of my other mysteries, I thought about restructuring it to be more of a mystery with a little quirk. I discussed it with Alex Sokoloff when we were at a retreat in South Carolina, and boy, oh boy, she did not like the light treatment of the legend of la Llorona! I remember feeling like I’d been scolded for not taking a legend seriously, when in fact I had already taken it very seriously and written about it. But she was right, ad I went back to the original book, tightening it and making it even darker, respecting the legend(s) and all they represent. It was definitely the right decision. Gracias, Alex, for sending me back to my original manuscript!

Back to la Llorona. My husband, Carlos, grew up hearing the story. His parents, tias, and tios, and every other adult around, would tell the kids the story. Their purpose? To frighten them enough so they wouldn’t wander off alone. La Llorona was the Mexican boogyman.

I first learned about the legend of the crying woman after I met Carlos (we’ve now been married 20 years and have five children, so la Llorona has been part of my consciousness for a long time). We’d go camping with his brothers and sisters and their spouses, sit around the campfire, and invariably, the stories would begin. Before long, a low, haunting sound would float through the air. La Llorona. It was as if the ghost was right there, her wails coming from the banks of the river through the trees.

It didn’t take long to figure out that it was my husband making the haunting sounds, but the legend itself was spooky and stayed with me from the first time I heard the story. A woman kills her children by drowning them in the river. After she realizes what she’s done, she drowns herself. Legend has it that the woman has been haunting riverbanks ever since, looking for her children. Kids are warned to stay away from the rivers so la Llorona doesn’t steel them, thinking they are hers.

Creepy.

Yet fascinating.

When I began plotting A Deadly Curse, I needed to learn more about la Llorona. Why did she drown her children? That, I figured, would inspire my plot. Little did I know that the legend of la Llorona was far more complex than I’d ever imagined.

What I learned was that there are actually four different stories behind the legend. My husband’s family knew only one of them. Everyone I’ve talked to since then has only known one, or possibly two different versions. No one has known all four of the stories.

The woman in each story was called something different:

La Ramera (the harlot)

La Bruja (the witch)

La Virgin (the virgin)

La Sirena (the siren)

Needless to say, learning about the four different stories set my plot in a new direction. The knowledge created new opportunities and obstacles for my characters, and I couldn’t have done a better job if I’d painstakingly plotted. Research opens doors for me, taking my stories in fascinating directions I couldn’t have created if I’d tried. The uncertainty and reveals during the process makes writing that much more interesting, albeit nerve-wracking, for me. I always have a roadmap, so I know where I’m going to end up, but f I don’t always know the exact route I’ll take to get there. And if I don’t know exactly where the story is going, I can’t leave an subconscious trail of breadcrumbs for the reader.

In my opinion, a great book is most often the result of clever and tight plotting, combined with discoveries made by the author during his/her writing process.

As readers, do you find some books to have too clear a path to follow and does that spoil the read? Conversely, do you find that some books ramble, going in too many directions, leaving you wondering if there was a roadmap at all?

Misa Ramirez, who also writes under the pseudonym Melissa Bourbon, can be found online at:

Stripping down characters on The Naked Hero (http://thenakedhero.com/) and giving away free books at Books on the House (http://booksonthehouse.com/).

She’s on Facebook at http://www.facebook.com/pages/Author-Melissa-BourbonMisa-Ramirez/132391636807207 and Twitter @MisaRamirez

She’s also the marketing director for Entangled Publishing.

A Deadly Curse:

Reading (and writing) Crime

2011-04-05T09:22:00.000-07:00

Now that I'm done with the first draft of my novel and in edits, I have been on a legal/police procedural/thriller binge. I admit (somewhat shamefully), that although I'm writing this genre, it's not a genre I generally read....
I read to escape and find that when I read "what I know" (just as when I watch it on television), I get too caught up in the small details and inaccuracies to really enjoy the romp. All of that said, I thought that trying to publish in this genre without understanding what people out there enjoy did not make much sense. So between reading and listening to audio books, I must have consumed upwards of twenty books in the last five months. Given this, I thought I would share a few standouts. First, In The Woods by Tana French is a really unique romp. Set in Ireland, this procedural thriller is just gorgeously written. I admit that there were parts of the end that I found somewhat unsatisfying, but other then that, it was a page turner and did an excellent job of capturing the spirit and emotion of law enforcement professionals. I found myself reading and re-reading sentences just for the beauty of them. I'm already well into French's next novel, The Likeness. Stieg Larsson's wildly popular Millennium Trilogy was notable for one of the most unique characters I've read in a long time. One generally gets the sense that it's all been done before, but Lisbeth Salander is really interesting to get to know. The books all tended to go on some tangents and could have used some editing (pieces that were introduced and then dropped, etc). But all in all, great stories with characters that you care about and want to get to know. Finally, if you haven't read it recently or if you only saw the movie, Misery by Stephen King will knock your socks off. I've never seen anyone portray fear or write in the third person as well as King does. To be able to keep a reader interested with the characters stuck not just in the same house but limited to a single room it that house is quite remarkable. I also just have to put in a little plug for my friend Eddie Conlon's new book, Red on Red. The book is just out and I haven't had the chance to read it yet, but his first book, Blue Bloods, is gorgeously written. Initial reviews of Red on Red point to another best seller for a deserving guy and a great cop.

In Memory of Dan McCarthy - My Friend and Teacher

2011-02-17T11:12:00.000-08:00

A great teacher can influence the entire course of a student's life almost as much as a bad one....
When I went to college, I thought I wanted a career in drama therapy. I took two courses my freshman year; drama and psychology. By the end of the semester, I knew this was the wrong path for me. The drama course was snobby and my psychology class was just plain ridiculous. I don't think it was either of these aspirations that were the problem. The problem in both cases was a teacher who not only did not inspire me, but sucked the inspiration out of me.

And then a strange thing happened. I was hired for an acting job by Columbia Law School. My role was a college student who'd come through the foster system and made it out the other side with a good story to tell. I was helping law students in a clinic prepare to represent foster children. It was at this moment that I first realized I wanted to be a lawyer.

Three years later, I went to law school and had my first great legal teacher, Deborah Denno. Professor Denno was (is!) a brilliant criminal law professor. She was witty and irreverent in her presentation. Creative, interactive. Above all, her enthusiasm for criminal law was contagious. She knew I had a passion for the subject and when my grade on my final was not nearly what I'd hoped, she came to me of her own accord and encouraged me not to let this interfere with my career aspirations. In fact, in spite of my middling final grade, she hired me as a summer intern to assist in creating a criminal law handbook. Over the next three years, I took and loved every course Professor Denno offered. We still speak to this day and she has never stopped being a real friend and mentor to me.

Along the way, I had many more wonderful teachers, both formally and informally, but my next truly great teacher was Chief Trial Counsel at the Bronx DA's office, Dan McCarthy. Dan was charged with educating and mentoring the younger assistants at the office. I still remember a lecture he gave on circumstantial evidence. This roly poly guy with glasses brought his computer into training room and plugged it in. He then proceeded to dance around and put his own lyrics to Shaggy's "It Wasn't Me." He was a surprisingly good dancer and rapper. But he was a glorious teacher.

When I tried my most difficult case, the prosecution of a Marist Brother for raping an eight year old girl, Dan was right by my side helping me with strategy, talking me through my options and helping me approach the case from other angles.

Above all, Dan was a brilliant story teller. When you sat in his courtroom and listened to him try a case, you felt like you were not in a court of law, but inside a compelling and often horrifying but brilliant book, hearing a story about people and the things they do to each other - terrible things. But in this book, you had the power to do something about it. The end was in the power of the people.

Dan McCarthy was a great teacher and a great man. Those of us who had the privilege to learn from him or just to sit in a courtroom and listen to him tell a story were lucky indeed. Even now, years after I left the DA's office, I still went to Dan for help and advice and to hear his stories which inform and inspire my books and characters.

Rest in Peace, Dan. You will be missed. The People of the Bronx have lost their greatest advocate and the new attorneys coming into that office, their greatest teacher. There was no one quite like Dan McCarthy.

Tabitha Walrond - 10 years later

2009-10-05T08:45:00.000-07:00

've been awash with comments on the Tabitha Walrond case. My feelings on the Walrond case are quite strongly that she intentionally starved her child to death. I believe the jury acquitted on the highest charge because it's easier to believe that she did not intentionally starve that child than that she did - what kind of monster could do such a thing to an innocent baby?....

Do I hope she found a better life for herself as one comment asked? I hope she found some help and some ability to understand the heinous nature of her crime. If Walrond really is self-aware, she will work the rest of her life to help other women in need understand the resources available to them and to advocate on behalf of children. Maybe she can save the lives of some other children and redeem herself that way, but as far as I'm concerned, there is nothing else she can do in this life to make amends for her crime.

Appearance Monday: Lisa Bloom - Open Court

2008-10-17T07:46:00.000-07:00

On Monday, I will be appearing on Tru TV's "Lisa Bloom: Open Court" from 9 - 11 am ESTChannel 58 in New York....

We will be discussing the Esto, Florida prosecution of a mother for the drowning death of her 7-year-old daughter in the family's swimming pool. Amanda Elaine Lewis, 27, of Esto, was charged with aggravated manslaughter of a child and aggravated child abuse. Her son, who was six at the time, was the state's key witness.

Safety Reminders for the New School Year

2008-10-15T10:39:00.000-07:00

Talking to children about safety is a frightening thing for parents, but is the single most important things parents can do to increase the safety of their children....
The beginning of a new school year is a great time to reinforce safety rules with your child and to update the rules based on your child's age, increased ability to understand more complex rules, and increasing freedom and Independence. Talking with children about dangers that exist, even role-playing various scenarios with them, is the most important thing you can do to protect your child. The new school year is also a great time to fingerprint you child if you have not already done so and to make sure you have current photographs of your child.

Here are some safety tips and resources:

1. Always keep an eye on you child, especially in large crowds. Just because you live in a safe neighborhood does not mean that this rule does not apply to you. Predators are opportunists and look for children in crowded areas when parents are not near by or paying attention. If you have a child that is particularly prone to wandering off, you may want to consider a child GPS tracking device. Some of these devices offer a feature that warns you if your child wanders past a pre-programmed distance from you. Remember - any kind of tool has is limitations and is no substitute for education and vigilance.

2. Instruct your child not to walk up to a stranger’s vehicle for any reason. Predators frequently lure children by asking for help (such as asking the child to help them find a lost puppy and holding up a photograph. When the child gets close enough to the vehicle to see the photo, the predator grabs them). Role-play this with your child. Instruct your child to tell a trusted adult immediately if they are approached by a stranger or if a friend is. Report all of these incidents to your local police along with as specific a description of the person and vehicle as you are able to provide.

3. Teach your child how to dial 911. Discuss with your child what an emergency is and when they would use this number. A young child may not understand this right away and may use the word "emergency" loosely. Just be patient and keep explaining what is and is not an emergency. Eventually they will get it.

4. Keep an especially close eye on children using the Internet. Depending on your level of tolerance for the privacy of your youngster, there are many monitoring tools that you can use and also security tools that let you block certain sites. While I don't suggest surreptitiously monitoring your child if you have no reason to believe anything is wrong, tell them that if they are going to be on social networking sites, you will look at their page and tell them your expectations. Tell them that not talking to strangers applies to the Internet as much as anywhere else. Share with them the long term ramifications of posting provocative pictures and the like. Teenagers have very little understanding of long term consequences. Be specific. If you have a child who drives, car GPS tools can alert you if your child leaves a designated area or speeds. Once again, if you are concerned about your child feeling that you do not trust them, I see no reason to not tell them that the GPS is in the car - it may be a more effective deterrent than sneaking such tools on your child's computer or vehicle and causing mistrust.

5. Provide your child with the names of trusted adults (Neighbors, etc.) that they can go to in the event of an emergency if you can’t be reached.

6. The stranger danger message is the most commonly used and least effective tool we to keep our children safe. Rather than telling your child who they cannot talk to, tell them who they should go to if they need help. If your child is lost, they should seek help from uniformed law-enforcement or security officers, a store salesperson with a name tag, the person in an information booth at a mall or other public venue, or a mother with children. For more information on Stranger Danger, please follow this link. For other great ideas on child safety including free downloads of instructive children's books, child ID kits and testing of your own child safety IQ, go to Power of Parents.

7. Here is one that really upsets me every new school year. Don’t put visible name tags on your child’s bike or backpack or have their name embroidered on their clothing or backpack. I know it's cute, but one way that predators gain a child's trust is calling them by name. This risk has been well publicized, yet major chains still insist on putting money before safety and offering monogramming and name embroidery services. Please tell companies that offer these services that they are putting children at risk and maybe they will stop! (This means you, Lands' End, L.L. Bean, and Pottery Barn Kids!!)

8. If your children stay at home by themselves, instruct them not to answer the door and to screen phone calls. Test them by calling sometimes.

9. If your child is in a dangerous situation, instruct them to yell, “This is not my Mom/Dad!”

10. Make sure your child knows their full name, address and phone number as soon as age appropriate.

11. Instruct your children that if someone comes into their room late at night, to scream and make noise no matter what the intruder tells them. Tell your children that if anyone, even someone they love or is related to, is hurting them in any way or doing things they don't like, they should tell you. Reassure them that even if someone tells them that you or they will get hurt if they tell, you will be fine and you will protect them. More than anything, it is important for your children to know that there will always be someone to help them if they need it and that they will not be in trouble for telling. Safety is more important than being polite or keeping secrets.

Happy and safe new school year!!!

Lemons, Odometers, and Criminal Penalties - Guest Blogger

2008-10-15T10:34:00.000-07:00

Sergei Lemberg, an attorney specializing in lemon law [link: http://www.lemonjustice.com/blog], is sitting in the guest blogger’s chair today....

Unfortunately, the behavior of some people who sell cars reinforces all of the unsavory stereotypes we have about car salespeople. And sometimes it even crosses over the line into the arena of criminal prosecution. For example, according to the National Highway Traffic Safety Administration, odometer fraud has escalated dramatically along with the demand for low-mileage used cars. The NHTSA notes, “Strong enforcement of the federal and state odometer laws, i.e., prosecutions with stiff sentences, appears to be the most effective deterrent.” The Feds even provide financial assistance to state agencies that pursue odometer fraud. Link Here.

U.S. law (49USC32709) provides for criminal penalties for odometer fraud that include fines and up to three years of imprisonment. It even holds corporations accountable, in that the penalties also apply to directors, officers, and agents.

Criminal penalties also come into play when manufacturers and dealers fail to brand lemon titles as such. In about half of the states, when a vehicle is so defective as to be termed a “lemon,” there is a requirement to note that on the title so an unsuspecting consumer won’t unwittingly buy a defective vehicle.

The problem is that, because state laws vary considerably, it’s easy for unscrupulous sellers to “wash” titles by taking vehicles to a state with a weaker statute, registering them so they have “clean” titles, and then reintroducing them in states that have stronger laws. The situation is all the more difficult because states can’t easily share information about vehicle titles with one another.

Nevertheless, when a manufacturer or dealer fails to brand a lemon title, they could be and have been prosecuted to the fullest extent of the law.

McCain Fails Women on Violence Issues by Jennifer Mercurio

2008-09-22T13:47:00.001-07:00

While this is not a political blog by any means, I felt that it was important to share the following opinon on McCain versus Obama when it comes to sexual violence issues.....
This "guest blog" was authored by Jennifer Mercurio, someone whose opinions on these particular types of issues are well-informed and carefully considered. Jenn was the youngest state President of the National Women’s Political Caucus and the most recent past board Chair of the NYC Alliance Against Sexual Assault.

One oft-labeled second tier issue is violence against women, which some of us help guide our vote in the secrecy of the ballot booth. Some of you know that Senator Joe Biden faced stiff opposition when he championed the Violence Against Women Act (VAWA) in the early 90s. I remember, as Joe Biden does, John McCain repeatedly saying that there was no need for VAWA, and that it was ineffective, unnecessary and ill-conceived. John McCain fought long and hard to kill VAWA, ultimately voting against it twice. VAWA has gone on to establish, among other things, help lines for abused spouses; this one bill has gone on to literally change our entire society’s understanding of what sexual violence, rape, date rape, domestic violence and hate crimes are. It was, and continues to be, a complete game changer. Without Joe Biden we probably wouldn’t have VAWA. Barack Obama stands with Biden in support of VAWA. If left to John McCain, VAWA would be rolled back, as he’s stated any number of times.Forensic rape kits, also known as sexual assault evidence collection kits, are used by medical personnel to gather and preserve physical evidence following a sexual assault which can be used in criminal proceedings. Sexual assault kits are generally believed to be a victim's best way to document the attack and to help ensure prosecution of the attacker. McCain’s running mate instituted a policy requiring rape and domestic violence victims to pay for their own rape kits when she was mayor, and John McCain picked her as his running mate anyway. Obama and Biden believe that victims should be assisted in such times of trauma and that the state and healthcare should pay for them. It should be noted that Alaska has the highest incidence of reported rapes in the nation. Do we want the policies propagated there to be spread throughout our nation? Title IX is seen as many as a penumbra under which fall many issues surrounding women, equal access and violence. The Clery Campus Security Act, a law requiring colleges and universities to issue annual reports on campus crime and their security, was one such instrument aimed in part at strengthening and broadening Title IX on the precept that the fear of violence, and its aftermath, creates an unequal environment in which students live and grow. Obama and Biden consistently vote for bills related to these two laws; even though his running mate claims to be a product of Title IX, John McCain has consistently voted against bills related to the strengthening and broadening them. On the family of issues surrounding violence, particularly sex crimes, the choice is clear in November. Vote for Obama/Biden.Please step up to the plate – right now. If you’re not registered to vote – do it now. Work in your community to elect Obama and Biden. If you’re going to be out of town for the election November 4th get an absentee ballot. You can also make a donation here. to help the Obama/Biden team fight for an America that empowers us all.

9-11 Thank Someone

2008-09-11T11:57:00.000-07:00

9-11 seems a fitting day to write my first piece in quite a while. I’ve been on maternity leave, but today is a good day to return....
Law enforcement is a thankless job. It does not pay well. The hours can be awful. And the work can be depressing and grueling. Most cops, prosecutors, fire-fighters and yes, even public defenders, do what they do out of love and commitment and belief in their ability to make a positive change in the world. Today is a good day to think about how important that commitment is to our society and to our system of justice.

On 9-11, when the towers were hit, I was still in my 17th floor apartment on the Upper West Side with a clear view over Lincoln Center and right down to the towers. I heard on the news that the first tower was hit and I rushed to my window where I could see enormous clouds of smoke coming out of the building. While the newscasters speculated that maybe a small plane hit the building, I watched a huge plane fly past the towers, bank hard to the left, come around and literally disappear into the second tower. I watched as the towers started to list to the side and eventually crumble. Over the course of the next few days, I scoured the papers hoping that I would not recognize the names of any of the dead. But I did.

I know of not a single person working in law enforcement in New York that did not lose someone they knew on 9-11. Most people knew many people. I knew two. Fire Fighter Sergio Villanueva. When I met him, he was a cop and, in fact, was the first cop that I ever worked a case with on my first day as an ADA – on 9/11/05. We remained friends from that day on. Chief John Moran went to law school with me at Fordham. He was a member of the law review and we performed together in the Fordham Follies.

So, maybe it’s cliché, but take a moment and thank a cop, or a fire fighter, or a prosecutor, or even a public defender. Remember they are doing their job for you.

Registered Sex Offenders

2008-05-22T09:43:00.000-07:00

Criminal Justice Degrees Guide just posted an article "12 Online Tools to Discover Where Sexual Predators and Criminals Live in Your Neighborhood"....
These tools are excellent and I highly recommend using them. A search of my area on Family Watchdog revealed one sex offender living about 10 miles away from me, but within a mile of the local school. The search brings up a map of registered offenders in your area, and the map is color coded to show you if the crime is against a child. Clicking on the offender location box reveals more specific information about the defendant, including a picture, address and the nature of the conviction.

Pedophiles

2008-04-23T08:58:00.001-07:00

I wanted to share the following post from a reader in response to me article about pushing pedophiles to poor neighborhoods:...

"You are assuming anyone with the label "pedophile" has committed a serious crime. Like all crimes in general, most are made up of minor offenses, and haven't resulted in a prison sentence, these people make up the vast majority of people on the sex offenders registry. They are living with social persecution and ruined lives just because politicians know that whacking sex offenders is universally popular, and no one will ever stand up in their defense.If you are wondering what I class as a minor offense, an example is that of my son, who like many teenagers, had a porn collection. In that collection was a single image of a girl who may or may not have been under age (still late teens), a jury decided that she was under age and now he's one of your "pedophiles". I think half the men in the western world would be vulnerable to this sort of prosecution. Is my son a danger to children ? of course not. Before the prosecution he was well balanced and active, I just hope he still is after his nightmare has ended. "

I don't know whether this reader's son is a danger to children or not. First, lets be clear that not all sex offenders are pedophiles - in fact, few are. Also, I agree with the reader that not all sex offenders are equally dangerous or have committed equally serious crimes (I don't know that I agree that any sex offense is not "serious," but certainly not all are equally serious or dangerous). But all sex offenders have to register and therefore non-pedophile sex offenders are often subject to the same restrictions as pedophiles, such as not living within certain proximity of schools. Sex offenders may not be a danger to children and therefore, some of these restrictions may be casting a wider net than necessary. On the other hand, I'm not sure I'd want to take the risk or draw the distinction if a rapist were living near a school. That said, in my experience, people rarely receive harsh sentences or significant punishment for borderline offenses or honest mistakes. I never personally saw a case where someone was punished for possessing a single photograph that may or may not have been of a child. If this happened as the reader explained, I would agree that this would be a serious injustice and I would recommend an appeal. But it is also my experience that parents of sex offenders do not always face the full reality of what their own child is guilty of and if they do not have direct knowledge of the facts of the case (such as participating in the defense of the case or sitting through the trial), and get all of their information from their child, the crime is often minimized when explained to the parent.

Perhaps the only thing worse than having a child be abused is having a child that is a sex offender. Certainly, if things are as the reader explains here, I would be fighting like heck to get the conviction dismissed on appeal and if this is the case, my heart goes out to you and I wish you the best of luck. On the other hand, if you are trusting what your child tells you about the crime and you do not know for sure what the real facts are, consider the possibility that your child might have a problem and please, please, get them some excellent help.

2008-04-07T12:12:00.001-07:00

Amazon Kindle

Bronx DA: True Stories from the Sex Crimes and Domestic Violence Unit is now available on Amazon Kindle. Enjoy!!!

Exoneration and Law Enforcement

2008-04-07T12:11:00.001-07:00

Several weeks ago, the Sunday Times this week featured a cover story about a man exonerated by DNA –Jeffrey Deskovic. While the story is mainly about him and his difficulties integrating into society, it is also about the exonerated generally – the problems that they face and the compensation that they seek....

I won’t comment on the specifics of Mr. Deskovic’s case but I do wish to offer some thoughts about the convicted innocent generally and whether or not an exoneration necessarily means there has been misconduct. When a person goes to prison for a crime he or she did not commit, it is always a tragedy. That person has always lost something that society and money cannot give back. But just because someone has been convicted of a crime they did not commit does not mean that there has been misconduct.
The statistics in the New York Times article itself points to a system with far more successes than failures. The article surveys the 200 plus people exonerated by DNA evidence since 1989. First of all, that’s 200 people since 1989 – almost 20 years. As of December 31, 2006, 2,258,983 prisoners were held in Federal or State prisons or in local jails in the United States. 1,502,179 sentenced prisoners were under State or Federal jurisdiction.

The percentage of prisoners exonerated by DNA is infinitesimally small as compared with the number of justified convictions. The number of guilty people that are acquitted outweighs the number of convicted innocent by a phenomenally high margin. I’m okay with that. Our system was built on the premise that it’s far better that a hundred guilty people walk than one innocent person go to prison. But all of this means that our system is a rather good one. It will never be perfect.

All of that said, I am always in favor of taking action to make the system better. I take no issue with compensating the convicted innocent, even when there was no misconduct. Certainly, these are people that often have difficulty integrating back into society. There are some things that we can give back to them, such as education and a decent home. On the other hand, there are other things that we can never recover for them.

Mr. Deskovic advocated for something that may not be a bad idea – taping police interrogations. I can understand why some people in law enforcement might be opposed to this. For starters, many perfectly appropriate tactics used by law enforcement may not sit well with juries. For example, there is nothing wrong with telling someone that things will be better for them if they confess. There is also nothing wrong with using a ruse to get a confession. But these are things that do not always sit well with the public. On the flip side, when I was at the DA’s office, we always taped statements taken by the prosecutor and these tapes helped us far more than they hurt us. First of all, it protected us against any claims of misconduct. If someone told me they wanted counsel, you would have seen me end the discussion right then and there. If they were thirsty, the got a drink. If they had to go to the bathroom, we took a break. With that tape, no one could claim that a suspect requested something reasonable and I ignored the plea. The tapes were also very useful for us in showing the jury a person’s demeanor. It’s one thing for a person to say that they falsely confessed. It’s another thing to hear a killer say on tape, “Yeh, I killed the bitch and she deserved it,” with a big grin on his face and still believe that a confession was coerced.

Second is zealous advocacy – for both sides. Ours is an adversarial system of justice. Prosecutors have an obligation to turn over to the defense all exculpatory evidence. Once that has been done, it is the job of both sides to present their theory of the case. If part of that theory is that there are other explanations for seemingly exculpatory evidence, it’s not just the prosecutions right but it’s the prosecution’s job to present those theories for the jury. It’s the defense attorney’s job to zealously advocate for the client and tell the jury, “But is that enough to prove this to you beyond a reasonable doubt?” If it was the prosecution’s job to undermine their own theory of the case, then we would not have an adversarial system, would we? Should a prosecutor ignore exculpatory or new evidence when it is brought to them? Never. A prosecutor’s job is to do justice, and that means considering all of the facts. But the prosecutor is not bound to do the defense attorney’s job for them.

All of this said, when exoneration cases result in witch hunts, we are treating law enforcement with the same injustice that we are trying to right. Certainly, there is sometimes misconduct, and that should be addressed. But there is not always misconduct. Interrogation, for example, is a tricky thing. When it results in a rightful conviction, society praises law enforcement for a job well done. When law enforcement fails to get a confession and a guilty person walks away, then they are lambasted for incompetence. When an innocent person confesses, there is a presumption of wrong-doing. In other words, you can’t win.

2008-03-31T17:42:00.000-07:00

Appearing Tomorrow! April 1, 2008 on
The Morning Show with Mike and Juliet
9:00 am - 10:00 am EST
Channel 5 in New York

We will be discussing the case of Jennifer Latham. Latham kidnapped an infant from a Florida hospital and was apprehended a short time later. The judge, believing that Latham had no prior convictions, agreed to release her without bail on the condition that she wear an ankle bracelet with a GPS. It was later discovered that Latham had a criminal record in another state. We will be discussing whether the judge's decision was appropriate. I'm sure you can guess what my position is....Joining us will be a psychologist, a defense attorney, a woman and her child who was similarly abducted from a hospital and Latham's ex-husband.

2008-01-02T13:45:00.001-08:00

Another Prosecutor Blog!!!!

I am pleased to report that there is finally a new prosecutor blog in town! Thus far, "You . . . For The People" is fabulous, useful and prolific. In the short time they have been live, they have posted articles on DNA resources, the total coolness of being a prosecutor (I so miss being cool), resources regarding Child Sexual Assault and more. Sad to say that I have not posted as much as I should/would like to lately, so it's nice to have a partner in crime (prevention). Also, it's unusual for someone currently working as a prosecutor to be able to blog about their job (Frank, if you are not the big boss, I hope you checked with him or her), so Frank should be able to offer us lots of fun, current information.

I have been working on a post regarding the persecution of prosecutors stemming from the media blitz surrounding exonerations that I hope to have up for you soon, so stay tuned, happy new year and don't forget to watch me on Headline News tonight!

2008-01-02T13:25:00.000-08:00

Appearance Tonight! Wednesday, January 2, 2008

I will be appearing on CNN's Headline News with Nancy Grace at 8:00 - 9:00 pm EST Channel 59 in New York

2007-11-28T18:51:00.000-08:00

Appearance On Friday, November 30, 2007

I will be appearing on CNN's Headline News with Nancy Grace at 8:00 - 9:00 pm EST Channel 59 in New York

2007-10-16T14:31:00.000-07:00

Appearance Tomorrow

I will be appearing on Court TV's
Banfield & Ford - Courtside
1:00 - 2:15 pm EST
Channel 58 in New York

We will be discussing the Eastern Michigan University rape murder of Laura Dickinson - should be a great show and I hope you will tune in!

2007-09-17T13:11:00.000-07:00

Follow up on "Parents' ire grows at pedophile's unabashed blog"

Reader Jeff Deutsch left the following comment on my earlier posting regarding a pedophile's blog - a little bit of the other side of the argument:

"Ms. Straus makes some good points about the need to make sure people don't aid and abet criminals by posting information. And given that she's seen first hand the horrors of crimes against children, it's certainly a good thing that she sees stopping child molesters as a high priority. I found Ms. Straus' last statement disturbing, however. If her recommendation is in fact overly zealous, then the prospect of vigilante justice - really mob rule - is really cause for the authorities to dig in their heels and try to explain why it's important to protect Mr. McClellan's free speech rights, plus stand ready to try and punish any vigilante "justice" that may take place. The police, prosecutors and courts should never be the instruments of people who may be understandably angry but wrong. That would defeat the whole point of the rule of law, which is to suppress mob rule. With Assembly woman Parra's bill, I'm a little wary. If we criminalize even innocent pictures on the basis of the commentary accompanying them, I see a serious chilling effect on free speech. People may not be sure that somebody else won't consider their commentary to be "sexually explicit" - especially if it is, after all, not grounds for punishment without the photo which is itself innocent. This legislation, if passed, has the potential to vastly expand the range of what is considered obscene, and probably to be over-inclusive."

2007-08-22T20:30:00.000-07:00

Appearing Tomorrow, August 23, 2007 on
Fox 5 Live's (FNC)
"The Live Desk with Martha MacCallum"
1:30 - 2:00 pm EST
Channel 26 in New York

On Being a Prosecutor

2007-08-15T13:27:00.000-07:00

A while back, I posted about why I left the DA's office. The post got some wonderful responses and I wanted to share one in particular from RAG of The Somewhat Daily RAG:

"As a career prosecutor -- 26 years on the job -- I understand every word that you wrote.Generally speaking, prosecutors throughout the country, regardless of jurisdiction, are underpaid, overworked and underappreciated. Many of my younger prosecutors make less than their secretaries. The state eliminated pay progression (step system) a few years ago and thus one of my junior colleages calculated that it would take him 67 years to reach my salary.The burnout factor is high. On any given Monday we may have 20, 30, 40 (at one time I had 64) jury trials scheduled for the same time, often with no idea of which case will actually be tried.We are reminded that defendants are entitled to a fair trial -- but their attorneys ususally have only one case set for trial at one time. What about the victim's and the public's rights to a fair trial? How prepared can we be under these circumstances? How many cases are plea bargained because we simply don't have the time and resources?Yet somehow we do the job. We do it because we care. The reality is that we can't always care as much as we'd like. We do, however, attempt to secure substantial justice whenever we can.The "law factory" environment prosecutors work in sometimes can be dehumanizing. We're chained to our desks or in court all day and then some. The down side of this is that we lose contact with the very community we're sworn to serve. This is unfortunate.I've also seen some disturbing trends over the last 26 years. One of them is the sheer reluctance of many people (including some police officers) to carry out their civil duty to appear as witnesses. On any given Monday the case that will actually be tried often depends on which one has all of the witnesses on hand.I've also seen a general shift in the attitude of the police, often tilting toward an "us and them" mentality. Despite improved technology, the quality of police work sometimes seems to have declined. Plus, officers seem to have shifted from being "peace officers" to "law enforcement officers."Prior to law school I was a dispatcher, officer and small town police chief. Making a custodial arrest was often viewed then as a last resort to be exercised when the circumstances or the public safety required it. If we could preserve or restore the peace without taking extreme measure, we would do so. (I recall one third shift officer who made it a point to patrol every street and subdivision in his beat. He viewed the absence of crime as his measure of success and he would become personally offended if, say, a burglary occurred in his beat when he was on duty.)The politicians are of no help, either. Every year they pass new laws, usually without consulting with the folks who have to enforce them, to make it appear that they're doing something about crime. Of course, they never fund the laws they pass. My state admits my office is nearly 50% understaffed yet the legislature hasn't added anyone in years (in fact, 15 prosecutors were fired statewide, another 15 requested positions deleted and everyone took four days off without pay -- of course, we were expected to do the work anyway).A former chief justice of the West Virginia Supreme Court articulated it best: if law enforcement is kept barefoot and pregnant, all it can do is respond to the smoking guns. If it was properly funded it might have the time and resources to do more things, such as ferret out corrupt politicians.I could have taken early retirement two months ago. But despite the deficiencies, there is still value and relevance in being one of the public's defenders. Occasionally we still do make a difference. It still beats being a "defense whore" or a Wal-Mart greeter.Plus, as a senior prosecutor, I am encouraged by the young people working with me. Their work ethic may not be the same as when I was a young prosecutor but their hearts are in the right place. Too bad we lose so many of them because of the pay and burnout.And yes, with seniority comes the stripes to be able to walk into a courtroom and stare down a judge who's inappropriately beating up on a junior prosecutor with the implicit message of I'd like to see you pull that with me. Nonetheless, I see why so many of our best and brightest feel compelled to leave. And I grieve every time that they do. "

Parents' ire grows at pedophile's unabashed blog

2007-07-30T15:05:00.000-07:00

On July 28th, an extremely disturbing article appeared in several papers including the New York Times and the International Herald Tribune. The article is about the California police's inability to take action against a self-proclaimed pedophile who is posting his musings about children along with images and lists of places that pedophiles can go to find children. The article says that the blogger, Jack McClellan, "had been posting nonsexual pictures of children on a Web site intended to promote the acceptance of pedophiles, and to direct other pedophiles to events and places where children tended to gather." McClellan indicated that his move to California was prompted by the climate and the fact that California has "so many world-class children's attractions here, Disneyland, festivals and whatnot." While law enforcement officials in California say that, for now, there is nothing they can do about McClellan's postings, the law is not without recourse for incitement to violence.

According to the United States Supreme Court, the First Amendment does not protect speech that creates a "clear and present danger" of imminent lawless action. I found an excellent law review comment on the the on-point topic of "Incitement to Violence on the World Wide Web: Can Web Publishers Seek First Amendment Refuge? " The author, Lonn Weissblum, says that, "While publishers of various forms of media received First Amendment protection for their speech, those who guided others to commit lawless acts have been unable to hide behind the First Amendment. On many occasions, courts have encountered criminal cases in which the defendants were convicted of aiding and abetting crimes through the use or provision of instructions." Weissblum goes on to discuss two cases whether there were convictions for aiding and abetting tax fraud as a result of providing information about tax evasion. Another conviction for aiding and abetting resulting from a manual on how to make PCP. One would hope that the government would consider the provision of instructions on how to locate and defile children would be a more egregious offense then then one that merely involves money or even drug production. And for those of you that think my recommendation is overly zealous, consider that if law enforcement does not deal with McClellan in a lawful manner, his flaunting of his paedophilia and posting the images of people's children will certainly result in vigilante justice.

2007-07-16T04:29:00.000-07:00

First Amendment Protections and the Court

On Friday, on “The Live Desk with Martha MacCullum,” I was a member of the “A-List”, a panel of four that discusses current issues in the news. One of the issues that we covered involved a Nebraska judge that prohibited the use of certain words during a rape trial; specifically, "victim," "assailant", "sexual assault", "rape" and "sexual assault kit". As a result of his ruling, a protest took place outside the courthouse with people wearing tape over their mouths with some of the prohibited words written across it. The victim has since also gone public about this matter. Due to all of the publicity, the judge declared a mistrial in his own case (a prior trial on the same case with the same bans resulted in a hung jury).

This case has made international headlines, and with good reason. It seems to me that of all of the places in the world that our freedom of speech ought to be protected, especially in the "land of the free," it’s in the courthouse. The judge’s rationale for his ruling was that the words were overly prejudicial. To be honest, a prosecutor does not often use the word “rape” when prosecuting a rape case because the law requires that the elements of the crime be spelled out. “Rape” is a conclusion. Making out the elements of the crime requires the victim to describe what that means, i.e. (in this case) I was intoxicated and passed out. When I came to, the defendant had his penis inside my vagina. I tried to push him off and repeatedly said “No” (or something like that). Nevertheless, the crime itself, and the charge read to the jury is “Rape” in whatever degree.

In terms of prejudice, accusing someone of a crime is, in and of itself, prejudicial as is the word “rape.” But is it overly prejudicial to call the crimes what it is? Of course not. How absurd. To add insult to injury, the prosecution requested that if the court banned the words “rape”, “sexual assault”, "victim", "assailant" and “sexual assault kit” as overly prejudicial to the defense, that the court also ban use of the words “sex” and “intercourse” as overly prejudicial to the prosecution. The court said “no,” because it would leave no words to describe the act. If I were raped, I would have a real hard time using words like sex or intercourse to describe it and I think that would certainly give the jury the wrong impression of what occurred. A juror would go back to the jury room and say, "She didn't call it rape, she called it intercourse, so it must not have been rape." Remember, no one explains to the jury what has been prohibited by the judge, so as far as the jury knows, the vicitim is not using those words by her own choice.

A final point on this matter; The victim in this case has taken some heat for going public. Some, including a member of the panel I chatted with the other day, think that taking this public and encouraging a protest is the wrong forum. I disagree. As a prosecutor, it was never my preference that a victim speak to the press. That said, remember that if there is a conviction in a case, the defendant has many avenues of recourse. Numerous appeals for various issues can be filed. When there is an acquittal in a case, there is no recourse. The case is over and you don’t get another bite at the apple. When faced with the judges ruling significantly prejudicing this woman’s case, what choice did she have?

2007-07-12T08:01:00.000-07:00

Upcoming Appearance:

Appearing Tomorrow, July 13, 2007, on Fox 5 Live's (FNC)
"The Live Desk with Martha MacCallum"
1:30 - 2:00 pm EST
Channel 26 in New York

Work is also well under way on a new book that I am co-authoring with my father, Marc Straus. Stay tuned for more information!

2007-06-26T05:13:00.000-07:00

Post-Traumatic Stress Disorder?

It starts with something simple. Someone tells me they are taking a child somewhere large, crowded and usually urban. To a zoo or a Wollman Rink in Central Park. Or to an amusement park. Or sometimes a combination of several, like this weekend when my parents told me they were taking my two nieces and my nephew to Coney Island. The math is simple – two adults, three children. That’s only two adults to run after three children who tend to run, as three children do, in three different directions.

I start to get the shakes. My eyes well up with tears. I want to tell my parents not to take the kids – there are too many kids and too few of them, it’s crowded at Coney Island. I suppress this urge to a degree. I know I’m damaged, that all those years of prosecuting child abusers has made my tolerance for taking children to normal, fun places, like beaches and playgrounds, very low. I try to temper my fear, reminding myself that my parents successfully raised two children – even one like me that had a habit, at the age of four, of waking up before anyone else, dressing myself, and going on solo adventures, usually to wander through a nearby construction site. At four, I had a strange obsession with construction sites. I also remind myself that there is only so much you can do to protect a child before you damage them in other ways. Children need to experience the world and live their lives.

There was a time when only my oldest niece had been born. She was somewhere around three and a half. My sister-in-law brought her to the “Race for the Cure.” The crowd, a crowd of mostly women and many moms, a rather safe crowd, was massive. We were at the starting line and I started to cry and shake. Then there was the nervous laughter at myself and the apologies for my fear that in this big crow my niece would get lost or snatched. Instead of laughing at me, my sister-in-law kissed me and thanked me for loving her daughter so much. She carried my niece on her shoulders the entire 5k walk.

So I am the designated guardian for my brother’s three children should something (god forbid) happen to both my brother and my sister-in-law. Yes, it’s because I love them so much. But I also think it’s that touch, well, okay, heavy dose of paranoia that makes me the safest babysitter. Because when I take them to the very safe and very small park in our home town, all three of those children need to be in my line of vision at all times. Because when I step into the bathroom at the local pizza joint just to wash my hands with the three children right outside the door (which is ajar) and in a restaurant where everyone knows them and where the owner is a volunteer firefighter with my brother, I get heart palpitations because I can’t see them.

So I talk myself off the ledge, pick up the phone, and don’t tell my parents not to go to Coney Island. But I do demand a stroller for the two younger children, a constant hand on the older child and I really don’t have a problem with those god-awful embarrassing child leashes because I don’t care what it takes or how humiliating it is, as long as they are safe. And I shake and bite my nails and sometimes even cry until they are home safe.

2007-06-20T04:39:00.000-07:00

NYPD Cops To Take Breathalyzer Tests

Yesterday’s NYT reported that the NYPD is looking into mandatory alcohol testing for officers that shoot someone and to undergo a psychological screening when they become candidates for undercover work. While I support screening officers for undercover work (a few UCs that I knew were pretty darn nutty), is mandating an officer to blow even legal? Remember that even an officer accused of wrong-doing has rights.

When at was at the Bronx DA’s officer, we had something called Felony Beeper. I talk about homicide beeper duty extensively in my book, but not much about felony beeper, so I will say a little about it here. Felony Beeper occurred about once a month - an ADA would be on beeper duty for 24 hours on a weekday or 48 hours on a weekend to respond to any non-homicide felony issues. This could include writing up search warrants or interviewing witnesses or taking statements from defendants. On my first 48 hour felony beeper duty, I had to respond to the 23rd precinct in New York City where an officer was being held for a hit and run that had occurred in the Bronx. Not only could I not have administered a breathalyzer from the officer, but I could not even see him or speak to him. He was in total lockdown. You see, at the time at least, part of the process when an officer was accused of wrong-doing was that he was automatically represented by an attorney that has a contract with the police union and the situation automatically went into lock down. No one was allowed to speak to the officer for a least a 24 hour cooling period. Now, if the officer is represented by counsel and counsel says that you can’t go near him, how can you force him to take a breathalyzer any more than you can force a citizen stopped for suspected drunk driving? The answer is that you can’t. While the idea is a nice one, before the government spends more money on this one, maybe they need to remember that police officers have rights too.

2007-06-20T04:37:00.000-07:00

Pedophile Ring Busted

Yesterday’s New York Times reported that, thanks to cooperation among law enforcement in 35 different countries, a pedophile ring with over 700 members was busted and 27 children were rescued as a result. This group participated in particularly heinous acts, including the option to purchase a live feed of a child being abused. Law enforcement’s success was largely due to their ability to keep the operation under wraps, arresting the first operator of the ring in the UK and then keeping the ring running (or course without providing content) while they followed the trail to the person that took over the operation. Over 200 people have been implicated in the UK with over 100 already under prosecution. The investigation continues in 12 states in the US and in Germany. Boy would I like to be the prosecutor on these cases…

It’s a rare and wonderful thing when law enforcement can cooperate inter-agency. Domestically, law enforcement is particularly bad about cooperating and extremely territorial about their cases. Nowhere is this more evident than the lack of communication between the fire department and the police department, and then the police department and the FBI. This territoriality and failure to communicate is especially evident across borders. I’m happy to see success with this rare example of excellent international cooperation in the prosecution of pedophiles and hope that it will set an example going forward of how to put children before notches in the belt.

2007-06-09T09:09:00.000-07:00

How They Found Me

I'm on a long long long overdue vacation and have not posted for a while, so I hope you will forgive me a bit of a fluffy post. Occasionally, I list how people found me based on my ability to search back on site meter. As an aside, I've notice that the most common search that leads people to my site is either "Brass Knuckles" or "Metal Knuckles" due to a post from quite some time ago. I'm not sure how to feel about this other than to wonder why this is such a common and interesting search for people. That said, here are some recent searches that found this site:

jacob whetterling
OVERZEALOUS PROSECUTORS (yes...capitalized)
Stranger Danger Criminal Minds
cynthia sommers, why no death penalty
prosecutorial ethics of sentencing children to the death penalty
how much money does a prosecutor make a year? (not much)

2007-05-27T10:03:00.000-07:00

Exposing Informants to the Public

My friendly anonymous AUSA has shared another interesting story with me that appeared in the New York Times (5/22, Liptak) 5 days ago. The article discusses the DOJs concern about a site called, whosarat.com, a site whose link I've not added because I don't want to encourage people to go there...sure, now you can find it easily enough, but you'll have to take that extra step first. Take a moment to think about whether that is right.

The Web site exposes the identities of witnesses cooperating with the government. The site posts names, mug shots and court documents and indicates what information the informant has agreed to provide in exchange for a more lenient sentence. "Last week, for instance, the site featured a Florida man who agreed in September to plead guilty to cocaine possession but not gun charges in exchange for his commitment to work 'in an undercover role to contact and negotiate with sources of controlled substances.'" The site claims to have information about "4,300 informers and 400 undercover agents, many of them from documents obtained from court files available on the Internet." The site spokesman, Anthony Capone, was quoted as saying, "Everybody has a choice in life about what they want to do for a living. Nobody likes a tattletale."

Is this ethical and should it be legal? Well, for starters, let's talk about what this kind of information might be used for - nothing legitimate. The only purpose is "witness intimidation, retaliation and harassment," a Justice Department official wrote. "The posting of sensitive witness information poses a grave risk of harm to cooperating witnesses and defendants." Some courts, following a DOJ recommendation, are removing plea agreements from electronic files. But this alone is not sufficient. Remember that trials are open to the public under the 6th Amendment to the US Constitution which states that, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." If sites like whosarat gain enough traction and make enough money, they can simply plant people in courtrooms to gather the same information.

Happily, the right to public trials is not absolute. Trials may be closed at the request of the government if the government can show "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." The government routinely asks that courtrooms be closed when under-cover officers or agents testify. Sadly, judges agree or disagree on a case by case basis, often placing these government officials at risk. These decision are generally based less on the overriding interest than on the judge's personal politics and that places an important prosecutorial tool at risk.

And before you agree with Mr. Capone that everyone does hate a tattletale and that this site is the greatest thing since sliced bread, remember that people are not only sharing information about drug dealers or white collar criminals. Before you decide that informants don't deserve special protections, remember that informants also share information about pedophiles, child pornograpy rings, wife beaters and rapists. Remember that undercover officers and agents are not just doing undercover drug buys, they are also posing as children in luring cases and catching people soliciting children on line. Are you sure that you can make judgements on that basis about who does and does not deserve special protection under the law? Are you sure that whosarat is such a good idea?

The Duke Affect

2007-05-19T14:13:00.000-07:00

This week's National Law Journal reports some predicable fallout on prosecutors as a result of the Duke case. In an interview with New Jersey prosecutor Paul DeGroot, DeGroot said that he "knew it wouldn't take long for the Duke University lacrosse rape case to wreak havoc on prosecutors. ...
'It's becoming a tool and a buzz word for defense attorneys to say, "Look what happened at Duke."' DeGroot reported personal experience in the matter stating that in recent drug case he was prosecuting, a defense lawyer tried prejudicing the jury by using the Duke case against DeGroot. "'He said to the jury, "We all know a prosecutor can indict a ham sandwich. Just look at what happened in that case down in Duke."' DeGroot objected immediately, adding that things were not done that way in his county, but the damage has been done, whether defense attorneys point it out or not.

The Journal adds that, "Prosecutors across the country are seeing fallout from the Duke case, as defense attorneys use it to discredit other criminal cases and paint them as overzealous prosecutors with something to prove. ... In Texas, one defense attorney recently cited the case during voir dire, and again in closing argument, in an assault case involving a teacher accused of pinning down a female student while other students beat her. The lawyer reminded jurors about what happened at Duke. The defendant was found not guilty in three minutes. ... 'Prosecutors should be worried,' said defense attorney Edmund 'Skip' Davis, the Texas attorney who cited the Duke case in the recent assault trial and plans to cite it in a rape trial next week."

In my role as former prosecutor and expert, I find myself constantly facing questions related to prosecutorial integrity. People regularly ask whether I knew prosecutors that withheld evidence or prosecuted cases where they did not believe that the defendant was guilty. I can safely say that I did not, and I knew many prosecutors in my career. While I find this trend disturbing and to be an extremely inappropriate tactic, it is not unique for the defense bar to use current media concerns against the prosecution. Whether it's exploiting the public's misinformation about forensic evidence or pointing to a particular case where there has been an instance of prosecutorial misconduct, defense attorneys will exploit media buzz for their cases. As always, prosecutors will have to mitigate this risk by raising these issues in voir dire rather than waiting for the defense attorney to blindside with some off-hand remark. Another way to mitigate this risk is bringing to the judge's attention that a particular defense attorney is known for making irrelevant and prejudicial comments to the jury about the Duke case. A good advanced warning from the judge to the defense attorney can also help mitigate this risk.

2007-05-11T14:22:00.000-07:00

Upcoming Court TV Appearance

On Monday, May 14, I will be appearing on Court TV's "Bloom & Politan" starting at 9 a.m. We will be discussing Phil Spector's murder trial. I hope you will tune in!

Also, wanted to point you out to a terrific blog, which was also the source of my hairbag etymology. It's called The Squad Room and you will definitely enjoy it!

2007-05-07T15:05:00.000-07:00

Technology and the Prosecutor

Colposcope. Toluidine Blue Dye. Forensic Nurse with Rape Crisis expertise. Forensic Nurse with Child Abuse Expertise. A Working Wire. Heck. A Working Computer! Just a couple of items on my law enforcement wish list.

In today’s New York Times, the front page article of the NY Regional Section was about how digital photography may be helping prosecutors obtain convictions in Domestic Violence cases. What is so advanced about digital photography? Nothing, but until now the tool available to the NYPD and to prosecutors in New York to record physical injury in a domestic violence or sexual abuse case was the Polaroid. What?!? A Polaroid?!? I bet some of you did not even know you could get a Polaroid any more. I appreciate the New York Times bringing attention to how much a now minor and fairly routine piece of technology can assist the prosecutions, but decent photographs documenting a crime or crime scene are only the tip of the iceberg.

I used to attend training on the latest technology available to law enforcement in criminal investigations. The frustration was finding out that while I worked in one of the richest and most populous cities in the world, none of these resources were available to me. Counties with only one or two full time prosecutors or even one part time prosecutor had tools at their disposal while I, one of 40 assistant district attorneys in the Bronx dedicated to the prosecution of sex crimes and domestic violence alone, had none.

In my first year at the DA’s office, I shared my desk with five other ADAs and my phone with 7 in a windowless room aptly called, “The Barn.” By my last year at the office, only supervisors and a select few felony prosecutors that could prove a need even had computers. The rest of us only had access to computers for writing up cases and those looked like something that Matthew Broderick used in War Games. The printers were still dot matrix. Seriously. In that year, I started to get interested in prosecuting on-line predators and “luring” cases. The detective I worked with and I had to borrow a laptop from the Secret Service because we could not get one through the state.

Availability of a Colposcope for examination of sexual abuse victims allows for an illuminated, magnified view of the cervix, the tissue of the vagina, and vulva. Photographs can be taken of these magnified images for use at trial to show injuries that are not visible to the naked eye. Toluidine Blue Dye helps to detect and enhance trauma with or without the use of a Colposcope. It works on wounds like that dye your dentist puts on your teeth works on plaque. It’s great stuff. The fact that sexual abuse victims are usually examined in the hospital by a resident without forensic knowledge or special training in collecting sexual abuse evidence and dealing with victims of sex crimes means that, often, evidence that could be critical to the prosecution is lost at the hospital. Forensic nurses on call for rape and child abuse cases that have special training in collecting such evidence and in dealing with sexual abuse victims are critical to successful evidence collection and documentation, especially when they have access to the right tools. Not once did I ever have an adult rape victim benefit from these tools. (Before and after images with and without Toluidine to the right)

And for that matter, what about availability of safe and reliable equipment for law enforcement on a day to day basis. Undercover officers conducting buy and busts often don’t have wires that work inside buildings. The result is that they either have to lose a buy (because most don’t occur on the street) or risk losing contact with their team if they enter a building to complete a purchase. And for that matter, next time you are walking down the streets of New York and see an officer with one of those clever tiny radios pinned to his lapel with a wire clipped to his shoulder and leading down to his belt, think about if you would want something a perp could strangle you with kept so conveniently close to your neck! And for that matter, what about the across the board failure of communications during 9-11? If that didn’t bring attention to the shortcomings of the technology available to law enforcement, nothing will.

Injustice Anywhere . . .: Thought for the Day

2007-04-30T15:41:00.000-07:00

Why I Left the DA’s Office

I received a comment a few weeks back from "Texan": "It seems like you enjoyed working as a prosecutor. Why did you quit? I am considering entering law school but the glut of unhappy lawyers is making me think twice about it."

I did love my job as an ADA and I’ve missed it since the day I left. Why I left is too hard to summarize in one paragraph. In fact, it took an entire book…my book is really about why I became an ADA in the first place, what it was like there and, ultimately, why I left -- Kind of a true crime memoir. I hope that you will all read the book but, that said, if I had to summarize in a few sentences the meat of why I left the DA’s office, I will first refer to a posting on Injustice Anywhere just a couple of weeks ago:

Injustice Anywhere . . .: Thought for the Day
"Sexual abuse cases are bad.Sexual abuse cases with a child victim are worse.Sexual abuse cases with a child victim and a child defendant are the worst of all."

Remember first that these are the kinds of cases I dealt with every day and it gets to you...

The second thing would be to say that I got tired of being reactive. ADAs can do a lot of good for people in terms of referring them to resources to get help and giving them closure. But when someone goes to law enforcement, the damage is already done. Something irreversible and terrible has happened that we could help someone to move on from but that we could never undo. I decided that I wanted to be a part of the process to prevent these crimes from occurring in the first place, which first meant leaving the DA’s office and writing a book about what it is really like – what is the evidence (or lack thereof) in these cases really like? What are the challenges ADAs face? Why don’t prosecutors often have the evidence that the public expects them to? Writing the book and being on my own has also given me to opportunity to lecture on child abuse, sex crimes and domestic violence prevention. Publishing this blog also gives me that ability, so I can write segments like “Child Safety 101.”

Being an ADA was the best job a lawyer could have, and I miss it every day. But in the end, if I can stop someone from having to be in that position in the first place, that would be an even more wonderful thing. Now I'm in-house with a corporation and I do all of this crime prevention work on my own time. While I miss work as an ADA, I love being in-house. It's a wonderful way to practice law - my job is to do the best I can for my client, the work is interesting, the people are wonderful. The company I work for is doing something to make the world a better place, so I can still feel good about what I do. If you love the law, which I do, being a lawyer opens up a world of possibilities. To those that are unhappy, I would say find a different job because being a lawyer does not have to mean working 100 hours a week and being miserable. Just poke around the links on this blog, Texan, and you will find a lot of attorneys that are passionate about their work and love their jobs - so don't give up on the lot of us yet!

2007-04-26T14:55:00.000-07:00

A Little Levity in a Dark World

I recently send an inquiry to the author of another blog as to definition of "hairbag". You see, hairbag is police jargon and I always thought it meant someone who was really into the job, or a buff...I thought I'd get a one line response and I got this wonderful etymology of hairbag...who knew...

"Hairbag" usually refers to an old-timer, but could be used to refer to a new cop who acts like he's been around a while - "These rookies think they're hairbags already" - that kind of reference. Hairbag could be used as a reference of appreciation of someone who's been around, seen it all - and now is a little crusty, cynical - the stereotypical hardened cop. Uniform looks a little mussed up, doesn't really care, probably gives the bosses a hard time about everything - that kind of seniority. The attitude that comes with spending fifteen years in a busy precinct, answering way too many radio runs, that kind of seasoning. A cop with two years on the job who "thinks he's a hairbag" is not an affectionate term. Someone who is too "into" the job would probably be called a "buff". That could also be used in a good way, referring to someone - also been around a long time, seen it all -but still into "the job" - "He's still a buff". Perhaps someone with 25+ years on the job who still likes being a cop, likes his job - maybe even writes a blog in his own time about cops - would affectionately be called "a buff". You could always tell when a new class comes out of the Academy; the new cops on foot patrol will inevitably be seen walking around with their portable radio in their hand, held up to their ears, making sure they don't miss anything. While the terms "hairbag" and "buff" could both be used in a ridicule fashion, I like to think of the more affectionate meanings for them. Hope that helps!"

Thanks, John! It did....I'm waiting for John to resend me a link to his blog and I will post it here when I get it...it was great.

2007-04-25T05:21:00.000-07:00

Response to Hypothetical

Nicely reasoned argument in support of prosecutors using deception in limited circumstances and where it does not shock the conscience.

Howard said "One caveat to the points above: some prosecutors play a closer role to police detective than others. In the Investigations Division, for example, oftentimes I was the investigator assigned. Why shouldn't I have the same tools at my disposal in my investigation of a case as a detective? Especially if there's no police detective assigned to the investigation.

"I think that when prosecutors are also investigators, they should be able to deceive, using the same standard as the police: it can't shock the conscience. So I can't tell someone that a loved-one is sick, and I'll allow them a visit if they'll tell me what I want to know. But I can tell someone that they should go ahead and talk, because their friend, who we're also questioning, gave them up.

"And does 9:12's hesitance include if a prosecutor in an investigatory role sets up a UPS drop, where on the instruction of the ADA, a police officer dresses up as a UPS deliveryman? That's deception at the instruction of the ADA, which would implicate the same issues."

2007-04-20T14:59:00.000-07:00

Hypothetical Number 2

A few weeks ago, I posted a couple of hypotheticals regarding ethical dilemmas often faced by prosecutors. One regarded informing a defense attorney that the only witness in a one witness case had died and after posting a few comments from others, I weighed in. The other hypothetical (link here) asks whether it is appropriate for a prosecutor to use a ruse to get information from a suspect as police officers often do. In my opinion, it’s not, and that opinion seems to be shared by most of the people that posted comments related to this hypothetical. As one reader (Joe) posted, “I think that a prosecutor's role is very different from a police officer's. The police officer is trying to close the case, the prosecutor is trying to seek justice. A ruse might be necessary to close a case, but is unethical in a court of law (at least one hopes).”

I agree with Joe’s assessment. A prosecutor’s role is very different from a cop’s. A prosecutor’s job is to do justice, which also does mean getting to the truth, but the prosecutor also has to limit their participation in the investigation to a more objective role of seeking the truth in light of the evidence. On a more practical note, if the prosecution conducts the investigation, they risk making themselves a witness in the case. For this reason, prosecutors (who incidentally are the worst witnesses) are often called to testify about statements that they’ve taken on cases or participation in a crime scene investigation.

Some jurisdictions have gone so far as to find that the prosecution’s use of a ruse is in fact improper saying that while it’s proper to test the credibility of a witness, it is not proper to test their credibility by misrepresentation. That said, there is nothing in the actual law that I am aware of the prohibits a prosecutor from using a ruse as means of obtaining information. In fact, it’s actual impropriety that is at issue here, but rather the “appearance of impropriety” that is a concern. The appearance of impropriety is, in fact quite important for a prosecutor. The rules of ethical conduct are fraught with references to “the appearance of impropriety,” and nowhere is that more important than for a prosecutor as a representative of the people. Faith in the prosecution in paramount to the success of the justice system and, indeed, it’s hard to have faith in a representative of the people that uses deception as a means to an end.

2007-04-19T07:12:00.000-07:00

Be Nice to Loners Campaign

I’ve been reluctant to comment on the tragedy at Virginia Tech. But I did finally see something today that made me want to say something. In this morning’s New York Times, there was a small article in the Arts section about a campaign that has been started on Facebook.com to be nice to loners. The article reported that someone on Facebook.com posted, “’AFTER WHAT HAPPENED ON 4/16/07, IM GONNA TALK & REACH OUT TO EVERY LONER.’ Others pledged to smile at people on the street, to greet quiet people and even to visit those who seem isolated.”

I appreciate a desire to look for an explanation for Cho Seung-Hui’s actions and a way to prevent such tragedies in the future. Do I think any amount of trying to reach out to Cho might have helped, however well intended? I’m not so sure about that. It seems that there were some efforts to reach out to this loner by his roommates that were rebuffed. And it’s hard to reach out to someone that is threatening. Also, there are some good indications that mental illness, perhaps serious mental illness, were at work here and no amount of good well can necessarily help in that situation.

That said, I appreciate this “Pay It Forward” type mentality and the relevant question to me is whether reaching out to loners can, in fact, prevent crime. I think that, in some cases, it can. Loners, especially high school and college age loners, are targets for all kinds of predators. They are targets for cults. In an effort to belong, they may turn to drugs or gangs. Loneliness makes people easy victims for sexual violence if, in an effort for companionship or acceptance, people go home with strangers or someone they don’t know well. Lonely people may also be more tolerate of mistreatment by others because they would rather be with someone and abused than be alone. In drastic circumstances, loners join organizations that are fringe or promote violence in an effort to gain acceptance.

So I do think reaching out to others can prevent crime. And, that aside, it’s good for the soul. We can all relate to how difficult it can be to be a teenager or a young adult, especially a lonely one. I, for one, am a big believer in the power of an individual to make positive change and I hope that this Reach Out to Loners Campaign takes hold and helps someone or many someones. When society faces great tragedies like the Virginia Tech massacre, the only thing that one can hope for is that some good comes from the tragedy. That good can be changes in the law that prevent violence in the future. But that good can also be something that is more grass roots and something that an individual can participate in to make a difference. The Reach Out to Loners Campaign is something like this, and this is something that is very good.

2007-04-15T14:27:00.000-07:00

LONG OVERDUE UPDATES ON WHAT IS GOING ON IN THE GOOD OLD US OF A

Many apologies for the long absence! I had some surgery (I'm fine, thank you) and recovered just in time to get a bad cold, so I am sorry to offer nothing new in so long. I have a friend in law enforcement that can't post on a blog due to his position, but he does send me all kinds of interesting articles, some of which I use here, making him almost a silent partner in this venture. Here are a few goodies he sent me from around the USA.

Project Safe Childhood Targets Internet Sex Predators. The Spokane (WA) Spokesman Review (4/11, Russell) reports from Boise, ID, "Children throughout Idaho and the nation are being victimized by sexual predators who track them down on the Internet, a consortium of federal, state and local law enforcement officials warned this morning as they launched 'Project Safe Childhood.'" The Review continues, "The push, headed by the U.S. Department of Justice, is aimed at both educating parents and teens about Internet dangers, and increasing law enforcement cooperation at all levels in finding and prosecuting Internet predators and child pornographers. ... 'It is not an exaggeration to say that we are in the midst of an epidemic of sexual exploitation of our children, brought on largely by the Internet and new technology,' U.S. Attorney Tom Moss said at a Boise news conference announcing the effort. At any time, he said, there are an estimated 50,000 predators 'trolling for child victims on the Internet.'" The Review adds, "Assistant U.S. Attorney Jim Peters said there are 20 cases currently being investigated or prosecuted in Idaho. They include that of a Boise man who had served prison time for child molesting and was caught producing and sharing child pornography on the Internet and operating a child-sex Internet file-sharing site. That offender is up for sentencing next week and faces life in prison. ... Peters said child pornography is not innocent photos of children, but 'crime scene photos of children being raped. ... These are gruesome photos that are being traded over the Internet.' ... Moss said a high percentage of those convicted on child porn charges admit to also having actual sexual contact with children."

And in the ultimate example of hairbag honesty, Wisconsin Sheriff Gives Himself Traffic Ticket. Dennis Kocken, the sheriff of Brown County, Wis., said Wednesday that he truly believed that no one was above the law - not even himself. He wrote himself a ticket last month after he was involved in an accident in the Village of Howard, outside Green Bay." The New York Times continues, "Sheriff Kocken said the accident occurred after he started following a driver who had sped past him. As he moved into the lane behind her car, his attention was briefly drawn to a snowblower near the edge of the road. ... 'I was picking up speed,' he said, 'and wouldn't you know it, she slowed down to turn left, and I hit her.' There were no injuries." The Times adds, "Sheriff Kocken, 52, said he talked to other police chiefs, who said he did not deserve a ticket. ... 'I still didn't feel good about it,' he said. 'I couldn't sleep that night; it was bothering me.' ... He cited himself for making an unsafe lane change, and the fine was $160.80. He paid it on Wednesday, he said. ... And what about the driver of the other car? She got a ticket for not wearing a seat belt."

Firearm Rentals At Firing Ranges Require Few Checks. The AP (4/12, Gorlick) reports from Worcester, MA, "The 35-year-old woman handled her 9 mm Glock with ease. For three straight days, she honed her aim and hit bull's-eye after bull's-eye from the firing line at the Boston Gun Range. ... Then she put the gun to her head and killed herself." The AP continues, "Like countless others who have rented guns at ranges across the country, she did not have a firearm license. And as a convicted felon with a restraining order against her, she wouldn't have been able to get one. ... Even in a state known for some of the nation's toughest gun control laws, unlicensed shooters in Massachusetts have to do little more than swear they are not criminals, drunk or mentally unstable to fire their choice of pistols or rifles." The AP adds, "While federal law requires background checks on anyone who wants to buy a gun, no such review is necessary for someone who wants to rent one at a shooting range. ... 'The rules are all up to the states,' said Jim McNally, a spokesman for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. 'There is no federal regulation of ranges.'" The AP notes, "Many ranges have gun renters sign forms attesting to their clean backgrounds, but liars rarely face consequences. The ATF and local police chiefs may occasionally review the paperwork, but they are not required to. Some ranges shred the forms after a few days; others keep them for years. ... A spokesman for the Brady Campaign to Prevent Gun Violence said tighter shooting range regulations are not a high priority for the organization. And few people have brought as much attention to the issue as Worcester Police Chief Gary Gemme. ... The chief is pushing for a city law requiring anyone who wants to rent a gun to have a firearm license. He said such a rule would weed out people with criminal backgrounds and mental illness, like the woman who committed suicide at the Boston Gun Range in Worcester last October. She was convicted in 1999 of passing a forged check. She also had a restraining order against her because of a domestic dispute, which also disqualified her from obtaining a firearm license."

2007-03-15T14:57:00.000-07:00

My Answer…

Sorry if the suspense was killing you and that it’s taken so long for me to post my take on one of the hypotheticals I posed a couple of weeks ago. In case you did not see it, the hypothetical was as follows:

Lets say that you have a one witness case that you are about to take to trial. It is a case where you believe in the defendant's guilt and where proof beyond a reasonable doubt is possible. Without that one witness, however, you cannot prove the case. The morning that you are about to start trial, you get a call that your witness died. You go to the courtroom, but before you can tell the judge that you have to dismiss the case, the defense attorney says that his client wants to plead guilty. Do you take the plea or do you tell him your witness is dead and that you have to dismiss the case?

This question was posed to me during my first interview with the DA’s office and, as I understand it, most of my colleagues were asked the same question. At the time, I assumed that the answer that my interviewer was looking for was that I would not tell. I took a gamble and told her what I really felt. My answer was that I would tell the defense attorney that my witness had died and I would do so because it seemed like the ethical thing to do. Above all, prosecutors must be ethical. I thought that I would not get a call back after that answer, but I did.

About four years later, I was faced with the following scenario. An 8 year old girl from Guayana reported to her mother that their 39 year old male Guyanese tenant was sexually abusing her. After interviewing the child, I had no doubt that she was being truthful. The child had detailed, age inappropriate knowledge of the sexual acts that she alleged had occurred, including oral sex penis to mouth. I proceeded to indict the case.

A couple of months before the case was due to go to trial, I found out that the mother had sent the girl back to Guayana. I was attempting to get contact information from the mother so that I could bring the child back for trial, but the mother was uncooperative. At a court appearance shortly before we were scheduled to go to trial, the defendant offered to plead guilty. I took the plea and did not disclose that the child was unavailable.

Granted, this scenario is a bit different from my hypothetical. The witness was not dead, she was just in another country. I did not know whether I would be able to get her back to the US for trial or not. The odds were that I would not be able to. In the end, when faced with a similar scenario, my answer was quite different than when faced with the hypothetical. There were several reasons for this, but the one that stands out the most is that I did, indeed, believe that the defendant was pleading guilty to a crime that he had committed. Perhaps if my witness were really dead or if the evidence in the case were not as strong, my answer would be different. But it was an interesting thing to learn about myself and about my perception of whether this was ethical. I do not think this was unethical. We were not on the eve of trial. The evidence was what it was and the defendant could have fought the charges, but he chose not to. In the end, the defendant served three years and then was deported back to Guayana. I only hope that he did not find another victim there.

I will post the answer to my other hypothetical soon!

2007-03-09T04:57:00.000-08:00

Upcoming Appearance

On Monday, March 12, I will be appearing on Court TV's "Nancy Grace: Closing Arguments" from 3 - 5 pm.

A Record of Failure at Center for Sex Offenders - New York Times

2007-03-05T15:15:00.000-08:00

A Record of Failure at Center for Sex Offenders - New York Times

An interesting article on the cover of today's New York Times regarding an abhorrently run facility for the rehabilitation of post-incarceration sex offenders. These types of facilities are very in vogue right now and, in fact, were one of the topics of conversation when I recently appeared on the O'Reilly Factor. A different question than whether a terribly run facility (like the one described in this article) can succeed, which is can't, is whether a well-run facility, with good clinicians, can. In my opinion and in my experience, recidivism for pedophiles is almost 100 percent. I can't speak as well to sex offenders generally, but I would imagine that it depends on the nature and severity of the crime. I'm left to conclude that these facilities are of little or no value, other than to continue incarceration for sex offenders, which may be the ultimate veiled purpose anyhow. But what are we really doing here? Like any criminals, sex offenders look for their own kind, learn from each other and sometimes even scheme together. (See, for example, the article I previously linked to entitled Posing as a Family, Sex Offenders Stun a Town - New York Times ). In a way, as this article points out, these facilities give sex offenders an environment to feed off each other's pathologies, learn from each other, band together and perhaps even get worse. I'm not saying that counseling should not be provided to sex offenders - in should, if nothing else than so we can continue to learn what makes someone a sex offender and how to mitigate risk. But why not provide it in the standard incarceration setting or in a mixed halfway house rather than creating facilities for sex offenders only? A place where it almost seems normal and therefore acceptable.

Wondering what defense attorneys and mental health professionals think about this one.

Blonde Justice: Testing the Waters

2007-02-27T19:50:00.000-08:00

Blonde Justice: Testing the Waters

The theme on the law blogs seems to be hypotheticals and here is a link for one from Blond Justice. Her hypothetical is:

"45 year old man, never arrested for anything, at all, in his life. He is happily married, has two beautiful children, a good solid, but not overly lucrative, job.He did exactly what you see on Dateline. He chatted online with what he believed to be a "13 year old girl." The subject matter of the chats was very explicit, and he sent explicit photographs of himself to her. After a number of chats, he set up a time to meet the girl. He brought condoms and lubricant. He was arrested by police at the meeting place."

There have been some terrific responses ranging from give him a slap on the wrist to execute him. I highly recommend clicking the link and reading through them. It tellls you a lot not just about how different attorneys think, but also how laws vary from state to state or even county to county. My response was rather academic:

"As a former child abuse prosecutor in the Bronx, I think the odds are that the top charge on the indictment would be an attempted rape in the first degree. Specifically, this would be an attempted statutory rape under section 130.35 of the New York Penal Code. New York law makes it a higher level offense (a rape in the first degree, a class B violent felony offense) first if the child is under 13 and the victim over 18 and then if the child is under 11. In this case, since the defendant is over 18 and the child 13, the top charge would be a 110/130.35 or attempted rape in the first degree. An attempt lowers the level of the crime by one degree, so depending on whether this is a predicate felon, we are looking at a top charge on the indictment of a C violent felony punishable by anywhere from 3 1/2 to 15 years. A plea usually involves an agreement to allow a defendant to plead guilty to a charge lower than the highest charge on the indictment. My guess is that in the Bronx, we would offer this guy a D violent felony and 2 years of jail assuming he's not a pred. Since juries do not tend to like these cases in the Bronx as they see this as entrapment by the police, we may even go lower and allow the Defendant to take the E violent felony and 1 1/2 years in jail. "

Prosecutorial Ethics - Plea Negotiations and Brady Material : Austin Criminal Defense Lawyer

2007-02-23T11:00:00.000-08:00

Prosecutorial Ethics - Plea Negotiations and Brady Material : Austin Criminal Defense Lawyer

A particularly erudite response to my hypotheticals by Austin Criminal Defense Lawyer!

"Since I never interviewed with a County or District Attorney’s Office, hypotheticals like that take me back to my law school days…let me give it a shot.

"There’s really two separate questions being asked here (which is what makes it interesting): (1) As a prosecutor, are you required by Brady v. Maryland to disclose the unavailability of witnesses to the defense attorney? (2) If not, should you anyway?

"My off the cuff guess (read: I didn’t bother to research it this morning while writing this post) is that the caselaw interpreting Brady doesn’t require the prosecutor to disclose that information. If anyone out there knows of caselaw to the contrary, please contact me, because it would somewhat put the issue to rest. (I’d also like to think that the best defense lawyers out there do thorough investigations, including, of course, interviewing all witnesses…but it sounds like the witness just died, so I can see the attorney not knowing.)

"The second question therefore becomes “Under what circumstances should you disclose this information?” In a lengthy comment WindyPundit suggests: There's a lot to be said for telling the defense attorney how lucky his client is and dismissing the case, just to improve your rep as a straight shooter.

"True, but not all prosecutors are concerned about their reputations in the criminal defense bar. My experience tells me that the defense lawyer needs to worry about his own reputation for truthfulness and honesty, more than a prosecutor need worry about his. Sarena promises to give her own answer soon, but states that she thinks most comments so far are coming from the defense perspective, and would like other prosecutors to weigh in first…(that means you too Steanso) ."

Steanso???

2007-02-22T07:46:00.000-08:00

Yesterday, I appeared on the O'Reilly Factor with Marc Klaas to discuss child abuse laws (or lack thereof). You can catch the discussion about this important subject on the Bill O'Reilly website at www.billoreilly.com. I was particularly impressed with Mr. Klaas who is remarkably articulate, realistic and grounded about this subject given the unimaginable horror that his family has faced. Please take some time to look at the wonderful organization that he's founded at www.klaaskids.org. The site is full of excellent resources and information about protecting our children. This was also the featured topic on Oprah yesterday. It's heartening to see these issues finally being dealt with by the media head-on!

2007-02-16T05:03:00.000-08:00

Getting Some Interesting Responses:

Just wanted to share some of the responses I got to the last two questions I posed before I put in my two cents. My guess is that I'm hearing mostly from defense attorneys: I'd love to hear from some prosectuors!

Anonymous said...
I think that a prosecutor's role is very different from a police officer's. The police officer is trying to close the case, the prosecutor is trying to seek justice. A ruse might be necessary to close a case, but is unethical in a court of law (at least one hopes)

Anonymous said...
I would say that the witness is dead - and perhaps hope that the defense counsel does not realize how important the witness is to your case. Justice should never be turned into a win-loss scenaro, prosecutors should aim to find the truth.

Gideon said...
That's easy: Do the right thing and inform the court about the witness' death.Actually, thinking about it further, wouldn't candor to the court require that you inform the court that your only witness is now unavailable?

Windypundit said...
(I wasn't going to touch this one for fear of saying something stupid, but since you want a debate, I'll give it a shot. However, I'm going to hedge my bets by arguing both sides.)First of all, if this is a relatively minor crime, then even if you could take the plea, I imagine there's a lot to be said for telling the defense attorney how lucky his client is and dismissing the case, just to improve your rep as a straight shooter.On the other hand, you do have an obligation to your employer and the victim...My inner weasel says that how the defense manages his case is not your problem, and if his client wants to plea, you're free to take it.You don't know why he's offering a plea. Just because you think your case is a loser doesn't mean you're right. For all you know, his client bragged about the crime at a party where someone had a video camera, and a video of his confession is already posted on YouTube, and he's just hoping nobody at your office has heard about it yet. Take the plea.Here's a question: Could you take the case to trial without this witness? I'm not asking if you could win, but would it be ethical to present your unwinnable case to the court and let the judge or jury make the call? If so, if it's good enough for the court, then it's good enough for the defense. Take the plea.On the other hand...you can't lie about evidence in discovery, can you? You couldn't invent a fake lab report implicating his client with a DNA match and then turn that over to him to try to pressure him into a plea. The materials you give the other side in discover have to be accurate.What if instead of a witness, you had damning DNA evidence? On the morning of the trial the director of the crime informs you that you were sent the results to a test from a different case, that your test results were irretrievably lost, and that there wasn't enough material left for a new test.Your requirement to provide accurate discovery probably requires timely updates or something like that, doesn't it? I'm not sure what "timely" would mean, but I'm pretty sure you'd have to tell them before entertaining a plea.If that's right, it would make sense if the same rules applied to witnesses. For all I know, your witness list is part of discovery and has to be updated in a timely manner as well.I think you have to tell the defense about the dead witness. That's my final answer.

2007-02-15T14:09:00.000-08:00

Another Question

My last question did not spark quite the debate I'd hoped for...yet...so instead of telling you what the answer is, both from a legal perspective and from my perspective, I will throw another question out there....

It's well established that a police officer can use a ruse to get information from a defendant. For example, in one of the rape cases I handled, we found a discarded condom outside the apartment of the person we suspected of committing the crime. The suspect lived one floor up from the victim, who could not identify him because he wore a mask, but he fit the description in terms of race and build and he'd been convicted of rape twice before. There was semen in the condom, but we had no DNA of the defendant. The detective bought another condom (same brand) and put a finger print on it, dusting it with fingerprint powder. When he interviewed the defendant, he showed the defendant the condom and told the defendant it was his fingerprint. The defendant (kind of) confessed. In the end, his DNA matched that of the semen in the condom and there was DNA from the victim on the outside of the condom.

Should a prosecutor be able to use a ruse to get information from a defendant or a witness? It's not illegal, but is it ethical? If not, why not? Why is it any different for a prosecutor than for a police officer?

2007-02-13T06:45:00.000-08:00

D.E. Epfnord left comment on my post "Who Decides When to Prosecute?

"It's interesting to see the thought process behind when to prosecute. What sort of plea deal would you make with someone who was unlikely to be convicted at trial? "

This is a great question and a hard one to give one answer to. In the Bronx, usually the best deal we can get and based on the type of case. We would generally have a sense of what that might be based on the case. The standpoint of the prosecutor is that the guilty plea means that the person is guilty and the sentence is, therefore, justified without having to prove the crime beyond a reasonable doubt. Defense attorneys may counter that innocent defendants can be compelled to plead guilty by fear of a greater punishment after trial. This is true, but I still feel that it's the rare exception and not the rule.

In the Bronx, we lacked the time and resources to prosecute cases that did not have strong evidence. In fact, we usually had additional evidence of the defendant's guilt that we could not introduce at trial, such as a prior history of committing similar crimes, or compelling hearsay evidence. Only once in my entire career as an ADA was I compelled to prosecute a case where I was not very certain of the defendant's guilt. In that case, I presented all of the contradictory evidence to the defense attorney and to the jury so that the jury could make a decision based on all the information that I was allowed to provide them with. Perhaps in other jurisdictions, there is more time and money to pursue hard to win cases but even there, prosecutors don't generally present cases where the evidence it not compelling.

Here is an interesting question in response that I will leave for the reader to comment on for now and I will give you my answer later. This is a typical hypothetical offered by DA's offices when interviewing prospective ADAs. Lets say that you have a one witness case that you are about to take to trial. It is a case where you believe in the defendant's guilt and where proof beyond a reasonable doubt is possible. Without that one witness, however, you cannot prove the case. The morning that you are about to start trial, you get a call that your witness died. You go to the courtroom, but before you can tell the judge that you have to dismiss the case, the defense attorney says that his client wants to plead guilty. Do you take the plea or do you tell him your witness is dead and that you have to dismiss the case?

2007-02-12T15:11:00.000-08:00

Who Decides When to Prosecute?

I “volunteer” myself as a resource for some rape survivor listserves and one issue that occasionally surfaces is frustration or anger at the prosecution for handling of the case. The anger is usually because the prosecutor will not prosecute the case or takes what the victim perceives to be too lenient a plea. Sometimes the anger is even directed at the prosecution going forward with the prosecution even though the victim or the victim’s family wanted to drop charges.

Clearly, the prosecution ultimately decides when to prosecute, when not to and when to take a plea and this decision is based on many factors. The wishes of the victim are a major consideration but so is the strength or weakness of the case. Another big factor is where you are prosecuting your case. The acquittal rate in the Bronx is over 50% while in Westchester County, New York, one county north, conviction rates are quite high. The prosecutor in the Bronx is much more likely to take a lower plea than the prosecutor in Westchester just to ensure punishment and a record.

Is this fair to the victim? Even if this is not fair to the victim is it in the interest of “the people?” After all, prosecutors do not represent any one individual. Prosecutors represent the people, which mean the victim, the county, the state and even the defendant. Bronx juries do not like to convict and often, in the Bronx, we found ourselves agreeing to take pleas on cases that seemed lenient, especially on those that lacked sufficient evidence, just to ensure that the defendant got some kind of punishment and that he had a record in case he did it again. Sometimes, we prosecuted cases where the complainant did not want to press charges. For example, I prosecuted a terrible rape/kidnapping case where the defendant held the victim hostage for 3 days without food or water while he repeatedly raped and beat her. The victim escaped by chewing through her restraints and running out of the apartment in nothing but a rope on a cold January night. The victim did not want to proceed and had, in fact, gotten back together with her assailant by the time of the trial. I intended to prosecute the case anyhow.

I would guess that as the survivor of a rape, many feel that the decision is their own. What is the obligation, therefore, if the complainant wants to go to trial even if it means a likely acquittal versus taking the plea....even if that means that the person is likely to walk and therefore do it again and without a record? Or does the prosecutor have an obligation to drop the case if the complainant wants to even if the crime was violent, even if it means that the person is likely to commit another crime against someone else or, more likely, against that same person and when it will be worse the next time?

Posing as a Family, Sex Offenders Stun a Town - New York Times

2007-02-04T18:50:00.000-08:00

While you watch the Super Bowl, I scour the papers for today's most interesting crime stories....

Posing as a Family, Sex Offenders Stun a Town - New York Times

Frightening story about a a 29-year-old convicted sex offender who "kept a youthful appearance with the aid of razors and makeup" and enrolled in a local school as a 12-year-old!!!

Also, more about Ronell Wilson, the 24-year-old sentenced to death by a New York Federal jury for the murder of two cops. A Moment in Court, an Impact Less Fleeting discusses the long term possible impact of Wilson's final moment in court when he stuck out his tongue shortly after being sentenced. At who and why has been the subject of much debate by experts and in the papers.

2007-01-31T15:31:00.000-08:00

Death Penalty in New York

All over the New York papers today was the announcement of a Federal Jury sitting in New York giving the death penalty to a convicted cop killer. This is particularly notable as there is currently a court ordered “moratorium” on death penalty under state law. There has not been an execution in New York since 1976.

The death penalty in New York has taken some interesting twists and turns. It was most recently reinstated in1995 under Governor Pataki. A little bit of personal trivia -- I was the second seat on the first potential death penalty case in New York after reinstatement, The People v. Michael Vernon, a quintuple homicide that occurred right before Christmas. In that case, the Bronx District Attorney did not seek the death penalty against Mr. Vernon because he had a history of psychiatric illness, an exception to the death penalty under then New York law.

On June 24, 2004, New York's highest court held that the state's jury instructions on the death penalty were unconstitutional under the state constitution. This ruling was based on a jury instruction indicating that a jury decision to execute or sentence a convicted defendant to life without parole had to be unanimous. Anything short of a unanimous decision for execution or life without parole and the court would sentence the defendant to life imprisonment with parole eligibility after serving a minimum of 20 to 25 years. This “deadlock” instruction is unique in the country in that the sentence imposed in the event of a deadlock is a less severe one than the jury is allowed to consider. The court’s concern was that "the choice is driven by the fear that a deadlock may result in the eventual release of the defendant." The court found that the constitutional defect in the existing statute could only be cured by passage of a new law by the legislature. Thus, while the death penalty does, in fact, exist in New York, there is a court ordered “stay” until the constitutional issue is resolved.

Today’s Federal death sentence is the first in New York in fifty years. The death penalty was last awarded in a federal case in New York in 1954, for a bank robber who killed an FBI agent. What was it that swayed New Yorkers to sentence 24 year old Ronell Wilson to death? He was convicted shooting two undercover cops in the back of the head, one while he plead for his life. But I don’t think that would be enough to push New Yorkers over the edge. There have been other high profile capital cases without the same result. Jurors indicated on a verdict sheet that they did not believe Wilson had taken responsibility or shown remorse. They agreed he "represents a continuing danger to the lives and safety of other persons".

2007-01-30T09:20:00.000-08:00

Appearance on Nancy Grace for Tomorrow Cancelled

Sorry folks. Appearance on Nancy Grace for tomorrow is cancelled. They wanted a defense attorney and lord knows I can't help them there.

2007-01-29T11:15:00.000-08:00

Ethics and the Prosecutor

I'm sorry for the extended absence. Bombarded with work, layed out with the flu (typing from the sofa in PJs right now) and so it goes. But, I have recently been introduced to some of the writings of a currently practicing fellow prosecutor, Robert Don Gifford. His articles are particularly well written and well thought out and wholly readable. One article of particular interest is: Ethics and the Criminal Prosecutor Guilt Shall Not Escape nor Innocents Shall Suffer. The article analyses prosecutorial ethics under Oklahoma law, but his analysis is equally applicable to all prosecutors. Toward the beginning of his article, Gifford quotes United States Supreme Court Justice William O. Douglas stating that a prosecutor's role “is not to tack as many skins of victims as possible to the wall, [but] to vindicate the right of the people as expressed in the law and give those accused of crime a fair trial.”

I have vigorously and repeatedly maintained here, in my book and when I speak that the possible innocence of a defendant weighs far more heavily on the mind and heart of the prosecutor than does the desire to convict compel him or her to take improper action. It is the mantra of the prosecutor that duty is not to convict but to do justice. There are many defense attorneys that have reached out to me since I started blogging and since my book came out to tell me that, in their experience, I am an anomaly or that from what they have witnesses, adherence to this credo is the exception and not the rule. Well here is another prosecutor telling you otherwise.

Gifford's article explains it quite eloquently and I won't summarize what he's written here. Suffice it to say that it is the very fundamentals of a prosecutor's training to do justice and to give the defendant a fair trial whatever the outcome. While there are, of course, always exceptions, by and large defense attorneys believing that the prosecutor is doing otherwise then seeking justice is part of the nature of the adversarial process. If I believed every defense attorney that told me "my client is innocent" without doing further investigation, I would have freed many guilty people. But this does not mean that I did not investigate the claims. I always did as do most of the prosecutors I know.

2007-01-23T19:24:00.000-08:00

Woops!

Got crazy at work the last couple days and neglected to post that I was not on Nancy Grace today. The appearance was moved to January 31, so please tune in then--Court TV from 3 - 5 pm.

2007-01-19T14:44:00.000-08:00

Behavior and Veracity

I appeared on Court TV’s “Bloom & Politan” yesterday to commentate on the San Diego prosecution of Cynthia Sommer; a 32 year old California woman accused in the poisoning death of her 23 year old husband. The defendant in this case took the stand and the prosecution was just starting cross-examination during my appearance. I’m not sure where the prosecution was going with the case, but it seems that the core of this circumstantial case (No poison found. No witnesses. No confession) focused on the defendant’s behavior after the death. Specifically, that the defendant spent the approximately $250,000 in life-insurance money to have lavish parties, get breast implants and get a tattoo that her husband had wanted but could not afford. At the risk of sounding like a defense attorney, I sure hope the prosecutor had more to offer because to me, that behavior is proof of nothing.

As a prosecutor I learned that there is no pattern to how people grieve or react to trauma. In fact, the bulk of my vior dire often focused on whether the jury would hold it against the victim if they did not cry. In my experience, most rape victims did not cry on the stand and often they had a very flat affect while testifying. As someone that was formerly in law enforcement, I unfortunately knew some 9-11 widows. Most of them behaved exactly the way this woman did – spending lavishly on trips or clothing or cars. Many of them got commemorative tattoos. I even recall one 9-11 widow being criticized in the local papers for spending thousands of dollars on shoes. I don’t for a second doubt the agony that these women suffered or the magnitude of their grief. I think it was simply a coping mechanism. Or perhaps it was a fatalistic attitude. When someone so close to you dies, you feel your own mortality. Perhaps they just figured that person they lost would want them to spend and enjoy while they could because you suddenly realize that you could also die at any time.

The other thing I learned is that people do hold it against victims and defendants when they behave in a way that the juror thinks they themselves would not behave. They think, “If I was raped, I would cry,” or “If my husband died, I would not have a party.” The truth is that you never know how you will behave when you have been traumatized or you are grieving. In a criminal case, you have to look at the facts and at the demeanor, for sure. But jurors should never judge anyone, victim or defendant, based on how they think someone should act because you never know until you are in their shoes.

Injustice Anywhere . . .: Why Don't Parents Hire Lawyers for Their Kids?

2007-01-17T07:01:00.000-08:00

Very good discussion from my friend at Injustice Anywhere....do give it a read.
Injustice Anywhere . . .: Why Don't Parents Hire Lawyers for Their Kids?

2007-01-17T06:54:00.000-08:00

Upcoming TV Appearances

Hello all. Sorry to have not written anything of substance in a couple of weeks. I've bee on the road a lot for work. I do hope to do some serious posting in the next few days and to make it all up to you. For now, just wanted to let you know about two upcoming Court TV appearances.

Tomorrow, January 18, I will be on Court TV's "Bloom & Politan" from 9 - 11 am.
On Tuesday, January 23, I will be on Court TV's "Nancy Grace" from 3 - 5 pm.

Hope that you can tune in!

2007-01-01T08:50:00.000-08:00

Upcoming TV Appearances

Happy New Year to all! I will be appearing on Court TV's "Nancy Grace: Closing Arguments" tomorrow from 3 - 5 pm. We will be discussing the case of Florida v. Samuels, the prosecution of a millionaire for the attempted murder of his ex-wife and her new husband.

On Friday, January 12, 2007, I will be appearing on Court TV's Bloom & Politan.

I wish you all a safe and happy year!

2006-12-30T06:09:00.000-08:00

Battered Women as Defendants

I thought I'd start the new year of blogging by oeping a dialog about battered women; defending them and prosecuting them. When most people think of a battered woman, they think victim. By and large, this is how I interacted with battered women--as the victims in my prosecutions. But once in a while, a battered woman, or alleged battered woman, fights back and becomes a defendant, with battered woman's syndrome being the defense.

As domestic violence prosecutors, we are charged with defending battered women on a regular basis. But on the rare occasion that the battered woman became the defendant, we were also charged with her prosecution.

It's a hard thing to re-set ones thinking and view the battered woman or alleged battered woman as a possible criminal. Even more than that, it's hard to put aside the presumption that the battered woman is not guilty of a crime and consider that she might be a criminal. All of that said, I'm glad for the battered woman's defense because it can be a legitimate one.

If there are any defense attorneys out there that have used the battered woman's defense, I'd be interested in hearing your thoughts since you are usually defending these women's abusers rather than defending them. Is it different? Perhaps easier and more rewarding?

2006-12-28T07:09:00.000-08:00

Brass Knuckles

I received the following comment from a reader: "Someone on the web equated this ring to brass knuckles . . . although I couldn't find it in the penal law, I have always heard those are illegal. This wouldn't be considered as such? You obviously would know, as a former prosecutor, but I was curious :) "

This is correct. At least in New York, "metal knuckles" are illegal:

Section 265.01 Criminal Possession of a weapon in the fourth degree:

A person is guilty of criminal possession of a weapon in the fourth degree when:
(1) He possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star"....

Interestingly, when this ring first came out, is opened across four fingers and now it seems to stay closed and just have a metal barb for use like you might put keys between your fingers. Perhaps they were forced to modify the ring for exactly this reason.

Another bit of New York legal trivia: assault with a dangerous instrument or deadly weapon elevates the level of an assault in New York to a higher crime. If you are trained to a certain degree in fighting, this can include your hands where otherwise it would not. I had a case that was elevated for such a reason because my defendant, who punched his girlfriend in the face, was a "Golden Gloves" champion and, therefore, his hands were registered lethal weapons.

2006-12-22T13:39:00.000-08:00

Prosecutor's Christmas Gift Recommendations

Here is the article you've all been waiting for. The three must have stocking stuffers according to the critically paranoid former sex crimes prosecutor.

1. The Subtle Safety Ring by Redstart Designs. Their description:
"The combination of sterling silver and red acrylic gives this piece a modern appeal. With its comfortable contours this ring can be worn all day as a subtle piece of jewelry. To give the wearer confidence on a dark walk home, the aggressive point of the ring can be rotated outward so that the ring replaces the common practice of a woman placing her keys between her fingers."

2. UltraBlast!—™ Whistle Keylight available at the Container Store.
"What a Blast!! Alert others you're in danger, signal that you need help, or hail even the most hard-of-hearing cabby with our combination whistle and keylight. The whistle produces a penetrating, piercing alarm sure to frighten away wild animals, muggers, and other nuisances. The ergonomically designed whistle also features a quick-release key holder and a light with a 12-hour lithium battery. This unique light features a focused, LED high-intensity beam that aids in night vision. It illuminates the key and keyhole simultaneously so you won't fumble in the dark. The keylight is also perfect for reading maps, menus, or stage bills in the theater. It's a winning combination of a bright, energy efficient light and a personal defense tool that's ideal for boaters, joggers, and those who work or go to school in the evening. It fits perfectly in a purse or pocket, and makes an outstanding gift or stocking stuffer. "

3. Also perfect for your college kid or friend in a bad neighborhood: A portable Doorknob alarm. There are a whole bunch of companies that make these and they are under mostly under twenty bucks: This security alarm transforms an ordinary doorknob into a burglar alarm. The alarm will sound as soon as the outside doorknob is touched. No installation required: simply hang on the inside doorknob of any door. Just be aware that many of these alarms only work on wooden doors!

And that's my list! Have a safe holiday everyone!!!

2006-12-21T19:35:00.000-08:00

Armed and Famous...

Comments from the peanut gallery...Prosecutors and Defense Attorneys, agreeing, at least when it comes to really bad television...

Ken Lammers said...
Reno 911 - for real.

ummm . . . not sure who Trish Stratus is, but when I googled her, on my work computer no less, I got pictures my boss would be very unhappy to see in the office.I cleared the screen at something like lightning speed. However, I'll probably have to do some further research tonight.

123txpublicdefender123 said...
Yeah, Ken. Be sure to do all the necessary "research." ;) I think this is a terrible idea, and I don't understand how the city attorney in Muncie didn't kill this idea before it got this far. It sounds like a lawsuit just waiting to happen. It also sounds like they're opening themselves up to all sorts of legal arguments in any cases they try to prosecute. It may all amount to nothing, but why would you want to risk all that?

2006-12-18T17:40:00.000-08:00

Mister DA is back!

Glad to see Mister District Attorney up and posting again and many thanks for recommending my book! If you are looking for things to post about without giving up your cover, here is an idea. How about your comments on CBS's upcoming celeb-reality show, "Armed and Famous." The concept of the show is that Erik Estrada, La Toya Jackson, Jack Osbourne, Wee Man and Trish Stratus (who is she?) will be reserve officers in Muncie, Indiana. Maybe I have no sense of humor, but I sure would not want this crew carrying a gun (yes, they will be packing) in my home town....God forbid someone genuinely needs help. I know, I'm no fun. But when is enough enough?

2006-12-14T19:29:00.000-08:00

How People Found Me...

As many of you know, once in a while I like to post some interesting searches that found this blog. Here are some of the latest:

gwaltney chp
guillermo morales and bombs and law case (excellent use of the boolean search)
sarena straus (thank you for spelling my name right)
twin brothers double jeopardy
pitbull baby's toes Nancy Grace (there is a VERY fun joke in there somewhere)
how much money does a prosecutor make (the answer to which is not much but more than a public defender).

2006-12-12T19:01:00.000-08:00

Truly We Must Be Desperate For News...

because today was quite the bumper crop of stories. First, "Mom Says Talking Doll Called Her Daughter a Slut."A California mother was shocked when her daughter's Little Mermaid Shimmering Lights Ariel Doll made by Mattel purportedly called her daughter a slut rather than saying things like "You're a Wonderful Friend!" First, as an attorney I have to wonder if truth would be an absolute defense. Not that I'm saying that it's true...I'm just saying. Second, I can already see the tag line on EBay: "Rare You're a Slut Shimmering Lights Ariel NIB." I'm happy to report that there is a video at that link!

Second, is this article about a pitbull puppy that allegedly chewed off a babies toes while her parents slept in the same room. Authorities are skeptical, as am I, but nevertheless, the story is horrific. The part I love, however, is the vet saying that maybe the dog was just trying to nurse. Thankfully, the child has been removed from the home pending investigation, hopefully not by the vet that said the puppy was just nursing.

2006-12-12T04:23:00.000-08:00

Only In New York....

and maybe in California, would you read a story like the one appearing in today's New York Daily News about a building at City College of New York named after a woman on the FBI's most wanted list for murdering a police officer.

The center is named the "Guillermo Morales/Assata Shakur Community and Student Center" after Chesimard, a member of the Black Liberation Army who, along with two accomplices, fired at troopers after being pulled over on the Jersey Turnpike in 1973. Trooper James Harper was wounded and Trooper Werner Foerester fatally shot at point-blank range with his own weapon. Chesimard was convicted and spent six years in jail but was freed by four armed men in a prison break. She is currently living in Cuba under Castro's protection.

Guillermo Morales was a member of the FALN, a violent group advocating independence for Puerto Rico. Morales was sentenced to 89 years after blowing off his own hands or fingers while making a bomb. He escaped from Bellevue Hospital and is also now a guest of Castro.

CCNY is part of the New York City school system. In other words, my hard earned tax dollars go toward funding the educational programs and infrastructure of that school. Aren't there limits on what we will do in New York just to prove we are liberal? Liberal, yes. Good. Naming buildings at public institutions after convicts on the lam--not okay. I think that Ivan Boesky had his name taken off a building that he paid to have built and all he did was some insider trading. Okay, it was significant and I'm not brushing it off, but is my point made? We took someone's name off a building that they paid for due to a white collar conviction - a money crime, yet we'll willingly name a building after terrorists who gave nothing...they only took and what they took were lives. I'm not saying that white collar crime is not serious. What I'm saying is that I think in anyone's book, murder should be worse. What is wrong with us???????

A Funny Thing Happened At Court TV...

2006-12-09T18:09:00.000-08:00

I appeared on Court TV's Bloom & Politan and Thursday and a strange thing happened...everyone was so prosecutorial that I found myself taking the defense side. Maybe that's why I'm a lawyer in the end - just like to argue.....
On a separate note, Underdog Blog discussed Police Misconduct in a post from this past Friday. He bring attention to several recent cases against police officers for abuse of power. As a prosecutor, I did see officers violate the law in all of the same ways that civilians do. But more than I saw abuse by police officers I saw abuse of police officers. Not in the literal sense of the word, but figuratively. This is especially prevalent in a place like the Bronx where people are so supicious of authority that sometimes all you need to do to thwart a perfectly genuine prosecution is claim police misconduct.

In police vernacular, we say it's easy to get a cop "jammed up." In other words, accusing a cop of something can get him in a lot of trouble with the job while the claims are investigated. The most common abusers of this fact seemed to be disgruntled wives, ex-wives, girlfriends and ex-girlfriends who knew that claiming that they were being abused could cause the accused huge problems at work resulting in desk assignments, held up promotions, etc. I have to admit that many of these women had good cause to feel aggrevied, but that does not make a false accusation right. I saw the same prevalance of false accusation against police officers from the population generally. My point is really that a police officer is entitled to the same presumption of innocence as anyone else. Just remember that just because someone says that it's so does not mean that it is.

2006-12-05T18:23:00.000-08:00

On TV Again..

Don't forget to watch me Thursday on Court TV's Bloom and Politan from 9 - 11 EST. I'm not sure what case we are discussing yet...hopefully a live one, literally and figuratively.

2006-12-05T18:00:00.000-08:00

Sometimes We All Suck

The very un-sucky author of Injustice Everywhere writes about the accomplishment of pursuading a prosecutor that the defendant in a case was, in fact, really the victim. This does happen--in fact, I have a whole chapter dedicated to it in my book and that very same case was the subject of a documentary called "Crime and Justice, The Bronx." I even just got a thank you note from the defense attorney that handled the case and who I mention in the book, Claudia Montoya.

The trick for a defense attorney is balancing wanting to keep some suprises for trial against wanted to share enough information with the prosecutor lest the defendant sit in jail for a year waiting for you to spring a trap. Prosecutors do not have this luxury. We are mandated to share our information. That said, what is the balance? First of all, know that most prosecutors do not want to keep innocent people in jail. So if you think that the balance of evidence is that pursuasive, share it with the prosecutor. 123TxPublicDefender and Claudia did this and it paid off...they never had to spring that trap at trial because there never was one.

I'm by no means saying that dropping charges against the defendant and bringing them against the alleged victim is common or that every time you suggest it to a prosecutor they will go for it. I am saying that it's possible and it does happen and here are two cases that prove it. I think too often, defense attorneys keep too much up their sleeves. If you don't share something exculpatory with the prosecutor early on, then they can't even investigate the matter and the only one that loses is the client.

2006-11-26T15:48:00.000-08:00

Tomorrow on Nancy Grace...

Don't forget to watch me tomorrow, November 27, 2006, on Court TV's "Nancy Grace: Closing Arguments." I will be commenting on the case of Florida v. Schulhoff; the prosecution of a teenage girl for killing her father. Since this is the discussion of a case were the verdict has already been rendered, I don't mind sounding like a type-cast prosecutor and saying that this fascinating case is a lock and load. Fascinating because it's not often that you hear about teenage girls on trial and, stay tuned, because the case ends with a VERY interesting twist that will affect the prosecution of the accused co-conspirator in the case. Don't peek and find out what happened, this one is really interesting. Also, just look at this girl?!? Could you imagine her plotting the murder of her own father? Well, those of us in the criminal world know that looks can be deceiving, so stay tuned.

Also, I just found this lovely review of my book that was written by a member of the Kane County "CASA". It's a wonderful thing to know that my book touches people, that they can relate to it, and most of all, that reading about my struggles in defending children makes people recognize and be proud of their own difficult work. In her review of my book, "Aimee B." suggests that maybe if a member of CASA had been assigned to my cases, I might have been able to continue my work. And perhaps she's right. I'm just thankful that people like her keep doing what they do....

2006-11-18T18:51:00.000-08:00

Rescheduled to Appear on Nancy Grace 11/27

Happy to report that after having to cancel my appearance on Nancy Grace due to a losing battle with some really really bad fish at a restaurant on the lower east side that I might name if you ask me, I have been rescheduled to hang out with Ms. Grace on Monday, November 27, 2006. Court TV. 3 - 5 pm.

Double Jeopardy and OJ Simpson

2006-11-18T18:37:00.000-08:00

Not to give OJ any more press than he's already not entitled to, but here is me on NPR explaining why he can get away with it courtesy of the US Constitution:

NPR : If He Did It, What Are Legal Ramifications for O.J.?http://www.npr.org/templates/story/story.php?storyId=6496943&sc=emaf

In pondering what I thought of double jeopardy, I found this article about the abolishion of double jeopardy in New South Whales, Australia: Danger in abolishing double jeopardy rule. The idea is that people can be re-tried when there is "new and compelling evidence".

For the US means of getting around double jeopardy see the prosecution of former Bronx Police Officer Francis Livoti under Federal Civil Rights laws after his acquittal under state law. If you want my real beef with this, it's that you seem to have to be a cop to be treated inequitably under the Constitution. Not that I'd be the one to defend Livoti...not a snowball's chance in Hell. And not that I agreed with his acquittal in the first place. And I do believe that cops should be held to a higher standard. But only when cops are acquitted do I see folks, at least in the Bronx, up in arms and crying for prosecution for the same crime twice, but this time under Federal law. The Constitution is supposed to protect everyone equally. Even bad cops. But maybe not OJ.

2006-11-13T05:06:00.001-08:00

CANCELLED APPEARANCE ON NANCY GRACE

Very sad to report that I have to cancel my appearance today on NG. I am horribly ill after some serious food poisoning Saturday night. I hope that they will invite me back soon. I still plan to appear on "Bloom & Politan" on Thursday, December 7 from 9 - 11 am.

Murder in Virgin Gorda

2006-11-10T18:45:00.000-08:00

In my post several weeks ago, A Sad Thing In Common... I wrote about domestic violence on the seemingly perfect island of Virgin Gorda.

A bookstore owner in Virgin Gorda writes, "The last murder in Virgin Gorda was 1999 until ten days ago.... I knew Lois Macmillan very well, and I knew Vinnie quite well too. Its very sad. There is too much crime in the BVI right now, too much of it unsolved (more or less deliberately).I have Serendipity Bookshop in Tortola and a not-very-stocked True Crime & Law section: it will be enriched by the addition of your book."

I am heartbroken to hear of another murder in Virgin Goda. This island could be the exception and I wonder what it is that could bring that kind of violence to such a serene place.

Link: British Businessman The Victim of Virgin Island's First Murder in Seven Years.

2006-11-06T13:20:00.000-08:00

Upcoming TV Appearances...

On Monday, November 13, 2006 I will be appearing on Court TV's "Nancy Grace: Closing Arguments." Say what you will, but I'm doing it and you should all watch me from 3 - 5 pm.

On Thursday, December 7, 2006 I will be appearing on Court TV's "Bloom & Politan: Open Court" from 9 - 11 am.

I highly recommend a grass roots call to Court TV to make me a permanent anchor and take all your fears of over-zealous prosecutors away...

2006-11-05T06:30:00.000-08:00

And I Thought Texas Was Bad....

Here is a link to an interesting article on the Death Penalty in China. "China passes a law allowing only its top court to approve death sentences, in a bid to improve the justice system." Lest I sound too much like a defense attorney, I won't say anything about my overall disagreements with the death penalty (and didn't I just say it), but even advocates of the death penalty ought to be terrified by some of these statistics. One can only hope that the Chinese top court has some more rationale judges...