Crime

The Insidiousness Of Overindicting

Mitigating factors are often ignored by prosecutor offices and the highest crime possible is unjustly charged.

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Prosecutors have more power than most people realize in determining how to charge a defendant.

For example, getting involved in a bar fight could be charged as simple assault, a misdemeanor, or if the prosecutor so chooses, as “gang assault,” a serious felony, just because a friend threw an additional punch.  A shoplift could be charged as a misdemeanor (petit larceny) or as a “violent” felony if the shoplifter knocked someone over running out of the store.

What a defendant is charged with determines what happens for the life of the case.  If charged with a felony instead of a misdemeanor, the bail will be higher.  If the accused cannot make bail, there’s a greater likelihood he’ll plead guilty because his sentence might be shorter than waiting for a trial.

By charging the greatest crime rather than the one that fits better with the facts, the prosecutor wrests control of the case from the judge.  Because of minimum-mandatory sentences pegged on the level of the crime, only the prosecutor can then determine if the defendant gets a plea bargain (a plea to a lesser crime) or not.  All bargaining power remains in his hands.  A judge can do nothing.

Many prosecutor offices, like that of Cyrus Vance in New York City, push their prosecutors to charge the highest crime possible in order to maintain this control.  It’s a strategic decision that leaves them in charge.  Often mitigating factors like the drunkenness of the complainant or that the defendant suffered a mental illness don’t matter.  When prosecutors indict for the highest crime possible, they’ve got a powerful bludgeon to discourage the defendant from going to trial, or, if he does, by setting him up for far worse punishment.

The problems with this approach are many.  First, many prosecutors are recent law school grads with little in common with (and therefore little understanding or compassion for) the people they indict.  Mitigating factors like drug abuse, poverty, cognitive deficits, or poor education are ignored.  Prosecutors often adopt the thinking, “Well, he had a choice, and he made the wrong one.”

I often wonder how different their attitude would be had they grown up with the challenges that most of the people they prosecute face.

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I recently tried an attempted murder case in Manhattan that should never have been indicted as attempted murder.  The evidence was thin and the argument the prosecutor made at summation so contrived, that I wondered if even he believed it.

The facts involved my client “beefing” with the complainant on What’s App then arranging to meet him to duke it out in NYC.   He brought along two 17-year-olds.  One was there to film the encounter and post it to the chat group; the other was there as back-up in case they were jumped.

What my client didn’t know was that both teens carried guns.

When they approached the rendezvous point, a public street in New York, the complainant rushed the teens with a bat.  My client was 60 feet behind them, looking at his cell phone.  The kids immediately drew their guns and fired, hitting the complainant in the ankle.  When my client became aware of the commotion, he hightailed it in the other direction.

He (and the kids) were charged with attempted murder.  The prosecution’s theory was that he acted in concert with the two teens who fired.  The charge itself presumed the kids intended to murder the complainant, already a sketchy assumption since video showed their shooting was reactive and poorly aimed.  By charging my client, the prosecutor assumed he shared that same intent.  My client was also indicted for the “constructive possession” of the weapons the teens carried.  That means he had control over either the weapons or the kids who fired them.  No weapons were ever recovered.

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It’s true that the trial judge tells jurors that a grand-jury indictment means nothing and that they should not consider it in any way in proving guilt.   However, most jurors assume that a prosecutor wouldn’t charge a serious crime unless it was substantiated.  They, thus, read into charges more than what the prosecutor’s got to prove them.

By overcharging, the prosecution also wins the advantage of a “compromise verdict.”  That’s when although the jury doesn’t think the prosecutor proved the top count, they want to find the defendant guilty of something, so they’ll go for the next count down.

In this case, even though the jury did not believe my client shared the teens’ possible intent to murder the complainant, they believed it was his fault that the teens showed up in New York for the fight and wanted to find him guilty of something.

They acquitted him of the attempted murder and assault charges, but found he had constructive possession of the weapons.  They compromised on the proof to do what they thought was fair. As one juror told me later, they weren’t going to let him out of that room with an across-the-board acquittal.  He now faces 3 ½ to 15 years in jail.

I’d like to believe that most good prosecutor offices don’t automatically charge the worst crime they can contort the facts to fit.  But I’ve seen too many examples of the contrary.

It would be great if prosecutors were more exposed in a non-adversarial way to the people they prosecute.  For example, there could be an exchange program where prosecutors are compelled to practice public defense work for a spell and see what the view from the other side is like.

Maybe then they’d see the people they put in jail more as human beings and less as mere defendants.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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