Criminally Yours: Indicting A Ham Sandwich

Over-indicting is not just a waste of time and money -- it's just not fair.

justice-handcuffs-e1372182679824-300x286In 22 states, the prosecutor must obtain an indictment before he can proceed with a felony prosecution, and while it sounds like a fancy legal term, don’t be fooled — indictments are easy to obtain.

They can come pre- or post-arrest. Pre-arrest indictments (rare in New York) are generally based on weeks or even months of investigation, material discovered through search warrants, phone taps, and snitch information — more akin to what’s traditionally done in a federal, rather than a state, case. (Reminder: If you or a loved one ever is the subject of such an investigation, do not cooperate without an attorney present. Even as a witness subpoened to a grand jury, you have the right to an attorney.)

In New York, post-arrest indictments are generally slapped-together, reflex presentations following an unexpected criminal event like a robbery or assault. Prosecutors scramble to get their witnesses to court within six days following the arrest if the accused is being held on bail. If the case isn’t presented (put before the grand jury) and voted out (indicted or no-true billed) in that time, the defendant gets out of jail. He still has to fight the charges but at least he gets to do so from the outside. His bail is reduced to zero. He is released on his own recognizance (ROR’d.)

Why is this fair? Because it gives prosecutors a hard deadline to decide what to do with a case. Otherwise, defendants, most of whom have no money to make bail, would languish in jail awaiting a prosecutor’s decision on whether a case is indictment-worthy.

The downside of speedy indictments for defendants is that the six-day rule pushes prosecutors to rush to indict their case. It’s a knee-jerk reaction — keep the guy in jail, while you got him in jail. Thus, garbage gets indicted; defendants stay in jail awaiting trial, sometimes more than 12 months, and it’s only when the case gets before a petit jury that its merits are finally judged.

As New York Judge Sol Wachtler said in 1985, “If a district attorney wanted, a grand jury would indict a ham sandwich.”

Grand juries are the prosecutor’s babies. They decide who gets picked, what evidence gets presented, and what gets left out. There’s no judge, no defense attorney, and generally a defendant only testifies in rare circumstances — his story is so air tight that there’s no down side in putting him in. There’s no necessity for unanimity among the 23 or so jurors, and the standard of proof is so low — that probable cause exists to believe a crime has been committed — anyone, for the merest hint of an offense, can get indicted.

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A friend of mine sat on a grand jury for three weeks and reported that it was so rote that many people played on their phones or even slept as the evidence was being presented. Every presentation ended in an indictment.

Adding insult to injury, although defense attorneys routinely make motions for judges to dismiss charges due to the insufficiency of the evidence presented to the grand jury, few judges have the cajones to do it. They believe a petit jury should bear that weight. Passing the buck to them saves their jobs should they dismiss a case against a guy who then gets out of jail and then does something worse.

I had a case recently where my client never should have been indicted for Robbery 2, but he was. My client snatched a cell phone from a guy on a subway platform. In the ensuing chase, my client was caught and the complainant suffered a bump on his lip in wrestling him down. This got indicted as a Rob 2 under the theory that the defendant caused the victim to suffer impairment or substantial pain in his attempt to retain the property.

The prosecutors knew it was just a small bump on the lip, akin to a cold sore. The guy missed no work, took one Advil, and went about his life. Even the police officer who took the complaint described the injury as a very small laceration, “like a scratch.”

The case should have been indicted as Rob 3 (that’s robbery with force but no injury) or simple Grand Larceny (neither force, nor injury, just an unlawful taking), but prosecutors went for the gusto and indicted for Rob 2, recommending nothing less than seven years on a plea to the charge. (My client had a prior conviction.)

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At trial, the complainant — a dude kind of guy who’d worked as an entertainment host on a cruise ship and never chased down a crook in his life — was honest and direct. The injury was trivial, more like an irritation. The jury found my client guilty only of the Grand Larceny.

Had the prosecutors not over-indicted in the first place, my client would have pleaded guilty and saved the State a lot of money and effort in bringing the case to trial. He would have even pleaded guilty to robbery in the third degree for a bigger sentence than what he’ll now get after trial, having only been found guilty of the grand larceny.

What’s the lesson to be learned in all this? Prosecutors are the gatekeepers, the power brokers, and the people supposedly seeking justice, not just convictions. Deciding what to indict ups the ante for the defendant, controls what a judge can offer on a plea (he can’t offer less than what’s in the indictment), and thus concentrates all the power in the prosecution’s hands.

So prosecutors: Please don’t let common sense go out the window. Look at a case like a defense attorney might. Don’t use your power just because you’ve got it. In many instances, over-indicting is not just a waste of time and money — it’s just not fair.


Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.