Wednesday, December 10, 2008

From a Brooklyn Defense Lawyer

A press release of sorts from Five Borough Defense:

From an attorney in Brooklyn:
December 10th, 2008 · No Comments · Public Defender Work

I happened to be in the courtroom today when three Brooklyn officers were arraigned on an indictment for sodomizing an arrestee in a Brooklyn subway station in October.

The District Attorney’s theory of the case is that Kern sodomized after kern and Morales pursued Mineo for smoking a marijuana cigarette. Morales and Cruz, as far as I can tell, are being charged with falsifying records and official misconduct for writing an intentionally invalid summons and for failing to get medical assistance for Mineo who was allegedly clearly bleeding and asking for assistance. The District Attorney requested $50k bail for Kern, who is charged with first degree sexual abuse and assault 1 and faces 25 years in prison. The judge set $15k bail. The other two defendants were released on their own recognizance. The District Attorney’s office requested $10k bail on each, I think.

1. Marijuana is not decriminalized in New York. It’s just not, and it really should be legalized. A CHASE, a PURSUIT, and sexual abuse at the hands of the police for what? A joint?

2. An assault, if committed on an officer, goes from a misdemeanor to a felony. An assault BY an officer on a civilian? No bump up. No enhanced charge or sentence if it is an officer of the law committing the crime.

3. Kern was not handcuffed by the court officers when he was brought to the pens after bail was set for his Class B felonies. He got to stroll back there without being handcuffed - unlike Mineo, the alleged victim, who was handcuffed while he was being brutalized while awaiting his SUMMONS.

The PBA press quotes always enrage me. I often wish that defense attorneys or citizens who are victims of police misconduct could pack the courtroom as much as police officers do. Alas, often us defense attorneys are too busy scuttling about trying to actually cover our cases. I do wonder, though, whether criminal defense attorneys should be putting out press statements on this issue. Why aren’t defender agencies making any statements about this?

As indigent defense attorneys, our fight is generally against the abuse of power and resources of the government, and the socio-economic imbalance of the government versus the indigent. But what about when it’s the government punishing its own actors? Do we as indigent defense attorneys still care about due process and fairness so much in these particular cases, when these defendants are the ones abusing our clients? It’s hard to decide whether it’s appropriate for indigent defense attorneys to be making general public statements about a case when we fight every day for a case to get a fair trial in front of an impartial body - should we be trying to influence the public’s opinion of these defendants or police officers, when in fact we try to avoid the same ‘trial-by-public’ for our own defendants?

Secretly, I think public defenders probably feel on the inside that we hope the system is just as horrid and unfair to these three defendants as it is for our own. Publicly though, I do wish some defender agency would say something like:

We, agency of defense attorneys, are law enforcement as well. Our job every day is to make sure that everyone else is following the law; and when other parties are not following the law, it’s our job to make sure that the consequences are what the law demands for such breaches. As we like to remind all citizens, the Constitution is not a technicality, and neither are our jobs. In the matter of this alleged victim and these three accused officers, we hope that justice moves as it should - that it move carefully and in compliance with the laws of our State and Country, We fight so hard for these protections to be afforded to every criminal defendant, not just the ones who can pay for such legal protections with money or power.

However, as defense attorneys, we are in a unique position to observe police misconduct that is never charged, or brought to the press, or vindicated. Daily, we watch the police trample the rights of indigent clients without any deference to the laws that these police defendants will no doubt invoke now that they are the accused. But had they had their homes and pockets searched without warrants or cause, or had they had their cars or homes seized, or had they had to spend so much as ONE HOUR in jail, only then would they know what every other defendant knows about this system - that it’s broken.

As defense attorneys, we wish these three defendants a fair and impartial trial. We do not wish for anyone to be wrongfully charged or convicted. If in fact criminal liability is proven, if these allegations are found to be true beyond a reasonable doubt, we hope that the criminal system will take into consideration how egregious this breach is. We hope the court will take into consideration the horror of knowing that citizens are being subjected to institutionalized tyranny such as this, and that such police tyranny will not be tolerated by a civilized society. And if in fact these three defendants are exonerated, we hope it is because that is what the law requires, and not because of who these defendants are.

What do other defense attorneys think? Should we take a position on pending criminal cases such as this?

You can answer this defense lawyer by clicking here.

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