Don’t Let Prosecutors Or Law Enforcement Officers Cheat You: Fighting Their Bad Behavior (Part I)

Sometimes your best defense after being arrested and charged with a crime is the government’s own inappropriate actions – their illegal or dilatory behavior can trigger either a dismissal of the charges against you, the suppression of evidence seized which otherwise would be presented to a jury in your trial, or some other sanction.  When charged with a crime in New York or elsewhere, it is imperative that your lawyer focus not just on the evidence against you but also on the behavior of law enforcement in collecting that evidence.  Just because law enforcement or prosecutors have been getting away with illegal tactics for years does not mean they will forever.

Request for Dismissal of All Charges — When the Defendant’s Request for Counsel is Ignored or Interfered With

As any of the best criminal attorneys in New York will tell you, when fighting criminal charges no stone can be left unturned – and that includes challenging the behavior of the government in the case.  In one case I am presently handling, a police detective charged with receiving bribes (New York PL § 200.11) and official misconduct (New York PL §§ 200.25, 195.00(1)) was arrested and brought to a hotel room instead of a police precinct for processing – like every other defendant charged with a crime that day.  Instead of being arraigned on the charges “without unnecessary delay,” (CPL § 140.20), the detective was denied his repeated request for counsel and interrogated for four hours.  When the arresting officers finally acceded to his requests, they instead steered him away from his counsel of choice – his Union counsel – and instead handed him the Yellow Pages and advised him to find a lawyer in there, because they claimed the defendant’s chosen counsel would advise him to not cooperate in the case.  Worse, the arresting officers taped part of the interrogation and from that tape which survived it was revealed that the decision to steer the defendant away from his counsel of choice was made by the prosecutor himself who was handling the case.

First, the clear and unequivocal request for counsel should have preempted any questioning at the hotel.  People v. Skinner, 52 N.Y.2d 24, 29 (1980).  Next, as the right to counsel is paramount – including the interference with counsel of choice (People v. Gomberg, 38 N.Y.2d 307 (1975)) – any violation can be sanctioned all the way up to dismissal of the charges.  United States v. Amlani, 111 F.3d 705, 711-12 (9th Cir. 1997).  While this sort of sordid police work has been going on in Queens police precincts for decades, ignoring it will only allow it to continue to occur.  As such, we have moved to dismiss all charges in this case.

Sanctions Against Prosecutors’ Providing Late Discovery Can Include Suppression of Evidence 

Lesser sanctions than dismissal of charges are available to defense lawyers when prosecutors do what prosecutors usually do when defense lawyers request discovery materials in a case: they ignore them.  In one major federal narcotics conspiracy case I had in the Southern District of New York, the prosecutors did just that: they ignored my repeated requests for the materials pertaining to the 16,000 rounds of ammunition, drug paraphernalia, six firearms and other materials seized at the house where my client was found upon arrest.  On the eve of trial, however, the government finally turned over a report which noted that my client’s fingerprints were found on the ammunition boxes – devastating evidence for sure, as we did not have enough time to hire our own experts to combat this report. United States v. Patterson, 06 CR 80 (S.D.N.Y. 2008).  Despite the Court being permitted to simply adjourn the trial, to allow us the chance to fully investigate this lately-disclosed fingerprint report, the Court instead decided to suppress all of the evidence seized from the house, dealing a devastating blow to the government’s case.  Had we not held the prosecutors’ feet to the fire, we never would have received this fantastic – and deserved – result.

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Jeffrey Lichtman has received the highest rating (AV) from the Martindale-Hubbell Legal Directory, is recognized in the Bar Register of Preeminent Lawyers and has also been selected as a New York City Super Lawyer for being a leader in his field of criminal defense. Mr. Lichtman has received a rating of 10.0/10 Superb rating from Avvo Lawyer Directory and was profiled in the New York Daily News, The New York Times as part of the “Public Lives” series, New York Magazine and Ozy. He can be reached at (212) 581-1001.