The vast majority of prosecutions, both state and federal, end in negotiated guilty pleas. In the federal system, for example, only 3% of all criminal cases result in a jury trial – the other 97% are resolved through plea bargaining. Despite the great likelihood of a guilty plea in every prosecution, some cases cannot end in a plea as the prosecutor’s offer is simply too high: a conviction after trial may result in a sentence not far off from the plea offer. And in other cases, the offers are higher than the client and his lawyer believe is appropriate considering the evidence, thus requiring trial preparation. But if you hire a top criminal defense attorney to represent you, his trial preparation will be so extensive that a byproduct of the hard work very well may be the lowering of the prosecutor’s plea offers, from unreasonable to good to great. While the average lawyer figures that the case which starts with a lousy plea offer will still ultimately plead out – and he treats the case that way – some of the best New York criminal lawyers work the case hard enough to ensure that the best possible result occurs: either an acquittal after trial or a very low plea offer.
An Offer Too High is Refused
A recent case of ours demonstrates this point. In 2014, in People v. Gillespie, Ind. No. 937/2014, we represented an individual charged in Queens County with Attempted Second Degree Murder (PL § 110/125.25); Second Degree Criminal Possession of a Weapon (PL § 265.03) and Reckless Endangerment in the First Degree (PL § 120.25). As a predicate offender, our client was facing 8 1/3 to 25 years in prison and given the nature of the charges and his criminal history, he would have surely been denied parole numerous times and served approximately 12-16 years of that sentence if convicted after trial. Plea negotiations with the District Attorney’s Office yielded a firm offer of seven years; the prosecutor informed us that because our client was so dangerous they would rather lose at trial than lower the offer. Of course, we believed the offer to be far too high considering that the case rested on a single eyewitness identification of our client made by the purported victim during a shooting in a lightened doorway during a party in Far Rockaway, New York. Also in our favor: our months-long investigation of court records throughout the state had revealed that the witness had a lengthy criminal record, with multiple bench warrants issued for failing to show up in court, a significant history of lying to judges throughout New York, and a severe alcohol and marijuana problem which may have affected his ability to view his shooter at the time of the incident. None of this information – which severely impeached the witness’s credibility – was turned over by the prosecution, instead, it was developed through our own investigation with the mindset that a trial surely would ensue.
The Motion to Suppress the Identification is Made
So we continued to prepare for trial. As the prosecution’s case rested upon a single eyewitness identification – who had allegedly been shot at by our client while answering the door at a party – we made suppressing that identification a primary strategy. We filed extensive pretrial motions and were granted a Wade hearing to challenge the lineup procedure utilized by police wherein our client was identified as the shooter. United States v. Wade, 388 U.S. 218 (1967). To briefly explain, Wade hearings typically occur in a bifurcated manner: first, to determine if the procedure utilized by the police was unduly suggestive; and, if so, second, to determine if an independent source exists for the witness to make an in-court identification without mentioning the lineup. People v. Laffman, 161 A.D.2d 111, 112, 554 N.Y.S.2d 840, 841 (1st Dept. 1990). The first part of the hearing usually involves the testimony of the police officer who organized the lineup; and the second – and key portion – involves testimony from the witness who picked out the defendant at the lineup. The latter is especially important as it gives the defense attorney an opportunity to test the witness’s credibility and recollection of events in advance of trial; however, to get there you must win the former – by proving that law enforcement tainted the lineup.
Here, a combination of skill and determination on our part won the first phase – and a pounding cross-examination of the eyewitness during the second phase convinced the prosecutor that his case was on the ropes and that his witness was unreliable. Specifically, during the first phase of the Wade hearing, the police officer who arranged the lineup admitted during cross-examination that he had never conducted a lineup identification in all his years of service. Knowing that some infirmity might therefore exist – some protocol violated – we continued in a lengthy examination of every detail of the procedure utilized that day. Indeed, while this questioning routinely takes only a matter of minutes, we asked hundreds of questions, digging into the minutia and causing the judge to question rhetorically whether we were “getting paid by the hour,” because of the exhaustive questioning. Eventually the effort paid off: during the examination, the officer admitted that he confirmed for the witness – after the lineup had taken place and while he was driving the witness home from the precinct – that he had “picked out the same guy” who he had chosen in a photo array days earlier; in essence, inappropriately telling the witness that his lineup choice was correct. The judge held that this comment tainted the entire procedure and any “identification testimony” which mentioned the lineup identification by the witness was barred from trial. The state’s case rocked, the prosecutor’s offer immediately dropped from seven to four years imprisonment.
Still Looking For a Better Deal — Or an Acquittal
We pressed on, however, knowing that additional weakness in the prosecution’s case lay ahead. During the second phase of the Wade hearing – where the state needed to demonstrate that an independent source existed for their witness to even be permitted to make a credible in-court identification of the defendant during the trial (the lineup identification could no longer be mentioned in front of the jury), the prosecutor’s eyewitness was completely and systematically discredited using the results of our exhaustive investigation. During the relentless cross-examination of the witness designed to show that the witness did not clearly see the shooter, we exposed his drinking and drug problems, his lengthy criminal record – including pending cases and others of which the prosecutor was not even aware – and his history of lying to judges and running from justice. Indeed, the records we had located revealed that the witness had been so drunk in recent history that he passed out in the middle of a street and then attacked police officers trying to help him when he was about to be run over by a truck. Despite admitting he had been in rehab for drinking and had a severe marijuana problem at the time, the witness obviously lied under oath when testifying that he didn’t drink or smoke pot the day of the shooting – even though he was forced to admit everyone around him were partaking in both all day. His story simply made no sense.
Further, during our cross-examination, this witness admitted that he had only seven seconds to view the shooter before closing his eyes and identified his assailant to police as being nearly five inches taller than our client. With the evidence coming out during the hearings, the prosecutor became convinced he faced a very real chance of losing the trial – and he dropped his offer further, to an offer of a plea to Attempted Second Degree Criminal Possession of a Weapon (PL §§ 110/265.03). With the possibility of serving double digit years in prison if convicted at trial, our client, who was detained in jail pending the trial and thus getting credit for any plea offer which included jail time, accepted the offer on the opening day of trial, knowing he’d be out of jail in a matter of months.
In the end, despite pleading the case out before trial every bit of our trial preparation was worthwhile, even if the written opening statement and cross-examination outlines ended up in the trashcan. Our work forced the prosecutor’s hand and in the light of day his case fell apart. As no one wants to spend time in prison, you shouldn’t choose a lawyer who isn’t prepared to go to the mat to prevent such a result. There’s a reason why the attorneys at the Law Offices of Jeffrey Lichtman are hired to handle criminal cases not just in New York City and across the state – but across the country as well. Our record is filled with successes in some of the toughest courtroom battles in New York – which translates very well to cases outside of New York, simply because the prosecutors are not accustomed to dealing with such well-prepared, thorough and skilled defense attorneys. Call us at (212) 581-1001 for a consultation today.