The Book of Ben - April 9th, 2005

Me, I'm just a lawnmower. You can tell me by the way I walk.

What has happened:

I learned how to be a criminal defense lawyer in New York.

I learned how to be a better lawyer in general.

Other than that (not that lawyering isn't significant), I don't think I have grown much. Hence, back to writing.

A story from the law clinic. You may find it dull. But I need to start writing regularly and this is all I can think to write about.

I represented a woman accused of making harassing phone calls to her ex-best friend.

The calls were in Haitian-Creole, as both women are from Haiti. My client said it was her sister-in-law who made the calls. She was staying with her while visiting her brother in Florida, and she was letting them use her cell-phone because the local line had been cut-off by a hurricane.

Our client was arrested in the airport, when getting off of her return flight from Florida.

The Manhattan DA's office has a policy of withholding discovery (evidence) until the very last moment possible. The criminal court judges in Manhattan play along with this policy, and perhaps it can be said that the public defenders do as well, since the policy is a part of a process with which everyone is familiar. They all know what to expect, and can organize their lives and cases around such standards. And this policy/practice is accepted, despite the fact that it goes against the language of the criminal procedure law. The excuse? Court congestion, heavy dockets, over-worked ADAs, etc.

It took seven months before the ADA (assistant district attorney) on the case called in the complaining witness to bring in the answering machine tapes of the calls. It would have taken longer if it weren't for me calling him over and over again.

The same day he got the tapes, I went to his office. He played me a portion of the tape. It was clearly my client's voice, though I couldn't understand her words as they were in another language. He also provided a transcript of the calls made by the complaining witness herself, most of which we had not seen up to this point. We had seen some of this transcription in the accusatory document, and assumed that they had included the worst and most threatening calls. We were wrong, the other calls were much worse. This transcript also corroborated the sister-in-law's contention that she made some of the calls, but that our client made the rest. The ADA offered a good plea: a "disorderly conduct" violation with no jail time and no community service, just an order of protection preventing my client from bothering the complaining witness again. This was good because a violation isn't considered a crime, like the misdemeanor she was charged with, and the record of the violation would be sealed. The ADA said it would take a good deal of money and several authorizations from his superiors before he could get the tape translated. He seemed to insinuate the the offer may be off the table if we didn't take it before he started the process of getting the translation approved. So I asked him directly if this was the case. He wouldn't give me a direct answer. I offered to translate the tapes myself, with the resources of my law clinic. He was open to the idea, but wanted me to go to my client first with the offer before he would give me anything.

My client maintained her innocence from day one and would not admit guilt. Thus, she said throughout that she would not take any pleas, unless it was a dismissal. She was mad about getting arrested and felt her rights had been violated, all because her former friend had a vendetta. She had told me that she made at least one call, but only a normal call asking the complaining witness to call her back. That meant when I heard her voice on the tape, it could have been this one call. But I did not believe this. Now that I knew she was on the tape, I found a way to put the decision in her hands. In a nutshell, I said we could translate the tape and keep fighting, as she had always wanted, or we could take the plea and get this over with. This would allow her to save face. She could use the excuse that she did not want to come to court anymore. She mentioned in the past that the case had been getting in the way of her new job and school. She took the plea.

Inefficiency. If the ADA had shown us the transcript on day 1, it would have greatly informed the way we approached the case. I wouldn't have had to chase down the sister-in-law over the phone with a Haitian-Creole translator and get her to admit that she was involved. We were hoping she would be our ace-in-the-hole: the sister-in-law did it, not our client. But it turned out the ADA knew they were both involved the whole time. If the ADA had gotten the tapes right away and let us hear them, all of this would have been over with ages ago. If I had never gone to his office, despite his indications that it wouldn't get me anywhere, I would probably still be working on this case. Not only were we being played by the system, we were being played by our client. If she told us the truth from day one, it would have saved us from tons of investigation and research into trial strategies. We knew that the sister-in-law was still making the calls alone while our client took a side trip from Florida to Haiti. We had our client produce evidence that she was in Haiti when some of these calls were made. Why would she bother if she knew in the end it wouldn't prove her innocence? Some likely explanations for my clients behavior: she did not want to admit her guilt to anybody, perhaps because she was embarrased, perhaps because she felt the complaining witness deserved to be harassed, perhaps because she thought we would not work on her case as diligently if we knew she did it, perhaps she did not want to admit she lied to us when she originally professed her innocence.

The lesson: more information, more efficiency. Dull conclusion.

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