City Journal

James B. Jacobs
Get Out of Jail Free
New York's procedural protections for criminal defendants far exceed those of other states or the federal government--without protecting real civil liberties. Here's a guide to the laws that keep police from getting tough on crime
Summer 1991

James B. Jacobs is professor of law and director of the Center for Research on Crime and Justice at New York University School of Law. The author wishes to gratefully acknowledge the assistance of his colleagues Larry Crocker, Steve Zeidman, and especially Chet Mirsky, and to express special appreciation for Boaz Morag’s research assistance. The research for this article was made possible by the Brunie Fund for New York Journalism.

In 1981, Delissa Carter, a Queens resident, murdered her foster mother and framed her ex-husband for the crime. Several years later, she admitted that she had lied to the grand jury and that she herself was the murderer. But because of a unique New York State law that automatically grants immunity from criminal prosecution to grand jury witnesses for any crime related to their testimony, she can never be tried for the murder.

New York State’s rules of criminal procedure pose a major barrier to prosecuting criminals, especially organized crime figures. Though police and prosecutors, in New York as elsewhere, like to complain that the federal courts stymie their efforts to put bad guys in jail, the truth is that New York State imposes far more severe restrictions on law enforcement officials than those found in federal law. Criminal prosecutions here are encumbered by dozens of exotic procedural restrictions unknown not only at the federal level but also in most other states. Many of these roadblocks were erected by New York’s highest court, the New York Court of Appeals, but many others are the work, in whole or in part, of the New York State Legislature.

Delissa Carter, for instance, escaped justice under what is called “transactional immunity.” Together, the New York State Legislature and Court of Appeals have produced the most lopsided version of this rule in the country.

Grand juries have the right to require witnesses to testify about their knowledge of any matter under investigation: Witnesses who refuse can be charged with contempt of court, or if they lie, with perjury. Under the Fifth Amendment to the Constitution, however, no person can be compelled to be a witness against himself in any criminal proceeding.

To reconcile the conflicting Fifth Amendment rights of witnesses with the grand jury’s right to investigate, the U.S Supreme Court has sensibly held that a witness can be compelled to provide even self-incriminating evidence as long as it will not be used against him in a future prosecution. This is what is known as “use immunity.” Under use immunity, neither the witness’s testimony, nor any evidence derived from that testimony, can be used against him in a future criminal trial. (Kastigar v. United States, 1972). However, the witness can still be prosecuted in a future trial for a crime about which he has testified, if the prosecution can prove that it has not used his testimony to prepare the case.

New York, however, provides grand jury witnesses with automatic transactional immunity, which is much broader than use immunity, far more generous to criminal defendants, and far more frustrating to law enforcement officials. Under transactional immunity a witness can never be tried for any crime related to any “transaction, matter, or thing” about which he has testified, even if his guilt can be established without using his testimony, or even if his testimony was completely false, as in the Delissa Carter case.

New York’s grand jury immunity also applies to true but unexpected testimony. For example, if a witness before a grand jury investigating gambling were asked, “When was the last time you saw John Doe?” and he answered, “When I killed him,” he would receive immunity for the homicide. And though a witness for a federal grand jury is not entitled to any immunity for the compelled production of physical evidence, like blood, semen, or hair, in New York witnesses get full transactional immunity for compelled production of such evidence.

The term “transactional immunity” does not do justice to the breadth of New York’s grand jury immunity rule. Arguably, a grand jury witness who is questioned about his position, responsibilities, and activities in a labor union obtains immunity for all offenses he has ever committed in his role as a labor official.

Thus, in one recent case, People v. Fazzini and Pezza (1985), organized crime figures allegedly associated with the Luchese crime family were indicted in Suffolk County for price-fixing and coercion in the carting industry during the mid-1980s. The prosecutors had to dismiss the charges because the defendants had been questioned about corruption in the carting industry by a Nassau County grand jury several years earlier. It did not matter that their earlier testimony had been about different, earlier crimes and was of no use to the prosecutors in preparing the later case. The prosecutors, unable to say for sure that the New York Courts would not find the defendants to have been immunized by their earlier testimony, could not risk months of work and millions of tax dollars on the case, and so dropped it. In effect, the defendants’ earlier grand jury testimony had provided them with immunity for future crimes.

To make matters even more difficult, a New York grand jury witness confronted with a subpoena does not have to plead the Fifth Amendment in order to obtain transactional immunity—he automatically receives it. Thus, unlike his federal counterpart, the state prosecutor is not alerted to the possibility that someone he thinks is an innocent witness might actually have been an accomplice or perpetrator of the crime. No other state confers both transactional and automatic immunity on grand jury witnesses.

It is not easy to exaggerate the consequences of the immunity law, especially in complex organized crime cases where many of the witnesses are criminals themselves. Indeed, as in the case of Fazzini and Pezza’s activities in the carting industry, they may be criminally active in many different counties around the state. Because the state has no effective mechanism for communication and cooperation among its 62 county prosecutors and several state prosecutors’ offices, investigations in one jurisdiction are frequently blown when a suspect is called to testify before a grand jury in another part of the state.

The transactional immunity rule becomes even more devastating in combination with other New York criminal procedures. The New York State constitution, for instance, provides that all felony charges be brought by a grand jury indictment unless that privilege is waived by the defendant. Furthermore, New York law is exceptionally strict in prohibiting hearsay and requiring trial quality testimony before the grand jury. In a federal grand jury hearing, a law enforcement official can summarize the testimony that the government’s witnesses will offer at trial, but in New York the grand jury must hear firsthand from victims and other witnesses. Inevitably, some of the people initially assumed to be victims and witnesses later turn out to be perpetrators or accomplices, but by then they have earned automatic immunity by their grand jury testimony.

One notorious example arose out of the 1982 murder of three CBS employees, who stumbled onto the contract killing of a diamond company employee on a Manhattan pier. In the course of investigating a suspect named Donald Nash, more than fifty witnesses were called before the grand jury. One witness, a building superintendent named Alberto Torres, was called upon to establish that Nash had access to a telephone in his building from which a call had been placed a few minutes after the multiple killings. More than a year later, a key witness revealed that Torres had helped to obtain Nash’s services as the contract killer. In federal court, Torres could have been prosecuted for murder. But in New York State, Torres’s grand jury testimony automatically provided him with an immunity bath which forever prevents prosecution for that crime.

New York prosecutors can request grand jury witnesses to waive their immunity, though usually the only people who will do so are those with nothing to hide. Nonetheless, the New York courts have been known to overturn even such voluntary waivers of immunity. In People v. Higley (1984), a county legislator charged with criminal conflict of interest (for doing business with the county as a meat vendor through a dummy corporation run by his sister), signed a waiver of immunity on advice of counsel and then testified before the grand jury. He was subsequently indicted and convicted. However, the Court of Appeals reversed his conviction, ruling that the waiver was invalid because the prosecutor had neglected to ask Higley to swear to the truth of the waiver in front of the grand jury. Consider how anomalous this result is. If the police were shown to have beaten a confession out of a defendant, the confession would be suppressed, but the defendant could still be prosecuted for the crime. In Higley, however, a defendant who waived immunity in the presence of an attorney, but not in the presence of the grand jury, is forever immune from prosecution.

Virtually every major newspaper in the state has endorsed amending the immunity rule. So have Governor Cuomo and Attorney General Robert Abrams. In 1982, the New York State District Attorneys Association made an all-out effort, led by Manhattan District Attorney Robert Morgenthau, to persuade the legislature to replace transactional with use immunity. The bill was passed by the Senate in 1983, but it was defeated in the Assembly Codes Committee under Chairman (now Speaker) Melvin Miller’s strong opposition.

The Accomplice Corroboration Rule

It is almost impossible to bring professional criminals to justice without getting their accomplices to testify against them. In many cases accomplice testimony is all the prosecution has to go on. In New York State, however, accomplice testimony has been made much less useful by a rule forbidding a defendant to be convicted solely upon such testimony. In New York, even if ten accomplices were to give mutually corroborating testimony against a major crime figure, leaving judge and jury no reasonable doubt about the defendant’s guilt, a conviction could not stand unless the prosecution could provide independent evidence corroborating the accomplices’ testimony. As a result, criminals can protect themselves from apprehension by dealing only with co-conspirators.

In Brooklyn recently a man who had hired two young men to commit a murder for him escaped from justice via this rule. Both the young assassins were willing to testify against the man who hired them, but without independent corroboration the case had to be dropped. Similarly, arson-for-profit cases often go unprosecuted, even though the prosecutor has made a deal with the “torch” to testify against the owner who hired him. The same problem occurs in automobile insurance fraud cases in which an owner hires someone to “steal” and destroy his vehicle.

As with the transactional immunity rule, the accomplice corroboration rule is most significant in organized crime cases, especially racketeering cases. Dozens of contractors may be prepared to testify that they paid off a labor racketeer, but for want of independent corroboration many such cases are dropped, thrown out at trial, or reversed on appeal.

There is no justification for such an inflexible rule. Skepticism about accomplice testimony is understandable, since accomplices are often tempted to lie out of spite for the defendant, or to shift responsibility from themselves. The entire criminal justice process, however, has been designed to enable juries to weigh the impartiality, veracity, and reliability of such witnesses. That is why the adversary system places so much emphasis on the presumption of innocence, cross-examination, and the standard of proof beyond a reasonable doubt. When cross-examination is not sufficient to expose a witness’s bias and inadequacies, the judge is allowed, and sometimes required, to warn the jury that certain kinds of evidence and testimony should be closely scrutinized. But a hard and fast rule of corroboration applies only to witnesses who are accomplices.

Moreover, New York’s accomplice corroboration rule applies even when the accomplice has no fear of future prosecution because he already has immunity. Yet previously immunized accomplices may be far more reliable witnesses than nonaccomplices without immunity who may have motives for currying favor with the prosecution. For example, a defendant can be convicted on the testimony of a jailhouse stoolie who is promised a reduction in sentence in exchange for his testimony. No independent corroboration is required. Indeed, no corroboration is necessary where a witness stands to make millions of dollars in a civil suit which would follow the defendant’s conviction in a criminal case.

Together, the accomplice corroboration rule and the transactional immunity rule explain why state and county prosecutors in New York so often turn their organized crime cases over to federal prosecutors. Neither the federal government nor 31 states require corroboration of accomplice testimony. Among the 19 states that do, the definition of who is an accomplice varies considerably. New York uses a broad definition. In 1937 the New York Commission on the Administration of Justice recommended abolishing the accomplice corroboration rule for reasons that are just as applicable today: “The Committee was strongly of the opinion that this section in the present code is a refuge of organized crime and racketeering. . . . The Committee carefully considered the possibility that the deletion of this provision might encourage frameups and related abuses, but was strongly of the opinion that this would not be the case. The deletion of this provision merely restores the common law ... “

More recently, Governor Cuomo’s 1986 Program Bill called for elimination of the accomplice corroboration rule, but the legislative leadership has shown no inclination to endorse this much-needed reform.

The Right to Counsel

Over the past thirty years, federal courts have greatly expanded the right of criminal defendants to legal counsel, making it more difficult for police to railroad the innocent. But in New York the right to counsel has been pushed far beyond the federal constitutional requirements and has become a major impediment to legitimate prosecutions.

For example, under federal law, the right to counsel begins with the commencement of formal criminal proceedings. Only New York, however, requires that formal proceedings begin (with the issuance of a complaint) before an arrest warrant is issued. Thus in cases for which an arrest warrant is needed, including many organized crime cases, New York effectively grants a right to counsel at an earlier stage than other jurisdictions.

Under New York law, unlike federal law, the right to counsel is not waivable outside the presence of counsel. In other words, the defendant cannot say, “OK, let’s talk without the lawyer,” unless the lawyer is sitting there. Since no lawyer representing guilty defendants ever agrees to such a thing, and since interrogations with counsel present are usually worthless, many criminal defendants who could be interrogated by the police in other jurisdictions cannot be interrogated in New York. And since, in cases requiring arrest warrants, the right to counsel obtains even before the defendant is arrested, in effect a defendant arrested under a warrant can never be interrogated.

New York’s right-to-counsel rules also prevent the police from interrogating suspects who have hired a lawyer to represent them in the matter under investigation, even if proceedings have not begun and no formal action has been taken against them. Under federal law, the FBI or U.S. Attorney can send an agent or an informer (with or without a recording or listening device) to engage an (as yet unofficial) suspect in conversation with the hope of eliciting incriminating statements. In New York, if the suspect has already retained a lawyer in the case under investigation, he cannot be surreptitiously drawn into conversation: All interrogation must take place through his attorney—in other words, not at all. This rule is a boon to Cosa Nostra bosses who retain house counsels and to white collar defendants who have ongoing relationships with their attorneys.

Recently, for example, the Manhattan D.A.’s office was investigating the scheme of Cosmos Forms Ltd. to defraud the Guardian Life Insurance Company by inflating invoices for goods sold. A Guardian employee allegedly involved in the conspiracy agreed to wear a microphone and engaged the primary suspect in an incriminating conversation. The suspect, a woman named Judith Goldfinger, moved to suppress the evidence on the grounds that she had previously retained counsel in a federal civil case relating to these same matters and therefore could not be interrogated without her lawyer present. The lower court agreed, using doctrine set forth by the New York Court of Appeals, and suppressed the statements.

Even more incredibly, in 1981 the New York Court of Appeals in People v. Bartolomeo held that if a suspect had an attorney in an unrelated pending criminal case, any statements he made voluntarily to the police when arrested for the new crime had to be suppressed if counsel were not present. This case shaped a rule that for a decade benefited organized and career criminals with outstanding cases against them. Just recently, in People v. Bing (1990) the Court of Appeals reversed Bartolomeo, noting the anomaly of a rule that gave preferential treatment to repeat offenders over defendants with no pending prosecution.

Notwithstanding the Court’s about-face in Bing, New York is left with a right to counsel rule that is not only overly generous to accused criminals, but also is so complicated that most police officers and many lawyers cannot understand it.

The Defendant’s Right to Pre-Trial Statements of the Government’s Witnesses

In 1990, in a standard “buy and bust” case, Mark Wallace was arrested for selling drugs to an undercover New York City cop. The police officer who watched the buy noted Wallace’s identity on a scrap of paper. After Wallace was arrested, the police officer incorporated what he had written on the paper into his police report and discarded the paper. As required by law, the prosecutor gave a copy of the policeman’s report to the defense. At Wallace’s trial, however, it came out that the officer had recorded his first observations on the discarded scrap of paper, which of course had never been shown to the defense. On those grounds alone, the Court of Appeals overturned Wallace’s conviction.

A much more notorious case made front-page headlines in March 1990 when a New York trial court reversed the attempted murder conviction of Richard Moore, a Black Panther leader who had been sent to prison in 1971 for firing a machine gun at the home of then New York District Attorney Frank Hogan, wounding two of his bodyguards. The conviction was reversed because at the time of Moore’s trial the prosecution failed to turn over to the defense certain FBI documents concerning the case. In fact the prosecutor had not known the documents existed, and the material would have been of no help to Moore’s defense. Nevertheless the court felt compelled to let Moore go (People v. Bin-Wahad, 1990).

The core right the New York Court of Appeals believed itself to be protecting in these cases is the right of cross-examination, i.e., the right to confront one’s accusers. The U.S. Supreme Court and Congress have long held that this right includes the right of the defense to examine the pretrial statements made by the prosecution’s witnesses. The federal system’s Jencks Act, for example, requires the prosecution to turn over the official signed statements of prosecution witnesses after those witnesses have testified at trial. The principle is obvious and fair: People are entitled to all the information being used to prosecute them. New York, however, has pushed this idea to an absurdity, so that New York State prosecutors live in fear of seeing cases torpedoed by an insignificant scrap of paper.

In 1961, in People v. Rosario, the Court of Appeals established a broader rule than the Jencks Act requires. The Court held that the defense is entitled to examine, before the prosecution and defense’s opening statements at trial, the statements of the People’s witnesses to the police, district attorney, or grand jury concerning the case. After Ro.4ario was incorporated by statute into the state’s criminal procedure law, the Court of Appeals and the lower courts interpreted it expansively, eventually requiring the prosecution to turn over to the defense practically everything a police officer writes, including notes, memo books, interview summaries, arrest reports, and daily activity reports, as well as—according to some court decisions—the statements of witnesses to private parties. Thus a New York State prosecutor is responsible for turning over to the defense a vast array of written material that may be of no consequence, some of which he may not even know about.

The great watershed in the life of Rosario was the Court of Appeal’s decision in People v. Ranghelle in 1986. Patsy (a.k.a. Joseph) Ranghelle had been convicted of menacing a New York City Department of Sanitation officer who had come to serve a summons on him. Ranghelle threw a piece of wood at the officer and threatened to blow her head off with a nearby rifle. His conviction was reversed because the prosecution failed to turn over to the defense some redundant police reports, even though the reports were not in the prosecutor’s possession, even though the prosecutor had made a good faith effort to obtain them from the police for the defense, and even though the prosecutor finally did obtain them for the defense, after the jury had been told that evidence was closed but before the summations.

In overturning Ranghelle’s conviction the Court held that if the prosecution fails to turn over any Rosario information, a conviction must be automatically overturned. It does not matter if the missing document is only one of thousands in a complex prosecution, redundant with other documents that have been turned over to the defense, or has no bearing on the defendant’s guilt.

Under federal law, failure to turn over information to which the defense is entitled does not require automatic reversal of a conviction. The court must first weigh the extent, prejudice, and bad faith of the prosecution’s failure. In Brady v. Maryland (1962) and United States v. Bagley, (1985), the U.S. Supreme Court held that the prosecution is constitutionally required to turn over to the defense exculpatory material, that is, material that might raise questions about the defendant’s guilt. But failure to do so does not necessarily require reversal. The judge must consider whether the withheld material would have had an effect on the outcome. If not he may rule the prosecutor’s failure a harmless error leaving the conviction intact. In New York no Rosario/Ranghelle error can ever be harmless; reversal is mandatory.

If there was ever a hypertechnical rule that undermines the criminal justice process this is it. It warrants criticism on grounds of cost and resources alone. Under Ranghelle, prosecutions that have lasted for months and cost the taxpayers millions of dollars are reversed even though no real injustice was done nor core civil rights violated. In its elaboration of this rule, the Court of Appeals has expressed deep distrust of prosecutors and simultaneously provided a windfall to criminal defendants. Judge Joseph W. Bellacosa of the New York Court of Appeals has branded the ruling “a law enforcer’s nightmare and a perpetrator’s “delight” (People v. Jones, 1987).

In 1990, the Office of Court Administration, on behalf of the judiciary, recommended that the Legislature pass a bill to allow for a good faith exception, eliminating the Ranghelle rule, “unless there is a reasonable possibility that such a failure might have contributed to the defendant’s conviction.” Like many other proposals to reform criminal procedures, this bill has gone nowhere.

Wiretapping

Electronic eavesdropping is an indispensable tool in investigating organized crime. Because of wiretapping, federal prosecutors have had spectacular success fighting Cosa Nostra and other mafia organizations over the last decade. New York State prosecutors, however, have not been able to use wiretapping nearly as effectively.

The federal government comprehensively regulates the use of wiretapping. In 1968 Congress passed Title III of the Omnibus Crime Control and Safe Streets Act. It permits wiretapping but includes important substantive and procedural safeguards. A law enforcement agency that wants to use wiretapping or another form of electronic eavesdropping must first convince a court that it has probable cause and has exhausted traditional means of obtaining the necessary evidence. Even if the judge grants the request, time limits are set for the eavesdropping. Law enforcement personnel must “minimize” the intrusion on the privacy of suspects by turning the recording device off unless incriminating information is being discussed. Each tape of intercepted communications must be properly “sealed” by a judge at the termination of the wiretap operation.

New York’s Legislature and Court of Appeals have also generated a series of technical rules governing the sealing of tapes. While federal law requires the tapes be sealed by a judge at the conclusion of the operation, New York law requires sealing at the expiration of the original warrant and at the close of each extension. Failure to have the tapes sealed on time renders inadmissible both the tapes and any evidence derived from them after the obligation to seal arose (People v. Weiss, 1980).

The failure to follow the rules governing sealing has been dealt with very strictly. The Court of Appeals has held that failure to seal properly is grounds for automatic reversal of a conviction or suppression of the evidence regardless of whether the error was in good faith or de minimis (People v. Sher, 1976). In People v. Gallina (1985) the Court of Appeals held that a two-day delay could not be excused. And in the noted case of People v. Winograd (1986) the Court held that a delay in sealing tapes from a Saturday to the following Monday is inexcusable where law enforcement authorities offer no excuse other than an intervening weekend. There is no justification for this extraordinary emphasis on the timeliness of sealing. A single day’s delay certainly does not increase the possibility that police might tamper with the tapes.

New York procedure also requires that the prosecution give notice to the defendant within 15 days after arraignment of its intention to rely on wiretap evidence. Under Rosario, this really means turning over all the papers on which the wiretap application was based so that the defendant can prepare his motion to suppress the wiretap evidence. If the prosecution inadvertently misses the 15th day, it loses all the evidence obtained from the wiretap unless it can show good cause for its delay.

Technical Fouls

The examples I have chosen are not aberrations, but typical of a large array of rules that especially encumber prosecutions of organized crime and other complex criminal investigations. If space had permitted, I could have easily multiplied examples.

It is unclear why New York’s jurisprudence has so diverged from the federal and most state traditions. In part, no doubt, New York’s rules reflect an unusually strong commitment to defendants’ rights. Yet few of the procedures discussed here make any real contribution to the defense of civil rights and liberties. Most of these wooden and inflexible rules hinder or “punish” law enforcement for failing to adhere to secondary or tertiary procedures that are not closely linked to core liberties. Moreover, most of these technical obstacles redound much more to the benefit of organized crime figures and professional criminals than to the poor and nave offenders who are the usual intended beneficiaries of expanded rights for criminal defendants.

Part of the explanation for New York’s unusual criminal jurisprudence must lie in the institutional history and current personalities of the State Legislature and the Court of Appeals. It may be significant that no current member of the New York Court of Appeals has served as a criminal prosecutor. Moreover, a large number of New York legislators (and many legislative leaders) have practiced as, and are currently partners in law firms with, criminal defense lawyers. Perhaps our legislators and judges simply have an inadequate grasp of the necessities of modern law enforcement. Some prosecutors have suggested a cynical explanation for the Legislature’s stance on these questions: Nearly all the criminal procedure rules discussed here are particularly frustrating to prosecutors of white collar crimes, including political corruption. Indeed Senate Codes Committee Chairman Dale Volker has been quoted as saying that the Legislature is disinclined to increase prosecutorial powers “when some legislators feel there are political prosecutions [for corruption] going on.”

Whatever the reason for New York’s unusual laws of criminal procedure, those procedures hinder law enforcement with out enhancing core civil liberties. They extract from New Yorkers a high price in lost personal security, and in public and private corruption, with no appreciable payoff in return.

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