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Excuse Me While I Produce More Convicts

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Headlined to H3 2/18/10

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There is nothing I fear more than the innocent client. There I said it. I hate admitting this, but it's true. People ask me constantly "what happens when your client is innocent?" *blink* I casually laugh in response" "95% of my clients are guilty of something, just not what they're actually charged with" My job is to convince the DA to agree with me" *smile" more blinking to convince myself* and then I pat myself on the back for my efficient use of semantics as I answered that question.

In my experience, 95% of MY clients who are charged with misdemeanor "Obstruction of Governmental Administration" as their top count, are usually completely innocent of all criminal charges. You might be reading this telling yourself "Police officers have way more important things to do than to be picking on people and slapping them with phony charges". Maybe. Or perhaps" while this police officer is exercising too much force in conducting an arrest, a law abiding citizen passes by (let's call him "Joe"), and witnesses that cop exercising brutality or unnecessary roughness on a young lady. Let's call this victim to police brutality "Sally". I've suggested before on my blog and on twitter that a law abiding citizen should call police officers out when they see unnecessary use of force. But the public defender in me sees that every time a poor Black or Latino good Samaritan DOES in fact step in, they get arrested for "Obstruction of Governmental Administration".

Misdemeanor Obstruction is committed whenever someone intentionally interferes with and prevents the lawful administration of a government official's function. So an ideal example for obstruction in my mind would play out like this"

I see my friend steal a carton of milk from the bodega. Police officers, who have also seen my client steal milk then start chasing my friend. I then hop into my car, cut the Cops off, tell my friend to jump in and I drive her to Mexico, tossing my hair in the wind"

Right there, I prevented the lawful administration of police work. My friend had no business stealing milk from the bodega, and I had no business driving her to Mexico. As you can imagine, the scenario I described is like nothing I have ever seen in a criminal complaint. What I usually DO see, is some fabricated boilerplate story about a person acting disorderly in public, flailing their arms, supposedly interfering with the NYPD's attempt to "lawfully arrest" them. But even that story as written up by the DA's office doesn't make any sense. Why WOULDN'T I protest being arrested? Every single police officer I have ever cross examined has admitted that an arrest in their opinion appears to be a stressful situation. Of course I want to avoid this stressful situation! Of course I want to avoid getting arrested! Of course I want this cop to leave me alone. Accepting an arrest to obstruction simply does not make sense. In my honest opinion, any resistance to being arrested for that charge in particular is logical. Being arrested is no fun. If the arrest is successful, then obviously I haven't interfered with your job since I'm the one bound and confined in the back of the cop car. Prosecutors need to stop writing up these victimless, pointless crimes. They don't make our communities safer. They demean and dehumanize law abiding citizens.

The prosecutors I work with often plea bargain these misdemeanor obstruction cases down to the infraction of disorderly conduct. I would imagine the attitude is that if my client got arrested for obstruction, s/he at the very least acted disorderly, and so therefore the plea would be appropriate. But there are a few other reasons why the DA's office and the NYPD "win" when my client pleads to a disorderly conduct"

1. NO WITNESSES! Remember "Sally" the lady that Officer Jackass was roughing up? Joe saw her falling prey to a police officer's excessive use of force. Joe could have minded his own business, but he interrupted the "lawful function" of the police officer by asking him what he was doing. Joe "obstructed" governmental administration by mouthing off the police officer, reminding him that he didn't read Sally (the victim) her rights, and that roughing her up like that was illegal. That's why Joe got arrested for pissing off a police officer. The police officer arrested Joe to prevent him from being a witness to his shoddy street character and lack of civility on duty. So if Joe tries to testify in Sally's case against the City, the lawyers representing the NYPD will emphasize the fact that Joe took a plea "This will make Sally's case appear weak." This will suggest that Joe is not a reliable witness because HE TOO had contact with the police. Joe got arrested, he copped out, he can't be trusted. "If Joe was so innocent of the charges, why didn't he go ALL THE WAY to trial?" the NYPD lawyer would likely ask the jury"

Well, quite frankly" His criminal defense attorney probably advised him to plead guilty to the infraction to avoid the risk of getting convicted of a misdemeanor at trial. Insert ME, public defender who is scared of a) people being sent to prison, and b) people getting criminal convictions.I can count on one hand the number of clients I've represented who ended up with their first criminal conviction. I know their names and their birthdays. I know some of their family members. It pains me to know that they will spend the rest of their lives with a criminal record - but I digress.

2. NO LAWSUIT AGAINST THE CITY OF NEW YORK!! Now that Joe has taken a disorderly conduct plea, any lawsuit he might seek against the NYPD or any other faction of the City of New York government shall not prevail. Why? Because Joe admitted to pleading guilty to something relating to his interaction with the police. The fact that he admits he was "acting disorderly" basically legitimizes whatever behavior the police used against Joe.

I am tired of this scenario. And so, I will stop being scared if my client isn't scared. If they are ready to swallow the risk of a conviction, I am ready to swallow the burden of avoiding that result. I am tired of seeing Cops abuse their power and lock innocent people up just for being good Samaritans.

 

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Aisha has dedicated her life to social equality, advocacy and promotion of the public voice. Born in New York City to immigrant parents and raised in Haiti and Morocco, Aisha now calls Harlem her home. Currently a trial attorney at the Legal Aid (more...)
 
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Excuse Me While I Produce More Convicts

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