New York Criminal Lawyer Blog
Even if I am always professional in my interactions with prosecutors and often more than cordial and friendly, I routinely disagree with prosecutors and regularly have an adversarial relationship with them as a criminal defense lawyer. Simply, that is the nature of the criminal justice system. We all have a job to do, and I recognize the central role prosecutors play in securing the overall good, safety and welfare of the people they are sworn to protect even if I disagree with a particular stance on a specific case. Unlike criminal defense attorneys who must advocate for their client regardless of what that person did or did not do, and what the evidence can or cannot prove, prosecutors must ensure the rule of law is upheld and, when necessary, use their discretion no matter their personal views. Having worn that proverbial hat myself and knowing the hard work that the men and women who serve as Assistant District Attorneys and Assistant United States Attorneys do every day, I appreciate the weighty burden they knowingly accepted upon their shoulders when they took to their oath.
I share this preamble because while I am ecstatic that this week marked the end of three cases for a client spanning three separate arrests involving a felony and numerous misdemeanors over the past five months, it was justice delayed, aka, an injustice for far too long. It gives me no pleasure saying so, but it must be said: the assigned prosecutor perpetrated an injustice against a woman victimized not only by her domestic abuser but the prosecutor himself/herself due to said prosecutor’s complicity, lack of diligence, and complete failure to do his/her job. Again, it brings me no pleasure to make such a statement, and it is not one against prosecutors in general. No, the prosecutor did not put his/her hands on my client or demonstrably lie as the “complainant” did time and time again, but the prosecutor was derelict in his/her duty despite my impassioned, fact-based efforts. I was not silent in court or in my words to the prosecutor, and I would remiss if I allowed this to simply be swept under the rug because there is a lesson to be learned for us all.
In lieu of going through the allegations, it is important to recognize that the “complainant” was first a defendant in a domestic violence case brought by my client in one District Attorney’s Office. The NYPD arrested this man before said prosecutor relentlessly pursued charges against her in another jurisdiction based on what was his retaliatory lie. Further, even before the “complainant” went to the police to pursue charges against my client, he was also a defendant in a case involving the mother of his children in the same jurisdiction where my client was a complainant. Prosecutors there charged him with crimes relating to Assault and Strangulation. Sure, it was fair to arrest my client based on New York’s domestic violence laws and the initial existence of probable cause, but once that arrest was made the prosecutor had to do his/her job and investigate. Sadly, he/she shamefully and woefully failed to do so.
As the case(s) unfolded, the complainant repeatedly contacted and called my client who admittedly replied to the “complainant”, as victims of domestic violence often do to their abusers. Disappointingly, to state it kindly, despite having call records corroborating the “complainant” had been calling my client and she had been responding, thereby violating the multiple Orders of Protection she had against him elsewhere when he initiated the calls, the prosecutor rationalized her arrest for her responses. To be clear, my client made no threats during these responsive calls and phone, WhatsApp and Instagram records would reflect that the “complainant” initiated communications and reached out dozens of times. Instead of doing his/her “homework”, like speaking to the other prosecutor, reviewing records, or crediting the evidence of abuse I provided, he/she somewhat indifferently “offered” a plea to a misdemeanor with a final Order of Protection in favor of the “complainant”, aka, the abuser who beat my client and demonstrably continued to contact her.
Time and time again I presented evidence to the prosecutor that the “victim” was misrepresenting, the “victim” was continuing to abuse and manipulate my client as he contacted her while also committing the crime of Contempt, photographs corroborated serious physical abuse, and that the prosecutor needed to both speak to the prosecutor in the other jurisdiction where my client was the complainant and subpoena certain records. Despite my pleas, he/she never subpoenaed the records and had no conversations with the other prosecutor other than when the respective cases began months earlier after I put them in touch and on emails together multiple times. Even worse, I reached out to a supervisor multiple times for a meeting to discuss the case to no avail.
It was as if nobody was home.
Despite the fact that the “complainant” was rearrested and charged with Criminal Contempt multiple times for violating my client’s Order of Protection, the “complainant” warranted from court in the other jurisdiction because he failed to adhere to his condition of his release requiring domestic violence counseling, and the NYPD issuing two separate I-Cards for his arrest (which would be three total arrests during the pendency of the case against my client in addition to the two cases already against him in the other jurisdiction involving my client and another against his wife), the prosecutor kept the company line: he/she could not and would not dismiss the case and any disposition required an Order of Protection in the “complainant’s” favor. Yes, an Order of Protection for the man who was charged with beating his wife, beating my client, and what was at least a dozen (if not dozens of) counts of Criminal Contempt.
After unanswered emails, robotic responses about how this particular office handles cases including the need for an Order of Protection for all complainants (without ascertaining the true need for one or the continued prosecution of the case itself), an unwillingness to speak to the prosecutor in the other jurisdiction, running afoul of the “complainant’s” indelible right to counsel by discussing the violations of the Order of Protection in the other jurisdiction (and potentially making himself/herself a witness), failing to issue subpoenas, ignoring direct evidence that the “complainant” was contacting my client, demonstrable evidence that the “complaint” had beat my client on multiple occasions, and an unwillingness to dismiss the case on the merits or interest of justice, we scheduled a felony hearing for the felony matter and trial for the misdemeanor offenses. I told the prosecutor that as much as I wanted to cross-examine the “victim” there is no way he would have the courage to show up just like he/she lacked that same courage to dismiss the case.
Ultimately, on the day of the felony hearing and trial, the “complainant” failed to appear. Shocked was no one, and only then did the prosecutor dismiss the cases against my client.
I share the above not because I want to stand on a soapbox and rail against prosecutors. In fact, those who know me know that is not who I am, and such an attack would be undeserving. Instead, we must all recognize that it is sometimes easy to forget that people caught up in the system are not nameless and faceless, but they are no different than anyone one of us. If you fail to do your job and allow injustice to occur as you cavalierly disregard the trauma you are causing them, then you are part of the problem and do not get a pass.
We can disagree on outcomes and decisions, but it is important that no matter your role in the criminal justice system – judge, prosecutor, defense attorney, and even juror – you do what is required of you and you do so with sincerity and urgency to ensure the rule of law is upheld and justice is served. While I could not be happier for this client and that I could provide her some closure, her battles are not over. It will take time for her to heal and move forward as she still contends with her victimization at the hands and actions of her abuser, manages her cases as a complainant, regains her trust in law enforcement, and can feel safe once again.
Founded by Jeremy Saland, a former Manhattan prosecutor, Saland Law is a New York criminal defense firm representing defendants and complainants in criminal cases throughout all stages of the criminal justice process.