Varghese & Accociates, P.C.

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When Cheating is Legal

New York State’s “Blindfold Law” is legalized cheating for the DA.  New York’s discovery rules allow prosecutors to withhold discovery and potentially exculpatory evidence for the defendant—evidence that could clear the defendant—until the eve of trial.  This means a defendant (and his attorney) can enter trial unaware of the evidence that may be used against him by the government and without evidence that may be integral to his defense, including the simple fact of his accuser’s identity. Simply put, the defense is blindfolded.  

How, you might ask, can someone defend themselves against supposed “evidence” if they don’t even know what that evidence is?

Well, for the most part, they don’t, because the prosecution uses this blindfold tactic to pressure defendants into taking guilty pleas. As reported by the New York Division of Criminal Justice Services, an astounding 98% of felony convictions are the result of plea deals. And that is not, I can assure you, because 98% of those defendants are guilty beyond a reasonable doubt (the standard of proof at trial), but instead because they feel the pressure of a system stacked against them and see no other way out than to accept a higher deal than they may deserve. Even if the government’s evidence is weak, the mere fact that they are not obligated to disclose it to the defendant means they can easily fool him into believing that what they have is stronger than it is. This “blindfold law” enables the government to intimidate vulnerable defendants into signing a plea, securing themselves a conviction that may not have resulted if the case had gone to trial.

Furthermore, when a case does go to trial, what often ensues is a trial-by-ambush. For perspective, let me tell you about a trial we had in 2015 in New York County. After months of litigation, the day before trial, the prosecutors sent over a stack of discovery documents that would rival the page count of Tolsoy’s War and Peace—not a quick one-night-ready-for-trial-read. We asked the Judge for time to review the documents—a reasonable request seeing that reviewing discovery is necessary to properly defend any client. Our request was denied, the trial proceeded, and the government presented evidence we hardly had time to review, let alone to counter. This was a trial that haunts me to this day because it is a trial we should have won. Had the government sent the discovery documents in the ample time they had to do so, we could have.

This ambush would never happen in civil court, where each side is required to comply with the standard of complete transparency. Before either side even steps foot in the civil courtroom for trial, they have each reviewed every document and piece of evidence gathered by the other side and have had the opportunity to depose every witness. A civil lawyer would never dream of settling a suit or taking it to trial without having done so. In fact, if an attorney tried to withhold discovery in civil court, both the receiving attorney and the Judge would be up in arms because it would be considered outrageous, yet this is the norm of criminal court, where the stakes—one’s fundamental rights—are incontrovertibly higher. In civil court, you may be forced to pay; in criminal court, you may go to jail and be forced to pay. My gut tells me that you would be hard pressed to find someone who wouldn’t prefer the former.

When you are forced to settle in civil court, it means you don’t think you can win at trial; when you are forced to take a plea in criminal court, you don’t have the chance to see whether you could win at trial. Even innocent people take guilty pleas when they believe the evidence is stacked against them, and it can look that way when the government is allowed to withhold evidence that might be key to a defendant’s defense. In New York and nine other states, the government can use this shady tactic to build their case and manipulate the narrative in their favor. It is abhorrent, and what’s worse is that this policy exists also at the federal level. For narrative’s sake, here’s another anecdote:

In 2014, while defending then New York City Councilman Dan Halloran who was charged as part of a conspiracy for political corruption along with New York State Senator Malcolm Smith and three others, we uncovered, through my cross-examination of FBI Special Agent William McGrogan, that the government had withheld over 9,000 wiretapped conversations between key witnesses. Their defense was that they had deemed these conversations “unimportant.” This determination, however, was not theirs to make. Judge Karas agreed and demanded that the government turn the tapes over to us immediately.

It turned out that twenty-eight hours of these conversations were in Yiddish, and since translating the Yiddish would have taken longer than the jury was available, Judge Karas was forced to order a mistrial. On one hand, a mistrial can be good for a defendant because it means the government has to start from scratch, but on the other, it means the government has to spend thousands and thousands of dollars of tax-payers’ dollars for a new trial that could have been saved had the government done what it was supposed to in the first place. Withholding evidence is neither just nor efficient, and the government should not have the power to do it.

Even without the “blindfold law,” our criminal justice system intrinsically disadvantages defendants. The government has an endless stream of resources to devote to their case. A defendant only has as much as his bank account allows. Even when someone innocent is charged, unless represented by Legal Aid, an organization whose employees are stretched very thin trying to cover an overwhelming number of cases at once, he or she will have to shell out thousands of dollars just to get their case dismissed or the charges reduced. If the case does go to trial, the cost can be crippling to the point that defendants may choose instead to take a plea—even if they are innocent.

This, paired with the fact that prosecutors can utilize the “blindfold law,” which is really just the tipping point of the rampant prosecutorial misconduct that takes place in criminal trials, makes it wholly unsurprising that conviction rates for felonies in New York are so high, around 66%, and that so many of those convictions are the result of guilty pleas. This is not what the Founders had in mind when they drafted neither the Fifth Amendment, ensuring a Constitutional right to due process, nor the Sixth Amendment right to a trial by jury.

Forty of our fifty states have reformed their laws to call for an open-discovery policy like that in civil court, having realized the antiquated restrictive discovery laws still implemented in states like New York—and at the federal level—are backwards and counter-intuitive to justice. Charles Hynes, former Brooklyn District Attorney, understood this and adopted the open-file policy years ago after a number of high profile convictions were overturned due to the suppression of evidence. Manhattan D.A. Cyrus Vance Jr. has yet to follow suit, despite New York organizational efforts to make this a state-wide policy.

In August, the New York Times published an article that highlighted efforts by organizations, including the New York State Bar Association, to raise awareness and reform this unfair, inefficient, and unethical policy, and the resistance they are facing in doing so. This month, Governor Cuomo acknowledged New York’s need for discovery reform and proposed doing away with the “blindfold law” as a provision of a larger package for criminal justice reform.

According to The Marshall Project, New York lawmakers have introduced bills for increased discovery transparency at least a dozen times in the past 25 years, yet due to powerful opposition, the bills have floundered. This opposition comes from state district attorneys who argue that a higher level of discovery transparency will endanger witnesses and lead to higher crime rates—in other words, bogus claims that are proven, by the forty states, and the Brooklyn D.A.’s office, who already have this transparency, not to be true. The assertion that implementation of this policy would increase crime is a fear mongering tactic to deny the bills public support in order to maintain the government’s unfair advantage over the defense and to preserve their high conviction rate through guilty pleas and ambushed trials.

Discovery reform in New York is imperative for a fairer criminal justice system. Our prisons are too full. Unnecessary convictions are too common. Innocent men and women are going to jail, and others are being punished longer and harsher than necessary. Leveling the playing field even slightly between the government and the defense through open-file discovery policies could lead to a significant reduction in accepted guilty pleas that should not be taken, and convictions that should not occur. Our criminal justice system is inherently supposed to be just. It isn’t even close. We must do better, and by finally following the example of the forty states with discovery transparency policies, we can take the first step.

The Most Dangerous Man In America

The most dangerous man in America doesn’t sit atop the FBI’s Most Wanted list, but instead runs arguably the most powerful institution of our federal government—the Department of Justice.  Jeff Sessions, as United States Attorney General, has virtually unchecked power to cater the policies of the DOJ to fit his own agenda, and these policies affect everyone. The Attorney General is answerable only to the laws passed by Congress and to the President, who has the sole authority to hire or fire him. While the President’s tweeting habits may indicate he is tightening Sessions’ leash, for all of Sessions’ activity that doesn’t pertain to Mueller’s Russia investigation, the President has largely turned a blind eye. This tacit disinterest leaves Sessions with free reign over the DOJ, able to interpret the law however he sees fit. This power, in the hands of Jeff Sessions, is lethal to the last century of our country’s progress.

Sessions wishes to reinstate antiquated policies mirroring those in place before the Civil Rights movement and in the heyday of the War on Drugs. History can tell us why this is a bad idea. To do so, despite his purported conservative “small government” policies, Sessions has been quietly, yet significantly, expanding the reach of the federal government, against the wishes of most American citizens. His dogged and irrational pursuit of marijuana-related crime disproportionately targets African-American neighborhoods for criminal activity and increases medical reliance across America on prescription opioids for those who would alternatively utilize the much safer and less addictive medical marijuana for pain management. His emphasis on “violent crime” diverts necessary attention from the prosecution of other prolific criminal arenas such as white-collar and cybercrimes that can and do have devastating consequences on American lives, as well as our democratic system. On top of all of this, his enthusiasm for debtor’s prisons and his call for reduced oversight of police departments, despite repeated documented police shootings and abuses of power by police officers, will lead to an assured curtailment of citizens’ civil rights.

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Because the American people overwhelmingly disapprove of harsher marijuana restrictions and expanding federal overreach, Sessions’ policies have received inevitable bipartisan condemnation, with criticism spouting from even the notoriously conservative Koch brothers. Recently, a bipartisan group of 54 lawmakers in Congress sent President Trump a letter urging him to direct Sessions to reinstate an Obama-era policy that gave states leeway in allowing marijuana for recreational purposes.  Despite Sessions’ claim that by pursuing strict enforcement of federal marijuana laws he aims to “enforce the laws that were enacted by Congress,” his policies are clearly not in line with the desires of Congress, who, short of changing the law, has little say in how the criminal statutes written by its predecessors are construed.

In his Department Charging and Sentencing Policy memo for all federal prosecutors released in May of 2017, Sessions called on prosecutors to “charge and pursue the most serious, readily provable offense.” His primary objective seemed to be that of reversing the directives of his predecessor, former AG Eric Holder, who urged prosecutors to apply discretion when considering what charges to bring against a defendant to avoid unnecessarily harsh sentences disproportionate to the crime committed. Holder recognized a disparity between those offenders who may have made a wrong decision, or were simply in the wrong place at the wrong time, as opposed to those who truly pose a danger to society. Holder believed the punishment for the former should not match that of the latter. Sessions has discarded this distinction, and in doing so, will wreak havoc on society and fly in the face of the principles our criminal justice system is supposed to uphold. As Holder stated in his criticism of Sessions’ new orders, these policies are not “tough on crime, they are dumb on crime.”

As a former prosecutor and criminal defense attorney, I have seen firsthand the criminal justice system work for both good and ill. When the system works as it is supposed to, lives can be changed and justice can be achieved. When the system is abused by those in power, as it is all too often, chaos erupts, and lives are unnecessarily destroyed. Due directly from the policies outlined in the Holder memo which called for discretion on the part of the prosecutor, one of my clients, “Jim,” who would have otherwise gone to jail, his life effectively ruined, instead was given a second chance by federal prosecutors and an understanding judge. Jim was able to keep his job and remain a productive member of society. He was able to work on himself, to reform his bad behavior and focus on being a better person, all the while with a future to look forward to.  While Jim has at times faltered, he moves forward, and couldn’t have done so without the Holder memorandum principles in place and understanding prosecutors who weren’t looking to condemn him to a life in prison.  If Jim had been prosecuted under the Sessions’ DOJ, he would still be in jail right now with no chance to better himself or society.

The criminal justice system needs more success stories like Jim. Our criminal justice system is meant to not only punish, but also to rehabilitate. Prison, or any punishment that is not life or the death penalty, is supposed to be a time-out, a time for self-betterment and reflection. In theory, one is supposed to emerge from prison changed and ready to reclaim her life. Unfortunately, a criminal record marks you for life. If you’re lucky, you can return to life as you knew it, but for most, life will never be the same. Job opportunities dwindle. Those who did not have much to begin with are left with virtually nothing. In these cases, prison does not rehabilitate, it cripples.

We must enact policies that shift our criminal justice system forward—towards real justice. Justice does not come from prosecutors blindly pursuing the harshest penalties for minor offenses or from locking people in jail who can’t afford to pay traffic tickets. Justice does not come from diverting federal funds from the prosecution of white-collar crime to focus on street crime. Justice does not come from sending anyone who has made a mistake in his life to prison and reducing the oversight that holds those in power accountable. Justice comes from the presumption of innocence, from checks on those in power, from research, reason, and compassion when deciding punishment, and integrity on behalf of those who pursue that punishment.

Moving away from unnecessarily harsh punishments—including mandatory minimums and sentencing enhancements—particularly for nonviolent crimes, which include most drug crimes, benefits all of us. With less money spent on prosecuting these nonviolent offenders and keeping them in prison, there is more money available for more serious crimes and more room in prison for the violent offenders who need to be there. Resources are not unlimited. We need to use them efficiently and effectively. Jeff Sessions, in his outspoken attempts to re-instate the disastrous War on Drugs and erase a multitude of Civil Rights era victories, is carelessly and recklessly spending our tax dollars to pursue a backwards agenda out of line with the will of the American people he is in place to serve. The worst part is that he has the power to do so.