Chapter 5 - Prosecutors

Defenders discuss their views of prosecutors.

What is your general perception of the prosecutors in your borough?

Unsurprisingly, Defenders have negative views of prosecutors. A few Defenders are charitable in their responses. One Defender opines: “I think that they are by and large a group of people who want to do right and have gotten seduced into thinking that the system does right more often than it doesn't. So I think, by and large, they're good people who kind of bought in, and that makes them do terrible things.” Another Defender states: “Of course, there are some assistant district attorneys that are better than others. There are some that I genuinely have decent relationships with and like as human beings, although we view the world very differently. I think some of them are good people that have been brought up differently and have different experiences, and they truly believe that what they are doing is right.” Adds another Defender: “That's a tough question because you can't generalize with them. There are some awful, awful, awful, awful prosecutors, who seem to me to live on a different planet. Then there are some fair, kindhearted prosecutors who [I can respect], even though I could not do that kind of work.”

This Defender offers the following answer about Brooklyn prosecutors specifically:

I think with some of these new offices where you get the superstar head of the office, a Ken Thompson or an Eric Gonzalez, I feel like maybe they can draw off people of color who are like, yeah, I'm gonna go work for this progressive prosecutor to change things and make my community better because I was bullied; I was treated badly and my neighborhood is horrible! That’s the kind of story they have to tell themselves, that identity piece that they assume. And I’ll admit that anybody can have that identity piece; public defenders can get it the same way. I think we all buy into this strongly held identity that just takes a person way too far to where that person can't be reasonable.

Most Defenders are far less kind. One Defender states: “I think they're full of shit. Sorry for saying they’re full of shit; let me be less crass. In the borough that—, but I don't even limit it to the borough that I that I work in. I feel this way about prosecutors in general: I don't have respect for prosecutors, which is why I don't agree with folks who say, ‘Oh, we could do either job.’ I disagree with them. If you say you could do either job, then you're not doing the job of a defender very well….” Another answers: “Lazy, heartless, not that bright.” Another states: “I'd say they are evil, they're lazy, and they're weak…. They have very warped views of what a person would do or what a person wouldn't do. I don't know; it's like they're aliens, and they actually don't know human beings. It’s like maybe they're robots or something like that; and they don't know how people are like.” Adds another Defender: “They’re either dumb or evil.”

Many Defenders think that prosecutors are completely out of touch with the realities of everyday people. One Defender explains: “They've probably never lived somewhere where someone got stopped and frisked by police, where someone got beat up by a cop because they were angry that the cop had so much power over them and was treating them like they were less than human. So when they get this job, they believe in law and order. They believe what they read on the news and they believe the NYPD and believe that citizens only call 9-1-1 and the police when something is wrong.” Another Defender concurs: “The first thing that comes to mind is that they live in a completely unrealistic world. A lot of the times I just really wonder about what their personal life experiences are and why they can't just see a situation for what it is, as opposed to how it's written on a complaint….” Another Defender adds: “I think that they really are very much disconnected from the communities [that] they prosecute. And I also think that they don't have any perspective of what prison is like and what jails are like, what it is like there on a day-to-day basis. They are so cavalier about jail sentences: ‘Oh, it's just a couple of days in jail.’ They don't understand what that could mean for not only the stability of someone's life, but also how horrible those conditions are, whether it's for one day, three days, five days, 10 years, 12 to life, 15 to life, 20 to life. I think that's the politest way I can say that.”

The district attorney’s office in each borough seems to have its own flavor. In the Bronx, Defenders generally think prosecutors are dumb, incompetent, and completely out of touch with Bronx residents. Says one Defender: “I think that in my borough specifically, as compared to other boroughs, they're not that intelligent or well trained in the law. In some ways, I think that makes our job even more challenging because they make a lot of arguments that make no sense or don't have a legal basis, but might sound good; or they might be able to persuade a judge who's relying more on emotional reasonings or things like that….” Adds another Defender: “They’re not the cream of the crop when it comes to prosecutors. I feel like people end up in the Bronx when they couldn’t get a job in Brooklyn or Manhattan; and it shows. They’re poorly supervised and poorly trained, and they’re thrown in the fire. So the new ADAs [follow] this new training system where they’re just told to stand up in a part all day, and then someone more senior to them just whispers in their ear what to say. That’s how they learn. They have no real training program like the way we have … where we learn about the law and the [practice]. I’ve heard they don’t have any of that, and it’s really apparent….” Another Defender concurs:

They're machines—robots, specifically—who have no concept of the people that they so-called “serve”! … Everything that they do, [they have to be told], which is why I call them robots. Because with a robot, like a computer or whatever, you have to input information; and then it spits it out. And that's what [prosecutors] do. Someone else tells them what to say, and then it comes out their mouth. I didn’t fucking go to law school for three years and [accrue] a million dollars in law student debt to be a fucking robot! I went to be fucking Johnnie Cochran and Clarence Darrow, not to be a fucking robot like R2D2¹ just spitting out information! (Author laughs) It's insane to me. They’re like, “Oh, I have to talk to my supervisor about that.” You have to talk to a supervisor to change [an offer] from a disorderly conduct violation to an ACD? You have to talk to somebody about that?

One Defender adds the following anecdote:

One time I was talking to a friend, a public defender in another jurisdiction, about a case I had where the prosecution was asking for an extension to respond to one of my briefs. One of the reasons they needed an extension was because my brief was “too long” and they didn’t have time to read it all. My friend said, “Did we not all go to law school? Did we not have to read, like, hundreds of pages in a day? If a lawyer came into a courtroom here and said, ‘Judge you know I didn't have a chance to read everything for weeks and weeks and weeks, because it was too long,’ they would get laughed out of the courthouse.”

But for some reason in the Bronx, it's okay for the prosecutors to be incredibly inept in a way that is not helpful to our clients. They ended up getting the extension that they wanted because they couldn’t read quickly. Plus, it was a speedy trial motion to dismiss. The only reason why I even filed the motion is because they weren’t handling their business in a timely fashion. And now they were delaying even more because they were a slow reader.

One Defender offers this example of Bronx ADAs being out of touch:

I remember I had a case where my client was testifying in the grand jury. She testified that she had bought three loosies from somebody, and the prosecutor asked her if she got a receipt for the loose cigarettes. I was laughing at her, the grand jury was laughing, and my client was laughing. But that was real, right? There's sort of the regular ebb and flow of community that happens, and her actually demanding proof around that was completely foreign to them. Receipts for loosies? No one is going to have that.

As the most racially diverse borough, the Bronx is also the one place where the assistant district attorneys are least likely to live in the borough where they worked. One Defender states: “I found that when I was in the Bronx, there was a cohort of young white people from Long Island that basically drove to work every day to put Black people in jail. That was their whole goal, and even their values were crazy.” Another Defender concurs: “A lot of them, they're young. They don't live in the same area that we live in for the most part. They live in Westchester, or they live in Park Slope, or they live in Jersey; and I feel like they are so detached from the communities that they actually are prosecuting, and they don't get it.” Adds another Defender: “They're ‘the People’; but the people they ‘serve’ they don’t know, because those are the people that they're prosecuting. They don't know the people of the county, the law-abiding citizens of their county that they work for. They don't know those people either. They don't live in the county, a lot of them….” Another Defender gives this account:

Across the street from the courthouse is a mall. Inside the mall used to be a movie theater; it's still a movie theater, I think. There was also a huge food court where everyone would get food at lunch. It was an actual food court; and the ADAs would call it “Perp Plaza.” Perp Plaza. These people, including their own DA, who was Robert Johnson at the time, would eat there. You would see Robert Johnson walking through the food court getting lunch just like everybody else. But that was one of the only places where people could get food at lunchtime during that time. There wasn't a Chipotle or whatever else that's over there [now]. It was just that food court, and everybody would be in there. People from the community would be in there, because there were all kinds of different foods in there. And the ADAs would call it that. These are the people that you are serving: “perps.”

Manhattan is a different world; the prosecutors there tend to be politically motivated and intensely ambitious. One Defender explains: “With Manhattan prosecutors, the key word is power. I feel like a lot of people were drawn to the Manhattan District Attorney’s Office because they wanted to be U.S. attorneys at some point; and to say that you worked at the district attorney’s office in New York County, it’s a steppingstone for you. Whether it's in New York or wherever else—whatever bumblefuck town these folks came from—they can become a Manhattan prosecutor and then go be a federal prosecutor back where they're from. So it’s a steppingstone that they got off on….” Another Defender concurs: “They value their career more than anything. They’re cold, and they’re awful…. I think for the most part, the culture in the Manhattan District Attorney's Office is very unethical and immoral. I think a lot of these people are using our poor, drug addicted, mentally ill clients as a steppingstone so that they can work for the U.S. Attorney General's office or go into politics or whatever else.” One Defender tells this story:

I had a case with a client I'll never forget. This is one of my first years of practice in the criminal trial division. It was a misdemeanor case with a client who had no record, but he had an immigration hold. That was before the immigration detainer laws had changed. So, if you had that hold, unless you had gotten a non-criminal disposition, you remained in [jail]. If you got a violation, then they wouldn't continue to hold you.

The ADA knew this, but the ADA wanted to get trial experience. My client sat in for 72 days. 72 days! Now granted, this was a [case] that no one was ever going to win. With that said, the ADA could have easily given him the infraction. That happens all the time…. Despite the fact that it was the client's first arrest, this white man was going to utilize this as an opportunity to get his trial experience. And I knew that's what it was when his supervisor at the time, to whom I made arguments for my client to get the infraction, said “I can't bend on this. I promised Nicholas a trial.” Imagine! “I promised Nicholas a trial.”

The only reason why my client came up out of that was because the week that it was scheduled for the hearings and trial, Nicholas apparently was going on his honeymoon. But it meant nothing to him one way or the other. And I think that for me was just so telling in terms of how ADAs operate.

One Defender has this to say about Manhattan prosecutors:

[Manhattan prosecutors] will lie, cheat and steal. It doesn't matter whether I went to elementary school, junior high school, college, or law school with them. They’re not going to be straight up. They've gotta defend Whitelandia. (Author laughs) I didn't quite get how bad it was until I started practicing in other counties. [When I was a public defender], some of my law school friends were prosecutors in some of the other boroughs; and they used to laugh at the stories I used to tell. They'd be like, “Oh my God, we wouldn't even prosecute that in the Bronx. Are you kidding me?”

One day I was in Brooklyn Supreme Court. I can’t remember what my guy was charged with; probably drugs. And the prosecutor said to me, “Well, [My Name], you don't have to worry so much about this case, because the undercover officer just got deployed.” At the time I think we were popping off in Iraq or Afghanistan. I can’t remember where; somewhere out there. Anyhow, so the prosecutor told me that, and then she looked at me and she’s like, “What’s wrong?” And I said, “Believe me, even if we knew each other for years, if you were in the Manhattan DA’s office, you would not have ever admitted that to me.” It wouldn’t have happened in a million years. It’s just not how Manhattan gets down. They're not big on truth….

They're also kept purposely ignorant about shit, so when they lie to you, they don't even know that they're lying; or they don't even know how to have the conversation with you. It's amazing. It's frightening as fuck…. I look at people that are 10, 20 years younger than me, and they've gone through the same road that I've gone through [in terms of] education; and it amazes me that it just seems like there's nothing in their heads. They just can't have the conversation with me. I get frustrated, and then the street dude in me wants to come out; but then the Black dude in me wants to come out; and then I just shut up and shut down. (Author laughs)

There was a time where I would pick that phone up and call ADAs. I don't call them anymore. I’m like, fuck it. I'll deal with you in court. Nothing good is going to happen; the conversation's going to go nowhere. This is horrible. And these people are in charge of [other] people's lives.

The Staten Island District Attorney’s Office is pretty bad as well. One Defender explains: “Staten Island prosecutors are so uncompromising. They always believed they were right. They are close-minded; they only hear out and believe one side of the story. And they lie all the time. I know this because I had friends who worked in that office and left; and they told me how they were so sick of the corruption that they had to leave. They couldn’t stand being part of the lie.” Another Defender agrees: “[Staten Island prosecutors], much like the judges, are in a way removed from the lives of the people that they're prosecuting, with really no understanding of poverty, of racism. But that office is entirely white, basically…. They pushed out all the people of color, so the office was all white. They're all Staten Islanders. They're all Irish or Italian; and they're from a little club…. It’s really clique-ish.” This Defender states the following:

When I came to Staten Island, I kept thinking, is something wrong? Am I not getting it? Am I just missing something? I thought I would deteriorate as a defense counsel…. And then I realized that it wasn't me. It was them. They just didn't know what they were doing…. I don't think these ADAs get trained; and if they do get trained, they aren't getting trained by people who know how to prosecute a case…. I don't know if there's any difference between Brooklyn and Manhattan or the Bronx and Manhattan, but there's really a difference between Staten Island and the rest of the planet….

They’re dumb in Staten Island. They’re really dumb in Staten Island. But they’re mean! And they’re vicious. They don’t plea bargain. We had no diversion in Staten Island.

In Queens, the entire court practice is DA-friendly. One Defender observes: “Queens is an extremely prosecutorial-friendly environment; I don't really know that there's a huge demand that's placed on them to actually know the law, because it’s like whatever they say goes in Queens.” Another Defender adds: “They're all drinking the Kool-Aid.² The sense I get from the largely white male, largely privileged class of prosecutors, and often white female prosecutors also, is that they cannot relate to the struggles or the issues that a lot of our clients have that bring them to the point of becoming our clients. On top of that, they believe that our clients are the criminals of the century, even if it's an issue of marijuana or if it's small or not a very serious crime.” Another Defender thinks that prosecutors in Queens were “looking for some kind of elusive power in their office; that they were looking for conviction rates. They didn't really care about the complainants; it was just a job. They just really did not care.”

Finally, Defenders report that Brooklyn ADAs tend to be particularly dishonest. One Defender states: “A lot of them are dishonest. There are plenty of times where a prosecutor has said something to me [off the record], like at the rail [inside the courtroom, when we’re conferencing a case before it gets called on the record]; and then we get on the record and they’ll say something completely different. And I'm like, are you serious? Or they’ll just ambush you with something.” Another Defender concurs: “You know one of the things that also struck me about prosecutors in Brooklyn, which I had really not experienced to the same extent elsewhere was [how unethical they are]. I know I dealt with unethical prosecutors before [in the other places where I have practiced], but never to the same extent that I had in Brooklyn. That was kind of really shocking. For a place that has much more open-minded policies regarding the resolution of cases—whereas in Manhattan they would make an offer of a decade in prison, on a case in Brooklyn, they'll consider a program. You can persuade them if you just kind of wear them down over time in Brooklyn—prosecutors just flat out lie to me at times, and it's been shocking.” The Defender then offers this example:

One of the worst cases I had very early on in Brooklyn was with a client I picked up on a gun possession case. I had an investigator get the video and you could see the client and a co-defendant walking together but separated, probably like five to six feet apart. The police pull up on them for God knows what reason, and so the client gets in a panic and actually takes off. You can see in the video the co-defendant pull out a gun from his waistband, take it and throw it. I get the video and I'm like, great; this should be pretty straightforward, and his case should be dismissed.

I remember showing that video to the grand jury prosecutor, and she's like, “This just proves my case,” and I'm like, “What are you talking about? You know it was outrageous. Let me talk to your supervisor.” So she talked to the supervisor and the supervisor said that my client would have to waive 180.80 in order for him to really take a look at the case. I’m like, “Waive 180.80 for what? So he has to sit in jail for another week or whatever while you dither around and take a look at this video? Screw that; we’ll go to the grand jury today.” So he did, and luckily [the grand jury refused to indict him.] But it was disappointing because these fuckers knew about this, and they really prosecuted him in bad faith.

Across all five boroughs, Defenders notice how highly prosecutors think of themselves. A Defender in the Bronx notes that as a general matter, “prosecutors can be somewhat sanctimonious…. I think that they're more prone to hubris in a way that I don't think public defenders can be because we lose too much.” One Defender in Brooklyn states: “Some are awful because they have this paternalistic sense of self. They’re like, I know better than you. I'm saving the world. One prosecutor told my colleague that it's his job to protect the women of Brooklyn. Like, what? Your job is not to protect the women of Brooklyn.” One Defender in Queens remarks: “I think it's easy to be self-righteous when you're a prosecutor. They really lean into that self-righteousness.… The way the system is designed, you’re in a posture to have to beg them for things; and they have the ability to decide whether they're benevolent or not….” A Defender in Manhattan observes there to be a “fake prestige thing” about Manhattan prosecutors.

Defenders across the city also point out the hypocrisy of prosecutors; ADAs would often engage in the same behaviors they prosecute others for. One Defender explains: “There was a lot of white or white-adjacent folks who just got the badge bestowed on them like superpowers. And I learned in my time there that they were probably some of the worst in terms of drug use and things like that. These were all things I know they were doing at parties. Their friends were bankers; their friends were in corporate firms. So their friends were doing this stuff, and I know they were doing that stuff also. The sort of sheer hypocrisy of it to me…. I would say a good percentage of them were just [hypocrites] that were snorting cocaine and then coming in prosecuting people for drugs.” Another Defender shares similar sentiments: “I often found that there were folks who were really hypocritical in many ways. With some of the things that I know people did in their own lives, to then come into work and try to prosecute people of color for doing those same things, related to drug use or whatever else, I always found super hypocritical.”

A few more responses and stories:

Defender I have a lot of situations with prosecutors doing extremely unethical things, like hiding evidence, not turning things over, or straight up lying to my face. I had a [client] who was 78 years old, and he was HIV positive living in an HIV shelter. He was struck in the head with a metal rod during a fight to the point where he was leaking and bleeding all over the place. The guy [that attacked my client] leaves the area and goes to his room, cuts himself with a razor in his room, comes out and claims that my client cut him. My client is charged with felony assault and spends over a year coming back and forth to court. I showed the prosecutor video of the guy hitting my client and my client doing nothing to the guy—he’s not cutting him, my client doesn't have a knife in his hand, he doesn't have anything—and the prosecutor says, “Well, I think I can prove that your client attempted to assault him.” (Author reacts) Yep. That’s what the prosecutor told me. And I’m like, this is a 78-year-old with fucking AIDS! You are a piece of shit. You are a piece of fucking shit. And he would later shift his theory of the case so that he could continue prosecuting my client. And unfortunately, there is a large population of assistant district attorneys that I deal with that are like that prosecutor….

Defender I don't necessarily think they understand what they are doing. I really think that they all have tunnel vision and they all believe their cops or their complaining witnesses. They do not think about the entire picture and what makes or doesn't make sense. [When I speak to] my client, I don't know what happened. I was not there. I can listen to my client's story, I can read the complaint and I can see the paperwork, and based on that, I could tell my client [either], “what you’re telling me makes absolutely positively no sense, and you're lying,” or “I see where you're going. We can work this out.” Prosecutors tend not to do that. They do not push, they don't question. They just absorb and then regurgitate without any thought…. It's amazing to me some of the cases and some of the conversations that I have with them. I’ll say, “Let's just think about this for a minute,” and they just won't engage in logic. They're just so wedded to, “This is what happened. This is what they said. So it must be true.” [I’m like], no! Oh my God! Think for a second; that [narrative] makes no sense. But they're so wedded to certain beliefs that they won't let go of it.

So I don't think they really understand certain things, and I don't know if it's because the people that they're prosecuting are Black and Brown and [therefore] can be discarded or because that's just the nature of the job.

Defender I think in general that they're followers. I see them as not concerned about justice or innocence or fairness or equality. I see them, generally speaking, as people who have a job and feel constrained and want to perform to the standards that the job has imposed on them, not the standards of equality, justice, innocence, fairness. I've never seen any curiosity about innocence. No curiosity about whether something is fair or balanced, no curiosity about the impact any of this has on anyone….

I had a case one time against the same prosecutor that presented the police killing of Eric Garner to the grand jury. [My client was charged with attempted murder.] There was something about my client where [what he told me] just sounded true. He gave a statement to the police when he was arrested. He told them where he was; he had an alibi. He told them where he was when this happened…. I tell the prosecutor this, and the prosecutor just kept saying, “Well, they know each other. Why would the complainant witness lie? They know each other. They're both involved in this. They know each other. Why would he lie?” I thought to myself, I don't know why. You figure out why he would lie. There are plenty of motivations for people to lie. Sometimes we never know why people lie. That doesn't mean they don't lie….

The police went to the apartment building where [my client] said he was—the building had video cameras there—and they downloaded 30 minutes of video from one, maybe two cameras. Mind you, there are cameras on each floor. There are cameras in the elevator. There are cameras by the back door. There are cameras in the entrance, in the front hallway, and in a lot of different places. My client had told me he was on whatever floor in this apartment. [The police] downloaded literally like 30 to 40 minutes of video. That's it. They went in with their little flash drive, got 30 or 40 minutes of video from one or two cameras—if I remember correctly—and said, “Oh, he's not on here.”

Our investigators went and downloaded 24 hours. That's what you do when you really want to find the truth. We got 24 hours of video. And it was literally like three minutes after where the video ended for the police [when my client appears]; if the police would've waited three more minutes, they would've seen my client. We got 24 hours of video. We watched him, we checked when he went in and went out and was on which floor, and we created a timeline. It was only after we did that—I made a timeline for the prosecutor of where to look, etc., and provided it to him—that they then confronted the complaining witness…. The complaining witness eventually admitted that he had lied, that it wasn't [my client], and that it was somebody else.

[But how was the prosecutor before I provided him this?] “Why would he lie?” Like, you weren't curious if he was lying. You didn't look further, you didn't push. We had to get the video [to supplement] your half-ass investigation of 30, 40 minutes of video.

That makes you think: how many times has that happened? How many times does that happen? Because that’s what happens when you’re not curious, or when you don't have the weight of innocence on your shoulders. When you don't feel that that's what happens, that's how you investigate. It was an attempted murder case. He could have gone to jail for a long time. When [prosecutors] are curious, you see the force and the investigation and the resources that they put into something; and that's usually to prosecute….

This case [ultimately was] dismissed, but it just shows the bias. Some people say, “Well, once you got it, he did do the right thing. He did confront him. He didn't find excuses for it, and he did dismiss it.” But what would happen if we had a system of prosecutors that were skeptical of their cases? When you're skeptical and when you feel the burden of someone innocent going to jail, you do things differently. You want those outcomes to be produced from the inception, not on the back end after someone's been in jail for eight months.

Defender [Prosecutors] just come with these random actions. How are you giving this person an ACD that has a rap sheet like a book, and then you give my client—this is her first offense, it's a co-defendant case, the co-defendants took the blame and already pled guilty, the co-defendant is already serving time, my client is not taking anything because she didn't do anything—you want her to do two years in jail? Yet that's the case I have going on right now with an ADA, and that's ridiculous….

Defender I feel like there are different types. They are all horrible for our clients, but I think there are different types of horrible. Like in the summer of 2020, there was a letter that went out from the younger prosecutors talking about Black Lives Matter and all that crap.³ It's just wild to see. Black Lives Matter to you when it comes to social media, when it comes to doing stuff online; but they don’t matter when it comes to prosecuting Black people. We sent the letter around in our Black attorney group chat. For every single prosecutor that signed that letter, someone in the Black group chat had horrible stories on that prosecutor. We sent around the list of names; and just one by one, someone is like, “Oh no, this prosecutor's trash. They did X, Y, Z on this case. This prosecutor's trash. They did blah, blah, blah, in that case.”

So you've got the sort of “I'm a prosecutor because we need great, very fine people on both sides” type people. Then you have sort of the Scaccia’s and other folks who then sent a letter responding [to the Black Lives Matter letter], basically saying, “You’re all young dumb idiots” and “Black lives don't matter.” Not exactly in those words, but basically their response was, this is stupid, these people are violent criminals, blah, blah, blah.⁴

So I feel like you have different types. And a lot of the times you'll have people who think that they're doing the right thing; but when it comes down to it, just like in the group text, there's an issue with every single one of them.

Defender I remember one prosecutor that I guess felt like she was okay because she was friends with a couple of colleagues of mine that were friends of mine. She gives me a good offer on one case; I don't even remember what the offer was. And so she calls me on a different case and asks me not to file a motion in that case because she gave me an offer in the [first] case I just asked her about. I said, “Excuse me? What? Are you—? I don't understand. Why would you assume that I would do that?” I was floored. After that, we didn't have a great relationship….

There were two prosecutors that I had respect for. I was like, okay, they really care about the clients. One was [a white man], and everybody in the office loved him. I think he had some kind of connection to the higher ups and whatever, so he could give me ACDs all day and wouldn't get into any kind of issue with it. And so that was great. The other was a Black woman who did not last long. She was great. She really cared about the clients. She had a genuine desire for justice, which is why she went into the DA's office. It didn't work out.

Defender [In the borough I practiced in, there were] multiple prosecutors in a courtroom. So there will be one prosecutor that's on the record and one that will conference cases with us…. They are locked in place at their little computers in front of the judge, and when the judge asks them a question that's not on their piece of paper, you can see the malfunction. (Author laughs) You can see that the gears are turning and they’re like, I have to think for myself. They can't comprehend it; they can't do it. They just constantly say on the record, “I don't know. I don't have this information. I don't know. I don't know.” And I've heard judges start to say, “Well, for all intents and purposes, this is your case. Like, you're standing up on this. You need to know about it.” But they don't ever know shit. If it's not on their piece of paper, that's it.

FN 1: Star Wars reference.

FN 2: This Defender added: “When I say they're drinking the Kool-Aid, it just means that they're a cog in the wheel.”

FN 3: See the last three pages of the following link: https://www.nycdetectives.org/wp-content/uploads/2020/06/BRONX-DA-LETTERS-2.pdf.

FN 4: See, e.g., a response letter by ADA Paul C. Rosenfeld, linked on this page: https://nycdetectives.org/news/open-letter-to-bronx-district-attorney-darcel-clark/.

How knowledgeable are prosecutors on the law?

Defenders’ answers to this question are a little varied, although less varied than their thoughts about judicial knowledge of the law. In the main, most Defenders report that prosecutors are not particularly knowledgeable. One Defender states: “Most of the time, they don't know what they're talking about. There are very few prosecutors I could say actually are diligent about their work.” Another Defender concurs: “I don't think many of them know the law very well. I think they, like judges, figure it out as they go along; after some time, you have some prosecutors that are smarter than others.” One Defender is blunt: “Some of them are complete idiots. It is mind-boggling some of the things they will say in a motion or in open court.” Another Defender states: “I would say not that much. That was something that we used to talk about, our colleagues at [the office], that they didn't seem that knowledgeable on the law. Whether it came to answering motions [or other matters], they just weren't knowledgeable on the law.” Adds another Defender: “I would say the majority of them are not good on the law. A lot of them just go based off what their supervisors say or what their supervisors expect from them, and a lot of times, that's also not based on the law. That's just based on [their mandate to] get their numbers….”

Many Defenders further note that prosecutors don’t need to know the law well, because they generally get what they want anyway. One Defender notes: “Most of them rely on the fact that the system is slanted in their favor to do what they're going to do.” Another Defender remarks: “I think by and large, they are not very smart, and I think it’s really not about them being smart. I think that when you have everything handed to you, you don’t really have to learn a lot. It’s just one of those things where you just pull up a template, pull up a sample, follow some harebrained situation that preceded me; and so it’s almost like they’re being fed a lot.” Adds another Defender: “I don't think they do as much work as people think. I think they're lazy because they know that the judges are already on their side, so they don't have to put in as much effort as we do; and they know that. You get a certain judge, you know what you have to do, you know the magic word to say. And they can sit back, relax and get that win or get that motion granted.”

Defenders note that the more senior prosecutors tend to be knowledgeable, at least more so than the younger prosecutors. One Defender explains: “I think the longer that they've been on the job, the more knowledgeable they are about the law. They have a high caseload as well; it’s not as high as public defenders, [but they have a high caseload]. For the first few years, they don't know anything. They don't know the law, they just don't know anything…. That's why I really enjoyed when I came across judges that would challenge prosecutors, that challenged them to cite a case on the spot to support an action that they were trying to take against a defendant. Many of them couldn't, and those judges would make them go back to the office or make them come back after an adjournment with the information. I think once a prosecutor starts trying cases, because they have the burden to prove the case [on paper], that's when they really start learning the law….” Another Defender adds: “The misdemeanor prosecutors know nothing. Literally. The ones that have been around a while will know things. They’re a little better. Through trial and error, you’re going to pick up on things. But they’re not super well-versed in the nuances of [the law].”

A few Defenders offer a more positive take on prosecutorial knowledge of the law. One Defender answers: “I mean, it obviously varies on the experience; but I would say that the ones I normally interact with are pretty knowledgeable. They don't know as much on the bail reform laws as we do, but I imagine they'll catch up at some point. But generally, they seem pretty knowledgeable.” Another Defender shares similar sentiments: “I mean, with the senior prosecutors, they’re pretty good. They’re knowledgeable on procedural stuff. They’re okay, but I don’t think they’re better. Sometimes their analytical skills are questionable. But they don’t have a lot of work to do because the law is written in their favor.” Another Defender agrees, but added an important caveat: “Some are… I mean, they're knowledgeable; they're knowledgeable. Do they follow the law? Absolutely not. Do they respect mitigation and exculpatory evidence? Absolutely not.”

A few more responses:

Defender I think some of them are knowledgeable, but I believe the overall sentiment I receive is more of a crowd mentality. They're not taught to think on their feet or be creative. I think they often, at least at the entry level, are given scripts to follow; so when it comes to time to respond or react to something on the fly, they don't appear to have the capability to do it, or they're at least trained not to. So I find quite a bit of them are not that bright, which [makes me wonder], how did they get into the office? But that's the funny thing about law school: just because you’re book-smart doesn't mean that you are [bright].

Defender In the [borough where I practice], I am genuinely underwhelmed with the legal proficiency of most of the prosecutors…. I don't feel like they are encouraged the way that we are encouraged to really learn the law and to read cases and to grow their legal acumen. It's evidenced by how they train new ADAs in arraignments and in the all-purpose parts; [older ADAs just tell [new ADAs] what to say, and then [the newer ADAs] just say what they were just told.

It's so different. I mean, here you’ll have a defense attorney, a brand new defense attorney, standing on his own next to a client; and he or she is responsible for making all the arguments and [doing] all the things that they need to do for that client in that space at that time. And yes, there may be a supervisor sitting in the front row in case something unpredictable happens; but they've prepared themselves for that moment. Whereas [with prosecutors], they're just training them to regurgitate. So I'm unimpressed.

Now I will say there are exceptions to the rule; and I always tell people, “Listen, never underestimate them. You should never lose because you're less prepared than the ADA.” … Like when I hear people say, “Oh, it won't happen, because this ADA is a dummy,” that’s bad. We can't do that. We don't want to fall into that trap. We want to presume that our adversary knows as much as we do. But in practice, I've found that that is often not the case.

Defender Not very. I find that the reason why prosecutors end up surviving as long as they do is because they get help. [Let’s take] introducing evidence: that's their thing, right? That's not our thing. So if I was a prosecutor, I would have that script written everywhere I go, because one thing I'm not going to do is embarrass myself [by] not knowing how to introduce evidence. Yet time and time again, I will see judges help prosecutors finish up [saying the proper lingo so they can meet] their burden [to introduce evidence]. And I'm like, it's so crazy. You guys wouldn't help us do this shit. They help them meet their burden; [they help them] figure out what’s the last question they need to ask as far as introducing evidence. And I just look at the judge like, are you fucking kidding me? This is a prosecutor. He went to law school just like I did. If he can't introduce evidence, he doesn't need to be a prosecutor. Simple….

You have some prosecutors that will do the research and [will know the law]. There were a few prosecutors [that] I knew, based on the offer they were making, how strong of a case they thought it was, because they did their investigation; so I had enough to know [what to make of their cases]. Then you got others that just rely on the fact that they're a prosecutor; so the judges will correct any kind of flaw or mistake that they make. And it sucks, because a lot of times those [evidentiary] hearings come down to the burden [of proof]; and we get fucked because they just fixed it for the prosecutor.

Defender (Laughter) Oh, you got jokes today. (Author laughs) Okay.

I guess it depends on the level of experience; and even with that, they don't tend to be as knowledgeable as they should be. To some extent, I think that I could be substantially more knowledgeable than I am; but I'll pick up a book and find what I need to find and then go from there. But I think they kind of have a script with marching orders; and for some of them, it just allows them to think that that's the pillow or the cushion that they could rest on without going back and getting out the books and grabbing some more information.

But yeah, it ranges on experience and it ranges on whether or not [this borough] is their first stop in the DA's office or if they're coming from another DA's office with some semblance of experience.

How are the Black prosecutors in your borough? Why do you think they are as you described?

How racially diverse are district attorney offices in the five boroughs? As Defenders tell it, that depends. Some boroughs, like Brooklyn, have more diversity in the DA’s office than in public defense. One Defender observes: “I think it's fascinating to me how there are so many more Black prosecutors than Black defense attorneys.” Other boroughs, like Staten Island, are largely devoid of Black prosecutors. One Defender states: “I don’t recall any Black Staten Island prosecutors.” Another responds: “What Black prosecutors in the borough? They had a couple; they still have a few. One young lady heads up the sex trafficking unit in their office. There's an older gentleman, [but] I don't know what the hell he does. I don't see him in court. He's not one of the court assistants, and neither is the woman that I'm talking about, the bureau chief or whatever her division is. But in terms of Criminal Court, I don't think they have any. They may have one; I was in a video conference, and there was a young Black lady who was there. I've never seen her before. If she is a prosecutor, she's brand spanking new.”

Defenders offer a wide array of thoughts about Black prosecutors. Some note that many Black prosecutors had initially wanted to get into criminal defense, but they were unable to find a job there. One Defender shares: “There was one that was cool. he was okay. He wanted to be a defense attorney, but he couldn't get a job, so he went to the DA's office…. He's not there anymore, so I think he was just like, I'm trying to get this check, trying to just not be unemployed.” Another Defender notes: “I think many of them wanted to be defense attorneys but perhaps couldn't get jobs at the public defender. The ones that I've spoken to, many of them said they applied to [my public defense office] and didn't get hired, so they took that job. Many of them will leave the DA's office after a certain number of years and go into private practice or the [New York Department of Education] or do something different.” Adds another Defender: “My general premise is that a lot of Black people become prosecutors just because they need a job, not because they really believe in it. After a while, they get tired of putting Black people in jail.”

A number of Defenders also opine that Black prosecutors deal with a lot of indignities and racism in their respective offices. One Defender explains: “I think Black prosecutors in Manhattan have to do a lot of swallowing of racism and microaggression just to even be in the room. There’s no way you cannot, because of what we know about public defenders. Any office you go to, there is a lot of racist shit that these white people just do and say all the time. So you really have to swallow a lot of that to just exist. And I think that just does something to your insides….” Adds another Defender: “I think it's a heavy burden on them as well to be in the DA's office and to constantly prosecute people of color, especially at the beginning of their careers, on low level offenses; and to take stances and to be scrutinized and criticized by their white colleagues.” Another Defender states: “In Queens, I don't think they get a lot of opportunities. I think that a lot of them are afraid to speak up about certain things that they may not agree with; and the ones that I was friendlier with have since left; they’re like, ‘I can't do this anymore.’”

By contrast, many Defenders across the city view the Black attorney’s decision to become a prosecutor indefensible. One Defender states: “I just see them as lost and confused. Like, what are you doing? Get over here. Even if they try to be reasonable—there's been a few who [try to act like they get it]—it's like, whatever; you're a prosecutor, so don't try to act like you're going to give me this ACD because you get it. If you got it, you would not be a prosecutor.” One Defender has this to say about Black prosecutors: “Shameful. They’re lost. Completely lost. They are lost. (Author laughs) I mean, out of [all the] years of working and doing criminal defense work, I think I’ve met one Black prosecutor who I thought cared. One. Just one. They’re not there anymore.” Adds another Defender: “I find that there are a lot of Black male prosecutors who do it really because they want to start off their own defense business or something; they do it as this weird business path into being a private defense attorney. I think those people are vile as well, and I don't have some extra sympathy for them; but I see the reasons they're doing it.”

One Defender puts Black prosecutors into three categories, and his/her framing is worth adopting here: “I feel like there are three categories of Black prosecutors, at least that I've seen. There are some that are really like eager beavers. They really think that this is their way to make a difference in the system, and they really want to help out our clients. And those, I feel, get either disillusioned or sat on by their supervisors and aren't allowed to move....” Another Defender shares this view about younger Black prosecutors: “Younger Black prosecutors tend to be extremely reasonable…. I don't think many [Black] prosecutors stay in DA's offices for a very long time…. Most ADA’s that are Black leave.” Another Defender concurs: “A lot of the ones that stay for like 3 to 5 years, some of them can be fine; they’re ok. But they usually leave. You don’t see a lot of the Black prosecutors staying for more than 3 to 5 years, and 5 years being the higher end for sure. I think there’s a reason for that, obviously.” Adds another Defender: “I know quite a few that have left the prosecutor's office to become defense attorneys; and once they were gone, they were very vocal about what they thought they were going to do while there. Some thought, we can't change the system unless we're represented, unless we're there. Then they got there and were like, yeah, it doesn't work like that….”

Defenders comment on the vision Black prosecutors tend to have about changing the system from within. One Defender states: “They want to feel like they're doing the right thing…. But they feel that they can play a role on the inside and actually effectuate change in a meaningful way, and then they get there and they realize that there's 800 layers above them. They have no power when they're there…. I'll talk to a number of them and be like, ‘So when are you getting out of there? Clearly this is not the place that you need to be long-term, you know? You see how screwed up these cases are. You see the bullshit that you have to deal with. You're not doing anybody any good here.’” Adds another Defender: “You know how they always say, ‘Oh, but you know, we need people on both sides. You got to infiltrate, have that prosecutorial discretion; you've got to get in. And then once you prove yourself and they respect your opinion, then you can really start making change.’ First off, that's bullshit. How long is that going to take? How long will it take for them to decide that you are proving yourself sufficiently enough that they're going to listen to anything that you have to say? And then also by the time that happens, you don't think you're going to get jaded? You don't think you're going to see one defendant just like any other defendant? Sometimes I get jaded!”

The second category: “I feel like there are some who really seem to hate our clients; and they really spend a lot of time focusing on how different they are and how different their circumstances are than our clients and how they would've never ended up doing this or doing that and how [our clients’] lifestyle is not a justification for what they did....” One Defender concurs, stating that “some of them don't actually care or are unwilling to accept the struggles that Black people experience; and it shows in the way that they work through cases and how willing they are to cut your client a break.” Many Defenders note that Black prosecutors were “just like the white prosecutors.” One Defender states that the Black prosecutor was the “same thing. They don't seem to use common sense. I don't necessarily know if I felt as if I've had a Black prosecutor be [harsher] than a white person, like how they say for Black cops. I just feel like once again, they're wedded to whatever story they're given; and even when I show a deficiency or a problem, maybe they take it back to somebody but then they just come back and say, ‘Well, no, we still think [this happened.’”

Many Defenders also perceive Black prosecutors to be worse than prosecutors of other races. One Defender states: “Oh, they're the worst. They are the worst. I don't know what it is or what kind of trip they are on or what happened over there; but they're the worst. They're unkind.” Some Defenders notes that the longer the Black prosecutor stuck around, the worse they were likely to be. One Defender states: “The ones that have been there for a long time tend to be unreasonable and a lot of times worse than other prosecutors to deal with…. I think it takes a special type of prosecutor to stay in the DA's office because they want to do ‘justice.’ I think that that prosecutor of color is self-hating or has issues; and they tend to be really bad to deal with and very hard on our clients.” Another Defender thinks that “the ones who stay, who remain prosecutors—they're very few, because I think most Black prosecutors quit after three years or so—the ones who stay are sick. They want to punish their people…. They're the kind of kids who got beat up in their community or school; they obviously have issues, and they just sort of try to take it out on everybody.” Adds another Defender: “The ones that make it into felony practice tend to be the worst. The ones that stick around, absolutely awful human beings.”

The reasons why Black prosecutors are more punitive range. One Defender remarks: “I think sometimes, if they had any experience with the situation or the community, it made them more punitive because they were like, ‘Why? I got myself out, and I did this. I know people that had to deal with those same issues. Your client should have known better.’” Other Defenders explain that Black prosecutors seek the approval of their white colleagues and supervisors. One Defender notes: “I don't necessarily think they're the worst because they are bad people. I think they're the worst because they kind of have something to prove with the Queens DA's office.” Another Defender shares a similar sentiment about prosecutors in Manhattan: “By and large, I think the fact that they were Black motivated them to be more hardcore, because I suspect that they didn't want to appear to be the Black ADA that's being light on the Black and Brown ‘defendants.’ So they seem to be equally, if not more, hardcore than their non-Black counterparts.”

The third category: “Then I feel like you have some who are just kind of regular people. They're able to parse a case and look at a case, really taking into consideration that the police aren't always honest. They're willing to listen to what you have to say. They're kind of fair, they're decent, they’re real, they're the people that you would want as prosecutors. And of course by the same token though, that means that if they really do believe that someone has been victimized, they could go over overboard in that respect....” Here is an example of a seemingly reasonable Black prosecutor going overboard:

There was a case where I second sat one of the lawyers in my office. It was a gun possession charge. A Black prosecutor second-sat the lead prosecutor in the case. Our client testified, and it was her position that we put our client on to perjure himself. Meanwhile, the background of all of this is that during the prosecution’s direct case, there was something that one cop testified to. We had paperwork for the other cop, and it was diametrically opposed to what the one cop said. So someone's telling the truth and someone’s lying. This wasn't even like an “I don't like cops” thing, someone was lying and someone was telling the truth.

So during this trial, it got to the point where we made a whole long record in front of this judge who used to be a prosecutor about 30, 40 years ago—he is a bastard, to put it mildly. Really nasty. I mean, he doesn't yell and scream a lot, but he's all about fucking people as much as he possibly can—and it was our position that we were going to impeach this cop with all of this information that we had that establishes he's a liar. So the judge says to the cop, “Do you want a PBA lawyer appointed to represent you in this?” The cop was dumb as dirt and was just like, “No.” Then the judge put down his glasses down and asked again, slowly and sternly, “Do you want a PBA lawyer to represent you in this matter?” And the cop finally got the hint and said, “Oh yes, yes.” The cop wound up not testifying during the trial because he would have had to have taken the Fifth⁵ the entire time. So that's the background of her being upset about us putting on our client to “perjure himself.”

Now she may have believed the client lied. Fine, she’s certainly free to argue that during her summation, or to say there are doubts about the veracity of his version of events. But I thought it was outrageous for her to be so upset about the client's testimony. And I'm like, first of all, as an ethical matter, I wasn't there, you weren't there. You really don't know what happened. There's their version of events versus his version, you know? None of us really knows the truth of what happened, but his version is every bit as plausible as their bullshit version they presented, so give me a break.

So this guy winds up being acquitted, and this prosecutor got so upset when the guy was acquitted that there were court officers who had to calm her down. She yelled, “He should be in shackles!” I remember [that language]: “in shackles.” And I thought to myself, are you kidding me? A Black woman standing up in Supreme Court saying that a Black man should be in shackles instead of going free. I thought to myself, you’ve got to be kidding me. I can't believe that actually came out of your mouth.

The weird thing is that she wasn't the worst person to deal with. You could actually communicate with her, but she was still a very hardcore prosecutor. And I get it: they all work within a system, so I'm not expecting them to dismiss every case and that's the end of it. But I expected them to be a bit more open-minded. And there are certain things that are really good about having Black prosecutors around; I don't want a district attorney’s office that is completely white, because that would be really problematic. But Black prosecutors get co-opted by the system and I think it kind of consumes them. It’s sort of like with Black cops as well; it's like the same dynamic. I'm sure you can go against the grain; but how much can you, you know?

Another Defender states: “There are some lazy motherfuckers and there's some down-to-earth motherfuckers who work up their cases, who are willing to do right by our clients…. I've found myself educating some prosecutors because, [hey,] you're still my sister, even though you work in that job. So I'm not going to tell you how to do your job to hurt my client, but just so you can be held to a higher standard and reach those standards. Because I think it's important work that they're doing. It could be important work. So they should do it well and not fuck shit up….” Another Defender remarks that “for the most part, I can say I've always felt I could talk to a Black prosecutor differently [than I could] talk to a white one. I didn't necessarily get the ‘screw face’ or a reaction that says, what are you talking about? The arguments that I made were understood and comprehended. Now whether they've translated into a different outcome is a different question.”

Other responses and some anecdotes:

Defender I've heard a prosecutor talk outside of a courtroom about how he goes hard in [cases alleging domestic violence]. He described once having an uncooperative complainant and showing up to this woman's job to tell her that she will be subpoenaed to come in; and not only will she be subpoenaed to come in, but he might make it an issue with ACS because the allegations took place in front of her children. Could you imagine? And this was a Black ADA.

Defender I had a client who was charged with drunk driving. She was in an abusive relationship with her boyfriend at the time. She wasn’t even drunk, but she refused to blow into the machine because her father was a cop in Massachusetts and told her to never blow in the breathalyzer. But she wasn't drunk; she wasn't drinking.

On the body camera footage, she can be seen telling the cops that her boyfriend was beating her up in the car, and that’s why she swerved. The statement notice was that she was being assaulted. So I did a proffer with this prosecutor, who was a Black man. A Black man who, when he was a kid, had also been falsely accused of a crime, so he has a story. Now prosecutors pretend to be for victims; so my client tells him about her terrible relationship, the reason why she drove (her boyfriend being drunk), the boyfriend beating her inside the car while she was driving. She had wanted to take a cab home; he insisted on her driving and, in essence, forced her to drive. All of this comes out. Instead of getting a dismissal or an Adjournment in Contemplation of Dismissal (A.C.D.), the prosecutor just offers a plea to [the lowest type of drunk driving charge, Driving While Ability is Impaired.]

I thought it was absolutely shameful of that man to do. First, he was a Black man; second, he was a Black man who had been falsely accused of a crime that, as I understand it, was serious. He heard her pour her heart out; he listened to this young lady’s story of abuse, of physical and emotional abuse. And then he does not do the right thing. I mean, even assuming that she was drunk, what she described to him was duress…. But at the end of the day, he can go back to his supervisor and say, “Look what I got. Look at the offers I am making and the deals I’m getting.”

Defender Problematic. My general sense of the Black prosecutors in Manhattan was that they were constrained by the requirements of their job. I often thought that it has to be a mind boggle. To be a Black prosecutor in Manhattan—and anywhere, but we're talking Manhattan—and realize that everybody that you're prosecuting is Black, … I often wondered about what those ADAs told themselves at night when the day was over and how they were justifying their jobs for themselves and their loved ones. I think a lot of them slept just fine, because the ideology that leads one to become an ADA is usually one that doesn't find it troublesome that Black people are being imprisoned in large numbers….

Defender I was told that when you interview to become an ADA in Queens, if you’re Black, they would ask you, “Are you going to have a problem prosecuting your own? Because we can't have that.” (Author reacts) Yep. I can't say who said this, but I have it on good authority that they would ask, “You're Black, and a lot of clients that you're going to prosecute are Black. Do you have a problem prosecuting your own? Because if you have a problem with that, that's an issue.” That was a question that I was told was asked.

Defender For the most part, they're just like me; they're just on the other side. Every now and then, there's one that I just wish I could throw out a window. In my entire career, the only time I've ever hung up on a prosecutor was a Black dude. (Author reacts) I was like, man, if we were having this conversation face to face, this, this would've got bad. You know what drives me nuts? The era that I was raised in, the courthouse era, we just didn't have time to posture bullshit. There was too much work to do, too many things to get at. So everybody would be more straight shooters with each other; and those that weren't straight shooters stuck out. And now it's just so weird….

Defender So I have a general belief that if you're a Black prosecutor, you don't care about Black people in the system. I said the same thing about Black judges. We as Black people are the only ones that are going to be willing to give our people a chance that other races might not. I say this not to be mean; but by virtue of the system they are forced to operate in, where they have supervisors who don't give them the freedom to make the sort of plea or offer that they would want to, they are forced as [Black people] to go enslave their own Black brother or sister…. I think that's a horrible position to be in.

When I were applying for [and] interviewing for clinics [in law school], one of my friends, a Black male, was asked by a white male professor, “Why did you intern for the prosecutor's office? Why would you want to put your Black brothers and sisters in jail?” And I just feel like if a white man will ask you that to your face, you have to think about the position that you're in. (Author laughs) You have to think about the position you’re in. It definitely made him think about it; and he eventually became a public defender….

I just assume that if you're a Black prosecutor, you should be trying to give your people a break because your guilt should be eating you alive; but for the most part, I found that a lot of them just don't care and don't have any empathy for our clients. They are more interested in staying in their position and doing what they need to do to get where they want…. White prosecutors view it almost like a game, like, Oh, I'm gonna win this trial. I'm gonna beat this person down by any means necessary, even if I'm not sure or if there's reason to believe that this person may not be guilty. I think that Black prosecutors kind of fall into that same vein as well. There's no way to distance themselves from that; it just makes it worse, because they're Black.

FN 5: “Take the Fifth” or “plead the Fifth” is an expression that means that the person would exercise his or her Fifth Amendment right to refrain from self-incrimination and not answer a question that may inculpate himself or herself in a crime.

How much power do prosecutors have?

While recognizing the institutional power of judges, Defenders are in agreement that the prosecutor, not the judge, is the most powerful force in the judicial process. One Defender explains: “They are the most powerful people in the courtroom. They decide whether to charge. They have all the evidence. They decide, more or less, what you get and when you get it. That power has a big impact on the case. They can take a weak case and overcharge the client and get the client to take a plea. It is a practice in the District Attorney’s Office to overcharge people. They have tremendous influence over whether or not a client goes to jail by requesting bail, which judges usually set when they ask for it; and they can use that leverage to force a plea….” Another Defender answers: “All of it. They have all the power. They can make or break your case unless you have a judge willing to fight them; and that's where the limited judicial power I think comes in, if you have a judge willing to push his or her weight around. But even then—with the exception of trials, where a judge has more weight—on a day-to-day basis, prosecutors hold all the power. They just do.”

Defenders are also in agreement that the power prosecutors have is immense and too great. In response to the question, one Defender says, “Way too much.” Another Defender responds this way: “Too much. Too much. I think the immunity that they have [should be done away with], especially when it comes to wrongful convictions. When they suborn testimony by rogue cops [and do other unethical things], they should lose their immunity and their jobs, and they should be sued.” Another Defender notes: “As far as the office as a whole, they've got a lot of power. They control whether or not cases get prosecuted. They control how things get charged. They control whether or not they're going to charge something. They control the mandatory minimum; they control what the offer is going to be. They control so much; and the decision of how they want to prosecute a case just drastically changes everything.” Adds another Defender: “They have so much power. They have power from the [point of] writing a case up [before arraignment] to making an offer to requesting a specific sentence. They have power every step of the way, which is a problem….” Another Defender thinks that prosecutors “have way too much power. They kind of set the tone for how any one case is going to proceed through the criminal justice system. There needs to be a better check in that aspect.”

At the same time, Defenders note important nuances in parsing out the concept of “prosecutorial power.” The power is concentrated in the top brass within a district attorney’s office. One Defender explains: “When I talk [about their power], I'm saying “prosecutors” to mean the prosecutor's office, because individually prosecutors don't have any power because of the hierarchy…. I think generally, the prosecutor's office has an immense amount of power, particularly for less serious cases and cases that have a medium level of seriousness…. So yeah, I think they have a significant amount of power because so much rests on what that office decides to do.” Adds another Defender: “I mean, the bureau offices have all of the power, right? It's their case. They can dismiss, they can [decide to] not bring charges. They can reduce [the charges]. They can make any offer they want. As it trickles down, obviously low-level prosecutors have less power; but I think that if they have ethics and standards, they might push and do the right thing. That can be very powerful. So yeah, they have all the power; that just the nature of the office.”

By contrast, assistant line prosecutors have little autonomy and power. One Defender states: “The line prosecutors [have very little power. They] don't get to exercise that discretion to the extent that they may be so inclined…. They don't have discretion to make offers on cases until they are much more senior.” Another Defender agrees: “If you're talking about proceedings in court, I think they have a lot of power because, even though a judge may agree with a particular position that I may have as defense counsel, if the prosecutor doesn't agree then there's really no disposition. In terms of being a line assistant, a regular assistant district attorney, they have very little autonomy over their cases. They need a supervisor to approve whatever it is they want to do.” Adds another Defender: “I think line ADAs don't have a lot of power. They just go with the offers that are presented to them [by their supervisors]. When they become more senior, they have more leeway.” Another Defender concurs: “The prosecutor's office has a lot of power. These line ADAs do not have power. They can only make an offer if their supervisors approve.”

A few more responses:

Defender I think they have the majority of the power, because they can offer or not offer something that you and your client would be happy with, or feel is reasonable. When it comes to how much discretion they have after they're there for a few months or maybe a year, they have the discretion to pretty much do whatever. I've seen them use it and I've seen them withhold it.

Defender Definitely more than public defenders, I would say; but then also in a certain sense as much as we give them. If we don't fight hard enough, then they have more power. Unlike my feeling with judges, I do feel with the prosecution in some respects and in some matters we can take away their power. We can take away their power by going to trial. Obviously that has risks to it, but we definitely can. We can just take away some of their power by working harder and just being more diligent. So yeah, they have some power, but it can be taken away. In comparison to judges, they definitely have less.’

Defender Well, I think they have the most power of everyone in terms of the judicial system. The judges are really confined by the statute. When something's indicted or there's a charge, with plea negotiations, the judge can only do what he or she can do within the confines of the statute and the crime that the person's accused of. They can't go below the charge; the DAs can, but they don’t. They can dismiss cases. They can offer you a lesser plea. You can, with a good [ADA], work out a disposition on a case…. They can do a lot. They are much more powerful than I am. [They are] certainly more powerful than the judge when it comes to controlling what kind of charges and what kind of sentencing your client is facing. Judges don't like to contradict or go over the heads of prosecutors. They don't like to tell prosecutors, “No, I'm gonna do this.” I think they control who becomes a judge for the most part, and who stays a judge.

That's the most powerful person in the room, the prosecutor. Judges are very, very conscious of offending or becoming an adversary of the DA's office, or someone who they think is not on their side, or someone who is defense-oriented....

Defender I think they have a lot. I think there are two levels. There are individual prosecutors. On the individual prosecutor level, they still have a lot of power in the sense that they decide how they want to proceed on a case. If they truly wanted to, they could choose to not prosecute a case and let everything just 30.30 out;⁶ but that's just not something that they do…. I think on the lower level, as far as actual power to control the outcome in cases, they have it; but I think the structure of the district attorney's office is that if they decide to use it, they're not going to have a job for very long. But I think if they wanted to, they could actually do something until they got caught.

As far as the office as a whole, they've got a lot of power. They control whether or not cases get prosecuted. They control how things get charged. They control whether or not they're going to charge something. They control the mandatory minimum; they control what the offer is going to be. They control so much; and the decision of how they want to prosecute a case just drastically changes everything.

I had a case where the client was accused of throwing a trash barrel at a cop during the protests [in June 2020]. [It was] the same night that a cop got hit with a car. They charged gang assault [and a host of other charges;] they charged everything. We ended up getting in front of [this particular judge in Brooklyn]. Just based off the way that they charged the case, despite the fact that my client blurted out an alleged alibi, and despite the all the questions in their case—the client really didn’t have anything else going against him—the prosecution asked for a bunch of bail and a bunch of bail got set, which is just wild to me….

Realistically, a lot of times when judges are considering bail in a case, they're just going to anchor based off what the prosecutor says, and they're going to set bail. They'll just cut it off a little bit from what the prosecutor's asking for. [A judge just yesterday] basically just set bail at like 10 to 20% under what the prosecutor was asking for in pretty much every single case. Then there was a case where one of my colleagues was concerned, because she said, “Well, this is the type of case that [prosecutors] ask for bail on.” They decided not to ask for bail, and the judge didn't even blink an eye, despite the facts of that case or the allegations in that case being similar to other cases where the judge might have said bail.

So I do think that they have a lot of power….

Defender I think it depends on where they are. I think if you're talking about someone who's just coming into the office, not a lot. I think one of the biggest differences I've noticed between public defense and prosecution is that in public defense, we have the ability to make decisions on our cases without somebody really second guessing us. And that’s good and bad. The prosecutors don't have that ability. If they lose a case, it's my understanding that they have to justify that. They usually have to write—at least what I was told—they have to write a memo to their supervisors as to why they lost that trial, why they thought that this was not a case that could have been settled, and what they're going to do differently the next time around. And my understanding that if [a case ends based on a trial order of dismissal], it's even worse for them. So I don't think they have much latitude at all. (Author reacts) Yeah, that's what one of them told me.

Defender Too much power. Too much power, and not enough discretion, if that makes sense. At least in my borough, it has been my experience that individualized determinations on cases are not encouraged or rewarded. In fact, very much the opposite is true: there's punishment for prosecutors that try to make independent determinations when they feel like it's justified. That's across racial and gender lines.

I have had conversations with prosecutors, and I have seen prosecutors who are [punished for exercising discretion]. I'm thinking specifically about a prosecutor who was fired maybe one to three days before their last day because they made offers to dispose of their cases that they felt were appropriate; and instead of the office, knowing that this person was leaving, allowing this person to finish out their time, they terminated them.

I know that prosecutors have had sit-downs with supervisors if they're making offers that the supervisors feel are too lenient, even if it's warranted and mitigation supports it. [Prosecutors] that are on the bottom are given no ability to make offers and to have discretion at all, especially the first two years…. As they get a little bit further along, they have some; but even if a prosecutor feels like they want to make your client an offer, there are off-the-record conversations about how we're going to get creative to make things happen….

We have to beg and plead to get our clients any sort of disposition. I think that's probably one of the hardest things, the begging…. [In the heavier cases that I handle], my clients don't even want violations. I have clients that are like, “I don't wanna go to jail for the rest of my life. Can I at least get a flat bid?” My goodness. We're not even talking about not [going to] state prison. We're not even talking about not taking a felony. We're not even talking about having them go into programming and things of that nature. We're just really talking about [a client who’s like], I'm 60-something years old, and I do not wanna go [prison] for the rest of my life. [We have to beg].

Defender Way more than people realize. I mean, the law is the law, but the prosecutor is like the [gatekeeper] …. It's like when you go into any office: there's always the front desk. How you behave at that front desk determines if you get to talk to somebody behind the desk…. The prosecutors are that when it comes to the law; they determine at the onset what happens in terms of next steps. They're the gatekeepers. They have the ability to charge things up or charge things down…. They have the influence to decide guilt or innocence before it even reaches a jury. And if they have the ability to decide that, then this isn't really the system that the layperson think it's designed to be, which is, I'm innocent until I'm proven guilty; and then I go before a judge or I go before a jury. And even if that's not actually fair, I at least get to that step before that determination is made.

In my experience as a public defender in New York, that decision could be made when the police and the prosecutor put their two bits of information together. So the prosecutor and the police are, in my experience, the front desk. Now I think that the police are the henchmen of the prosecutors: when you're in the waiting area waiting to go to the desk and somebody is coming around to collect the clipboard from you, that's the police. Then the prosecutor makes a decision about whether you ever make it to the back or not; and the back is scary, but at least you make it back there. One person at a desk.

What would be interesting to me is these low-level prosecutors that just got to the office six months ago, and [they are] making decisions about the rest of this kid's life in a way that I, a seasoned criminal defense attorney, couldn't even make about my client or the “victim.” I'm just handling some sort of a defense to at least get me to the next step.

FN 6: Letting a case “30.30 out” means that the prosecution will state that they are not ready for trial and do nothing on the case until the allotted speedy trial timeline runs out, leading to the case's dismissal on statutory speedy trial grounds.

What role if any does your gender play in how prosecutors treat you?

Amongst the men who answer the question, there is a recognition that gender works to their advantage. One Defender explains: “I'm not sure. I think it depends on the prosecutor. There are prosecutors I could relate to because they're male, and there are prosecutors that I could flirt with because they're female, you know? So, I think it depends. I think gender tends to have an effect on your interactions with your adversary. I don't know how to quantify it, but I think that there's a difference based on sex.” Adds another Defender: “[As a man, I get treated better.] I’ve totally seen that. That is a thing. It's disgusting and it's unfortunate, and it happens…. I will be talking about a prosecutor and say, ‘Oh my goodness, I got this great offer from this prosecutor.’ And my [female] colleague will say, ‘What?! That guy's a dirt bag.’ So, that happens too.”

Amongst the women, some Defenders notice differences in how they are treated. One Defender notes: “I feel like white male prosecutors sometimes talk down to me because they think I'm dumb. White woman prosecutors get shrill and annoyed with me and sometimes overly familiar with me in ways where I'm like, I really don't know you. Black male prosecutors oftentimes flirt with me, which makes me uncomfortable. Black female prosecutors, it’s hit or miss. Sometimes they're mad cool. Sometimes they are something else. I think the talking down, the ‘honey's,’ the speaking to me as if I'm not a full attorney, as if I'm not somebody who graduated from law school and took the bar exam just like them... I think being a Black woman, there are a lot of assumptions made about me.” Another Defender concurs: “It's really hard to figure out which thing is motivating how they're acting. But I think very often when dealing with male prosecutors, it feels like they think that they can take certain liberties because you're a woman; and I've definitely felt that way…. I've had prosecutors that want to socialize, [that want to] hang out socially, when we're on the other side of the same case. That was always mindboggling to me…. [Some of the male prosecutors thought] it was acceptable to make overtures or make inappropriate comments because of my gender.”

A number of women speak about the “angry Black women” perceptions they get—and sometimes try to avoid—from prosecutors. One Defender notes: “I would say I don't know, but there's this thing about being an angry Black woman that I think a lot of white kids have. A lot of them are younger than me; and I feel like these white kids had this idea about these crazy Black women. I’ve had prosecutors call me up and tell me, ‘Oh, you better take this plea.’ I have to shut them down really quickly: ‘I don't have to take anything. First, you’re talking about my client, not me. Second, don't ever tell me what to take [or think you can talk to me like that].’ I had to have these really stern conversations and reprimand them, letting them know that I am not the one. I’ve even had to call a few of them and nail them to the wall before they back off. So there’s probably a reputation I have for not being one to hold my tongue.” Another Defender states: “I feel like I especially have to be nicer, like, more friendly, to not come off as the angry Black woman. I don't necessarily think that those things have changed. I think that now I'm a lot more comfortable in my own skin, saying like, ‘Come on, this is crap,’ or, ‘This is BS.’” Adds another Defender: “I have also been forceful at times about things, where I’m like, ‘That doesn’t make any sense,’ or ‘That’s not what the hell you said,’ or ‘You’re wrong,’ and then I’m made out to be the bitch. I have nothing to compare it with, because I’m only a woman. But I can assume that it certainly plays a role.”

Some Defenders play into these perceptions for the benefit of their clients. One Defender explains: “I sometimes think [playing to gender stereotypes] could work—I think it cuts both ways. I have tried to hit them with the ‘hey-girl’ thing if it’s a female, with varying degrees of success. And if it’s a male, I don’t flirt, but I certainly will play like the [docile woman, using my young hyper-feminine voice and say things like], ‘Oh, I don’t even understand,’ and ‘I can’t imagine.’ I’ll play into the [gender stereotypes].” Another Defender notes: “There’ve definitely been prosecutors that I’ve been able to manipulate because they were attracted to me. I’m not saying that to be arrogant or anything; I think that’s sexist. There’s some sexism at play with that. There are certain ones that are kind of notorious for that, being a little creepy and pervy.”

Other Defenders either do not notice sexist behavior from prosecutors or express less concern. One Defender states: “Hmm… I don't know. But really, I am literally an oblivious person. So if it plays a role, I am not aware because once again, this would require me to engage with somebody and I tend not to engage with the prosecutors. I'm not talking to them. So if they treat me better, or if they want to give me a better offer because I'm a female, I'm unaware of this. If they want to give me a worse offer because I'm a female, I'm unaware of all that. You have to pretty much say to me, ‘[My Name], I am doing this to you.’ [Then I’d be] like, oh, okay. Let me step back and see if you're correct. I don't really pay that much attention to people. I don't care about that.” Another Defender states: “I don't know if they [judge me based on gender]. I'm older, so that makes a difference. I'm trying to think if I can really feel that prosecutors have been dismissive of me because of my gender at some point in my career….” Another Defender noted that sexist treatment was “not the norm, though. I haven’t really felt like I’ve been treated any differently by prosecutors for my gender.” Another Defender gives this answer:

I don’t know. The legal profession is like, what, 50% women? Like I don't necessarily think that in criminal court women are looked down upon…. I've never worked in the private sector, so I don't know what women attorneys in the private sector feel about this; but I don't feel like we're looked down upon….

This one guy recently in the grand jury was trying to talk down to me; but I think, again, I don’t know if it's because I'm Black or because I'm a woman because he's just an asshole, you know? He is a guy that walks around with his chest puffed out and is like, “Ms. [My Name], why won't your client just plead guilty? Why won't he take this plea?” And I'm just like, what are you talking about? Like, just stop; he's testifying in the grand jury. That's it. And I waited around after my client testified; and the [ADA] came out and he's like, “The guy did good. They dismissed.” And I'm like, “Oh, great.” And he's like, “What can I say? Your guy testified more credibly than my CW.” So his tone changed; the bravado changed. He thought he was going to make me back down because I'm a woman or just because he felt like his case was so strong. I don't know.

But yeah, that happened very recently. And then I think somebody emailed around [our office saying] who it was, and then a lot of women said, “Oh, he's disrespectful to a lot of women.” Maybe he doesn't talk to men like that. I don't know, because that was my first time ever dealing with him. But, yeah, I get it. I don't care. Like people can be judgey or prejudiced or whatever; but at the end of the day, I know I'm doing what I do well. So I don’t give a fuck. That's really my answer: I don’t give a fuck.

A few more responses:

Defender I had a lot of problems with the white male prosecutors, but I’d have problems with [white men] whether they were prosecutors or judges or court officers. So I don't think it was specific to them being prosecutors. It's just that they were white men that had power, and I'm trying to get a deal.

Defender With male prosecutors who are a few years ahead of me—or it can be [just one] year ahead of me—but male prosecutors who's been around longer than me, they can be very condescending. With women, it's not necessarily an issue…. I've had a male prosecutor the other day say, “If you're unsure about this, you can ask this other [male] attorney about me, because I haven't had any issues with other people.” So they use that kind of rhetoric with me.

Defender I think just in general, they deal with men differently. I think that there is an old boys club that I don't get to go to the picnic on. I think that most men are kind of demeaning or will come hard and hope that you're not going to go hard back at them. And then it turns into this huge fight where it's like, you wouldn't have said this to me or talked to me the way that you talked to me if I were a man. There have been times when I've gotten into arguments with assistant district attorneys, and I'm like, “Yo, he would've never said that if I was a white man. He would've never said that if I was a man.”

Defender I think it depends on the prosecutor. I get a lot of really good offers [on my cases], and it's because of the relationship I have with a lot of bureau chiefs and supervisors [in the DA’s office]; and I'm also not scared to take things to trial. So I really can't say [that] my gender plays a role in that. Once you’ve kind of developed a certain reputation in [your borough], you kind of get what you want. So it's a little easier for me to call the bureau chiefs—a lot of the bureau chiefs are men—and say, “Hey, do you have time to talk?” And I don't really have a very combative or adversarial relationship with a lot of ADAs. I don't, because I think a lot of times, [being] adversarial works against us. So I'm friendly to a lot of the ADAs.

So I don't necessarily think gender for me is a big issue.

Defender I don't know…. I don't really pay attention to the interaction that I have with them as a Black female versus the interaction they may have with one of my Black male colleagues. So I don't know if overall it plays a role in how they choose to address me.

Defender Well, a lot of these prosecutors who don't know anything try to mansplain to me a lot, and that's annoying. And that still happens all the time. So I do think that these prosecutors and especially these white males look at me and think that they have to explain to me how to do my job. They also have no idea how to do my job.

What frustrates you most about prosecutors?

Some Defenders find the very existence of prosecutors frustrating. In response to the question, one Defender answers: “Their job. Their role in society. That’s the most frustrating thing, because I think there are a lot of good people in that office that are doing bad things. I'm sure there were lots of soldiers in Nazi death camps that were fine people, but their role in society was destructive. I feel the same about prosecutors: their role in society is destructive, is harmful, is counterproductive. So that would be the most frustrating thing about dealing with these people.” Answers another Defender: “That they’re prosecutors, that they’re prosecuting cases…. Yeah, I just don't like them. I just don't like what they stand for.” Another Defender responds this way: “That's hard. (Laughter) Their existence? Um…. Yeah, I mean, I think it's everything; and it's becoming bad, right? Like sometimes I don't even want to speak to them; I like to put everything in writing because I think they lie a lot.”

A number of Defenders list prosecutorial dishonesty as their biggest frustration. One Defender states: “How they lie! They just lie. I’ve gotten into fights with prosecutors on the record because they will say things that are literally not true. One time, I had a case where the prosecutor wanted my client to take a plea to a five-year-prison term for his alleged involvement in a fight, and they represented that their complainant was cooperative and wanted to move forward with the case if my client did not take the plea. Later on when they turned over discovery, I learned that they didn’t even know the phone number or address of the complainant, which means they didn’t know where the witness was.” Another Defender adds: “They hide evidence. They won't give you things. They won’t give you evidence in a timely manner; [they hide] evidence, not wanting to give you names of witnesses. We tried to do a ‘conflict check’⁷ a couple days ago when I was in arraignments, and I needed the names and birth dates of witnesses, defendants and complainants. They wouldn't give it up. They said, ‘Well, we're not willing to give this up at this point.’ So we couldn't do a proper conflict check.”

Other Defenders name prosecutorial narrowmindedness as their biggest frustration. One Defender states: “I think what I found most frustrating is that they are single-minded and solely focused on what they can prove. They’re like, ‘We think we can prove X; we can prove 1, 2, 3 and 4’; and they're not looking at the entire circumstances surrounding a case. And I'm not just talking about cases that are heading to trial and things like that. In most cases, there are mitigating factors involved that they really should be paying more attention to, and they don't.” Another Defender notes: “Their simple-mindedness and tunnel vision about people. ‘Oh, there’s good people and bad people,’ things like that. They think that when our clients do bad things, then something is wrong with them. They judge everybody else more harshly than themselves, because that's what they have to do.” Adds another Defender: “Their narrowmindedness. They think because a complainant said X, that that's the truth. Not realizing that complainants lie…. [You have a case where] your client needs treatment, not jail; and they'll just be so narrowminded, saying ‘I don't know; like this was, like, a really serious crime, and I don't think treatment's going to help.’ … They see things one way: it's black and white for them, and they don't see that huge shade of gray. And that's very frustrating for me because, when you're trying to be like, ‘This is the world we live in,’ well, it's not black and white. I'm trying to explain this to them, and they just can't see it. Either they don't want to see it, or they can't see it, I don't know. But like the narrowmindedness is [my biggest frustration.]”

Some Defenders point to the haughtiness and self-righteousness of prosecutors as their biggest issue. One Defender states: “Sometimes they have a God complex where it's them that stand between our clients and what our client actually needs versus just a conviction or some jail time or a fine. I often push for treatment, for programs, maybe for community service in order for our client to not have a record. And sometimes the prosecutors will plainly say, ‘No, he's gonna get a record behind this,’ or ‘No, he doesn't deserve treatment.’ I’ve tried to ask them to go into that a little more, and they’ll just say, ‘No, he doesn't deserve treatment.’ And it's just like, well, looking at my client's history of drug related arrests or crimes of poverty or things like that, what says that he doesn't deserve treatment? Why wouldn't he deserve treatment when that's probably what is causing him to continue to be arrested for the same types of issues?” Another Defender concurs: “They have this self-righteous attitude. They have no rehabilitative approach to justice. They're selective in who deserves justice, depending on who you are and where you're from. That's the frustrating part.”

Some Defenders identify the prosecutors’ “win-at-all-costs” attitude as their foremost frustration. One Defender explains: “Their overriding desire to win at all costs. I think that's the thing that frustrates me the most now. It's when they're not really concerned about doing what is right for the particular case and the particular client; they're not taking into consideration unique circumstances of a client. They just want to win the case because they want to advance in the office….” Another Defender agrees: “It often seems that they're willing to just go after convictions as opposed to doing the right thing. I've tried a good amount of cases where it did not have to get to that. I just had to embarrass the prosecutor at trial because they didn't want to be reasonable in making an offer.” With their focus on gaining convictions, one Defender succinctly notes his/her frustration: “That they don’t recognize that their role is to do justice.”

Other Defenders talk about prosecutorial overcharging, the practice of leveling excessive criminal charges against an accused person that the prosecutor either cannot prove at trial, is indifferent about, or has no intention of pursuing to conviction. Overcharging is a practice prosecutors use to induce guilty pleas. One Defender states: “No matter whatever they want to tell themselves, they know when something is not a fucking attempted murder. They know when something's not a [first-degree] burglary. But they try to exact the most crazy charge [if they can marshal] a set of facts. They know when somebody stole two shirts from the Gap that it's not a [real] burglary. They know that, and yet they charge the most that they can possibly charge just so that they can get someone in prison for longer. And they're okay with such an unethical, unjust, unfair way of doing [the job].” Another Defender states: “I think they need to stop overcharging. Something may be a simple assault, a misdemeanor assault; and it's going to be charged as a felony assault. Something may be a shoplift, a petit larceny; and it may end up being charged as a grand larceny or even [second-degree] robbery. They don’t have to do it this way….”

Another identified frustration is when prosecutors act like every case is the crime of the century and every prosecutor witness is completely honest. One Defender expresses: “They always think about the worst-case scenario; they act like all of our clients are serial murderers, or like the person is going to get out on bail and kill everybody. It’s ridiculous because statistically, those are very, very few. But they just have this very scary mentality and they're so deeply entrenched in that mentality, that identity, that they can't just fucking relax.” Another Defender states: “When they don’t know the worth of a case! And I have to tell them, ‘Your complaining witness is lying! You can't put her on the stand. I spoke to her myself; she’s clearly lying.’ …. Sometimes it’s just denseness or lack of life experience; [and they’re] like, ‘Why would somebody lie about something like this? Women don't lie.’ And I'm like, ‘Yes, they do. They lie all the time!’ So it's frustrating for me when they can't see things for what they really are. They only see what they want to see.” Another Defender remarks: “What frustrates me the most about prosecutors is that they believe police. That, and then that they could function within a system where they know that police lie…. That's what really frustrates me about them: they don't believe that law enforcement could be untruthful.”

Other frustrations include:

Defender They don't own up to the fact that they're making real choices about people’s lives with very real consequences. So they'll play games, like number games, which I think is so offensive. They're contemplating, “Well, maybe I can offer and ask for 5-7 [years in prison] and things like that” and I’m like, “You realize that these numbers, although you think you’re negotiating like they are dollar bills, is actual years that people will be spending incarcerated, right?" And incarceration is not like going to a luxury clubhouse. It is going to the pits of hell in this country, and they're talking about years in the pits of hell like a penny slot, like they're playing poker.

Defender The little autonomy they have over their cases. It's just very frustrating because every [conversation with them] ends with, “Well, I have to run it past my supervisor. I have to see if my supervisor approves.” And I think to myself, at what point do you get to make an independent decision, if this is YOUR case? And whereas we may agree on something, if their supervisor does not sign off on it, then it's insignificant how I and the assigned prosecutor may feel about this particular case.

Defender By and large, they’re just so clueless and reckless. I remember one specific case I had. It was a search warrant case. My client was in her seventies. She lived in the apartment that they raided, and because they found some paraphernalia in her apartment, maybe even in her bedroom, they actually arrested this old woman. She was a very old woman, she could barely walk by herself. She had a walker, and in fact I was able to get the judge to excuse her appearance because of it, because she really couldn’t walk that well.

I called the ADA, thinking he was a human, a normal human being, and I said, “Look, if you look at the search warrant materials they are referring to a male in his thirties. My client is seventy. She’s an old lady, she ain’t got nothing to do with this.” I think I was just asking for an ACD. He was trying to offer a violation at some point, but he also wanted community service. And I’m like, She’s seventy! And I didn’t think she should have to pay a surcharge, nor have to do anything whatsoever. I was just trying to get an ACD; and this man really turned around and said something to the effect of, “I know a lot of spry seventy-year-olds….”

It's also the clueless ones that are just like (mimicking in a whiny, nasal voice): “Oh, I don’t know, I gotta ask my supervisor, lemme check, umm….” I kinda feel like, if you believe in this, go to your supervisor and say, “Mr. So-and-So or Ms. So-and-So, I don’t find this case to be worth our time. We have bigger fish to fry. I think that an ACD is appropriate.” If you’re telling me that your supervisor’s gonna straight up be like “No,” I find that hard to believe. But I don’t think they even try. I think they just go and say (mimicking in small, whiny voice): “Oh, they’re asking for an ACD,” or they just say, “Well, what do you think we should do?” And then the supervisor says, “Do this,” and they come back and say no. So, they’re useless. All of them are completely useless, and you really have to make a whole lot of noise just to get the most basic, minimal modicum of decency from a lot of them. So I think that’s the most frustrating part. It’s just like, you are the assigned assistant district attorney in this case, why can’t you get anything done? Why do I have to climb this whole stepladder to get the most basic things done?

Defender What frustrates me most is when they don't give me what I want. It's pretty simple. Also frustrating is when they don't dismiss a case when they should [because they ran out of time to try the case], and they force you to write a 30.30 motion and then a reply motion.⁸ I hate that.

Defender Also, there's no cultural astuteness. If you can say in open court in 2017, 2018 that Golden Crust is a smoke shop, that to me is egregious. That’s egregious cultural dissonance. If you live in the five boroughs—even if you live outside of the five boroughs—everyone knows what a staple Golden Crust is in the Caribbean community.

Defender Their inability to see our clients.

Defender Their hypocrisy. They sit in judgment of people, and oftentimes what they're judging people on and throwing out as reasons to not make offers are things that I know factually they engage in themselves. When marijuana was a big arrest charge in [this borough], their stance drove me absolutely bonkers when it came to negotiating or having discussion. I know they themselves were heavy marijuana users, so there's a level of hypocrisy in judging people where somehow they remove themselves from the actions and behaviors that they themselves engage in. They are just not even willing to have a reasonable conversation or make reasonable offers; and I don't know how they flip the switch….

FN 7: A “conflict check” is a practice of checking court records and office records to see if representing a new client presents an ethical conflict of interest for a public defense office. For example, if a public defense office was representing Person A, who was charged with assaulting Person B, the office could not represent Person B if Person B was arrested and charged with a crime. Another public defense office, or an 18B attorney, would have to represent Person B. If the public defense office representing Person A conducted a conflict check, they would ascertain that Person B would represent a conflict client and they would not represent Person B.

FN 8: A “30.30 motion” is a motion to dismiss a case on the grounds that the prosecution failed to bring the case to trial within the statutorily specified timeframe. Defense attorneys familiar with New York practice colloquially call these motions “30.30” motions because the statute governing these timeframes is Criminal Procedure Law § 30.30.

Are there any prosecutors who treat white public defenders differently from how they treat Black defenders, including you?

Some Defenders report no difference between how prosecutors treat Black public defenders and white public defenders. One Defender states: “I mean, I haven't seen it, but I won't be surprised.” Another Defender answers: “I don't know. There are so many prosecutors in [the borough where I practice]. People are always naming people; I'm like, I don't know who the hell they are. I see them in court, but I don't know their names until we actually have a case together. Many times, now that we're zooming,⁹ I'll be like, oh, that's you. Okay. Like I've emailed you, I've spoken to you on the phone, but I didn't know who you were because I've never seen your face before. So I don't know any faces to names. I don't know. [My office] is huge.”

For Defenders that do observe a difference in treatment, the main difference is that prosecutors tend to be friendlier with white public defenders than with Black public defenders. One Defender thinks that “there's also a bro-like camaraderie that occurs between white male defense attorneys and white male prosecutors, and how they interact with each other.” Another Defender states: “Yes. They'll develop relationships with [white public defenders]. They seem to talk to them a little bit more; they seem to be able to relate to [white public defenders] a little bit easier.” Another Defender agrees: “I think they tend to be friendlier with white public defenders than with Black public defenders. They tend to do more things together after hours with white public defenders than Black public defenders or public defenders of color.” Concurs another: “The only thing I can say is that the white prosecutors and the white public defenders in our office were a lot more easy-going and laughy-jokey [with each other]. They all had a bar that they went to and hung out at and that kind of stuff. That's really all I can say.” One Defender answers: “Yes…. Sometimes I'm talking and I say, ‘Oh, I've had so many issues with this prosecutor,’ and a white colleague will say, ‘Really? I've had a different experience.’”

A few more responses and anecdotes:

Defender There’s definitely one prosecutor in particular I'm thinking of who told a supervisor of mine that he didn't want me to get a reputation for being aggressive. He was saying that I'm aggressive, and he was pulling on these angry Black woman tropes because I pointed out that he didn't make the correct record in court about something he was trying to then argue later. Like, it's not my fault that you don't know how to ask the question and wait for an answer from the witness; and the whole issue with that the prosecutor had asked a question, but had never gotten an answer. So, the fact the prosecutor was trying to prove technically wasn’t in evidence. I wasn’t rude at all; I just pointed it out, I think in a footnote. It wasn’t even the whole chunk of the argument. But this white man got very upset and talked to my supervisor. Like, really?

I also think there's a bro-like camaraderie that occurs between white male defense attorneys and white male prosecutors; [it shows in] how they interact with each other. I’m not a bro, so I don’t get to participate in that dynamic.

Defender Yes. I mentioned how [my white colleague] was aggressive and a complete asshole to prosecutors. That was his style. I don't really hear very many stories of someone reaching out to his supervisor or something like that….

I had a case where [there was a misidentification], and there was no way the prosecutor was going to ever be able to prove my client guilty beyond a reasonable doubt. We had done an identification procedure after the fact; and it was a white complainant that basically said all Black people look alike [and that he] can't tell Black people apart from each other. We sent the investigator with six different pictures of Black kids within my client's age range. One of the pictures—and this is just because I'm an asshole—one of them was a picture of me when I was my client’s age. (Author laughs) The complainant goes through them and says, “Might have been this kid; might have been that kid.” He put a “maybe” on my picture. When it came to my client's picture, he says an affirmative “No, that's not him.”

I'm like, there's no way they can prove a case against my client. My client was of that same mindset. There was not much harm for him going to trial because he's mandatory Y.O.¹⁰; and he's close to aging out of Y.O. so it's not as if he's even going to burn his Y.O. or anything. I didn’t think jailtime was likely at all for him. I talked to him about an ACD; he's like, “Yeah, ACD would be fine.”

[At some point,] the prosecutor had called me to see if my client wanted to resolve his case. I said, “Yeah, he’d resolve it if you want to give him an ACD.” She’s like, “Um, I don't think I can do that on this case; [the complainant] had a fractured jaw, blah, blah, blah….” I'm like, “Well, see if you can do that; and if you can do that, then I'll talk to my client about taking that. But that's kind of where we are.”

So she gets off the phone [and] apparently goes to her supervisor and is like, “This defense attorney asked me if his client can have an ACD on this case.” Immediately thereafter, [the supervisor] calls me—I had dealt with him on a case like a week or so prior, and I'm guessing he thought we were some sort of friends—and he tried to pressure me to convince my client to take a plea. At a certain point, I had to be like, “Look, I don't understand why we are having a conversation. Quite frankly, it seems like a waste of time. [The prosecutor and I] had a conversation, she made an offer, and I made a counteroffer. She said she's going to go see about the counteroffer. I don't understand what the purpose of our conversation is at this point.”

So that happens. [The supervisor] then calls fucking “Dennis,”¹¹ [my white colleague], and fucking complains about me to Dennis; and then fucking Dennis approaches me afterwards and is like, “Oh, just so you know, this guy hit me up. I have a good rapport with him. Apparently, he said that you were being aggressive or something like that.” (Author reacts) And I'm just like, you need to get the fuck out of my face. I don't think Dennis came at me on like some you-need-to-be-better-about-this type shit; but he was just sort of saying like, “This is what this person is saying, and I just want to keep you in the loop.” But I was like, [this supervisor] needs to get off my fucking case. This case is going nowhere.

Sure enough, eventually the case gets fucking dismissed. Part of me wanted to go back and be like, “Would've been nice to do that ACD at this stage, wouldn't it?” (Author laughs)

But there's this idea that when a Black attorney is being “aggressive,” the next logical step is to try to go above their head. [Mind you,] Dennis is not a supervisor. Dennis is not my supervisor. Dennis [does not even work in the same part of the office than I do.] I have no fucking connection with Dennis other than being a colleague. But there’s this idea that Black people need to fall in line…. I think it in part goes to what [that judge’s] idea when she basically called all the Black attorneys in [my section of the office] unruly…. There’s this idea that we need to keep people in line; and I think the supervisor in that situation saw a white man that, in his experience, had been in line, which is wild because it’s fucking Dennis….

So I do definitely think that there is different treatment for Black attorneys compared to white attorneys….

Defender I think sometimes they are intimidated by Black public defenders. I can tell when I talk to them on the phone, they're being extra careful or whatever. But then there are some who are just more disrespectful. But I don't know; that could just be who they are. They always have that attitude….

Defender Oh yeah. They namedrop the white public defenders that they're cool with and that they respect because I guess it's easier to be shooting the shit with someone when you look like them. For me, I don't really have anything to laugh about with [them], so they are just going to treat me differently. We're here to do our jobs. We're not necessarily going to be friends. We're not going to grab drinks together. But [they] also don't have to treat me differently because of that, because I'm not a white man or a white woman who maybe grew up on Long Island [with them] ….

I think [prosecutors] are scared of Black people; [it shows] even [in] the way some of them talk to me…. I had a prosecutor—oh my God, this was so bad—so I had a prosecutor [on a case of mine]. I was waiting and waiting and waiting for this prosecutor, this white, blonde, rich Republican girl from Florida or something, [to come to court]. She's terrible; she's been here five minutes, and she's already has a terrible reputation. So I'm waiting for her, because she just indicted my 16-year-old client on a misdemeanor to buy her some more trial time. (Author reacts) So our case has been adjourned for trial several times, and she hasn't been ready. Then all of a sudden, I'm here in court one day and I'm ready for trial; and then they come down with an indictment, on a misdemeanor. So they indicted the misdemeanor. So now instead of the regular 90-day clock, it's a six-month-clock. So that extended the case. So I got pissed off about that. (Author reacts)

But I didn't even find that part out yet. So I'm waiting for her; and I'm like, what the hell is taking so long? Again, this is the lack of respect for our time, because if the court was waiting on me, they would just call the case and adjourn it. So this one prosecutor said, “Oh, she's coming, she's coming.” I said, “Okay, I'm running outside really quick. If she comes, please don't let her leave.” He said something like, “Yeah, I'm gonna grab her and make her sit down.” I joked, “Yeah, tie her up. Make sure she doesn't leave.” Now obviously, this was a joke; I don’t expect the prosecutor to tie her up. So I leave.

Do you know that when the case was called, the prosecutor I was waiting for had her supervisor make a record that I threatened her? (Author reacts)

She had her supervisor make a record that I threatened her. So what I think happened—because there are always multiple ADAs in the part—I think me and that ADA made that joke, I think another ADA overheard that, told her, and then she obviously told that supervisor. So she didn't even get on the record; the supervisor made this long record about me threatening her and how any conversations should be had via email from now on. (Author reacts)

When I tell you I almost lost my shit, you have no clue …. To this day, when I see her name, something in me [burns up]. I've researched so much about that girl; she was president of the Republican club or whatever at Penn. She had like a fucking fairytale wedding like Jason Derulo. She was just filthy rich, [which of course begs the question]: why are you in New York City prosecuting people you know nothing about? But now I'm threatening you. Okay, girl….

It's funny, because that story got around the office, and this white male colleague came up to me and said, “I can't stand this girl. Me and her had a screaming match.” And I thought, oh, that's nice that you guys were actually able to scream at each other. I made an offhand joke to someone else; and after triple-quadruple hearsay, I threatened her.

Defender I feel like the experiences that I have had where they've treated white ones differently than Black ones are when we walk into court and we have to stand at the rail and ask for assistance from them to conference our cases. If it's a white [public defender, prosecutors] will jump up and run and get what they need; they’re like, “Hi, I'll be with you in a second.” If you're Black, they'll let you wait; they'll see you over there and they won't come to talk to you….

You know what it’s like? It's like going to the store as a Black person. [Going to the courtroom is a lot like going] to the store as a Black person. You are treated differently. You are given less attention and less respect. If you make a mistake or you forget something, it becomes something way deeper than it would be if you were a white person. And I think for [prosecutors], they'll treat you any kind of way, especially if you're a woman and especially if you're Black.

FN 9: During COVID, courts were virtual. This response was in reference to the Defender “appearing” in virtual court.

FN 10: Under certain circumstances, the judge must grant a youthful client Y.O. For example, a 17-year-old client with no record who is convicted of a misdemeanor is automatically granted Y.O. In this case, the client is mandatory Y.O. This is in contrast to discretionary Y.O., where a judge has discretion as to whether to grant a youth Y.O. or not. An example of discretionary Y.O. is where a youth has already received a Y.O. adjudication for a previous offense; in that situation, the judge can choose to grant Y.O. or choose to deny it.

FN 11: Pseudonym

How do prosecutors feel about your clients? Do they presume clients to be guilty?

In the main, Defenders think that prosecutors see their clients as less than human. One Defender states: “They don't see them as real humans. They don't see the consequences of incarceration as a real consequence. They think anyone who's arrested by the police is deserving of harm.” Another Defender concurs: “I think they view them as abstractions and not as actual people, so I think that's one of the major dangers in prosecuting people. The truth is when you think about the setup of Criminal and Supreme Court, you rarely have the actual prosecutor appearing on the case. You have these upfront parts where you have one prosecutor that deals with whatever number of cases are in the part that day and then they are gone. You have one prosecutor standing up just reading from some papers and saying what the offer was: ‘The offer is two-and-a-half to five [years in prison]. This defendant is [a predicate felon since they have] a prior drug sale, blah blah blah, and so they meet the requisite criteria for this type of sentence.’ The actual prosecutor doesn't really have to encounter them in any meaningful way throughout the duration of the case, so I don't know that the prosecutors really look at our clients as anything other than abstractions.” One Defender gives this answer:

Well, the word “scumbag” comes to mind a lot; or my favorite is, “My witness is a real person.” (Author reacts) Have you ever had that one? “My witness is a real person.” Your client is a person of color; but their witness is a real person, which is code for, “I have a white witness.” So they think that their white witness is more credible than your client. (Author reacts) They used to say that all the time. “I've got a real person for a witness,” which means white; and it's code for credible. It's code for credible, believable, white, middle-class and the like…. Because your client isn't a real person. What is it? What did the Constitution say? We were three-fifths of a person?¹² So we're still three-fifths, apparently.

One Defender expresses: “I feel like they feel like the clients are from another world or something. A lot of times I feel like they cannot feel or see their humanity, and it's extremely frustrating. Or they see their humanity, but in some kind of way that's different from them. They don't see their humanity like, this could be my family member, my sister, my brother, or somebody that I love. Not like that.” Another Defender opines: “I think prosecutors really do believe our clients are the scum of the earth; but I think it’s because they don't have the lived experiences.” Defenders report that prosecutors in the main despise their clients. One Defender answers: “They don't like them. I think they think they're all criminals and should go to jail or do some sort of community service to show remorse for jumping a freaking turnstile.” Adds another Defender: “Oh, they think some of them are trash. I've gotten into heated arguments with prosecutors when they say something personal about my client….”

In the same vein, Defenders report how prosecutors lack empathy for their clients. One Defender states: “I would say overall, they lack sympathy and even empathy towards our clients. For the most part, I think a lot of them are apathetic, but they try to put on extra because they feel like that's what their supervisors or the court expects from them. So they'll put on extra and be a little more difficult or shitty or whatever. And then some of them take it to the level where it kind of feels like, well damn, did they rob your house?! The fuck?! (Author laughs) But I would say there is a lack of empathy overall….” Remarks another Defender: “At least to me, it seems like they think they're playing a game and not realizing that this is a real-life situation for the people we're talking about.”

Prosecutors’ lack of regard for clients’ humanity manifests in their behavior. One Defender explains: “I was told by [a prosecutor] that they were trained and told not to look at our clients. And it's obvious sometimes, because they'll [do things like] saying ‘she’ when our client is obviously a male; and I’m like, you're clearly not looking over there to see who you're talking about. Or they'll refer to our client as young when they’re white haired and hunched over. And I'm like, are you even looking across to see who you're talking about? And it's obvious that they don't; they're taught not to. And that's part of their training, not to see our clients, because—I can't imagine, honestly—but I would like to think it would be hard to recommend or hard to suggest taking someone away from their families for five years, a decade, [or whatever length of time] if you really could look at them in the face.” A Defender offers a story that exemplifies this:

I had a case where my client was charged with felony assault for stabbing her boyfriend with a rat tail comb, with the pointy end. And the prosecutor asked for like fifty or a hundred thousand dollars [bail] or something like that. And the prosecutor was talking all this stuff about what my client did, and they’re just reading off the paper. They just read; they don't look around, they don't look at the client, they don’t look at their surroundings. They know nothing; they just read. So he finishes [his bail argument].

So then I say, “Your Honor, this is what really happened.” And then I proceeded to tell the judge what really happened, which was that her boyfriend’s child was shooting BB guns in the house, and she told him not to do that, because that’s dangerous; and then the son shot her by accident once. So when the child and her boyfriend went to the store later that day, she put the BB gun up. When they came back, the son said, “Where's my BB gun?” And she said, “Oh, I put it up. You shouldn't be playing around with that; that's dangerous.” The boyfriend gets mad and says, “Yo, where the fuck did you put my son's BB gun?! You need to get it or I'll whoop your ass. I'm gonna call my daughter to whoop your ass.”

Then the daughter shows up; but by that time, he already dragged my client all over the apartment. I mean, literally dragged her all over the apartment by her hair, and he's punching her in the face. The kid is sitting there, egging him on (author reacts); and she gets charged with endangering the welfare of a child! The kid is saying, “Yeah, Dad! Fuck her up Dad! Yeah, get her Dad! What, she stabbed you? You can stab her back!” and all of that. (Author reacts) And my client is the one who's charged.

So I say, “Your Honor, look at my client,” and she's this petite little woman, she was younger than me. She had cornrows in, and you can tell they were fresh. They weren't like old cornrows; you can tell they were kind of new. Three of the braids were lifting because when he grabbed her hair, he literally started to rip the cornrows out of her head. She had a cast on her wrist and a host of injuries, and I'm laying out all her injuries. I stated, “For the record, let the record reflect the cast on her wrist, the braids ripped out of her hair….”

And for the first time, the prosecutor looks over and was like, oh shit. He then says, “Your Honor, given what defense counsel has said, we're going to consent to this client’s release on her own recognizance.” It’s crazy because—and I definitely give him props for that, but he's one of the better prosecutors. I give him props for that because he didn't have to do that. It's the right thing to do, so he should have done it; but I know a lot of prosecutors who wouldn't have done it—but just a second ago, he was talking about my client like she was the spawn of Satan. And it was because he wasn’t looking past the first page of their ECAB sheet…. Like, maybe they should spend more time trying to figure out who was the aggressor in this case and what happened? They were all the way ready to make it seem like she came in here and just started fucking this dude up, when all you had to do was look at her! It was obvious that he dragged her.

Defenders are also in general agreement that prosecutors presume clients to be guilty. One Defender states: “Yes, they presume clients to be guilty. It is definitely exemplified by the use of language, whether we're talking about an indicted case, an unindicted case, a converted complaint¹³ or an unconverted complaint: ‘He's the shooter in this case.’ ‘He choked the complaining witness until she lost consciousness.’ ‘She stole four cans of formula and three packs of diapers.’ They make these statements from arraignment, from day one, without having done an investigation, just simply based on testimony of maybe a complaining witness.” Another Defender states: “[To prosecutors,] allegations and facts are the same. As long as it’s alleged, they believe them to be true.” Another Defender adds: “You see it in the way they talk. ‘Oh, but they did this.’ ‘Oh, but they did that.’ And I had to remind them, ‘it’s ‘allegedly.’ They allegedly did what they’re accused of.’ They act like they’ve proven their case already….” Another Defender remarks: “Oh, prosecutors think they're all guilty. They think they're all bad people. They think they're the scum of the earth. They just think that our clients can never do good or better.”

Defenders note how prosecutors presume clients to be guilty even in face of contrary evidence and questionable proof. One Defender explains: “I'm thinking of a case in particular where there are a lot of civilian witnesses and a lot of credibility issues. And when I say there are credibility issues, I mean that the stories that they tell not only in the grand jury are contradictory to [what is] on the body cameras, but they are contradictory to other [pieces of evidence in the case]. The witnesses have a lot of credibility issues, yet the state is still continuing to press forward with this prosecution [and is refusing] to have conversations about dispositions; and they continue to threaten my client with additional charges. Even though their witnesses have credibility issues and have been arrested themselves and have been incarcerated themselves for similar offenses…. So instead of saying, ‘There's a fly in the buttermilk; something's not quite right here,’ they continue to stand firm and [have this attitude of], we have a 90-something percent conviction rate….” The Defender then offers this anecdote:

I have another case with a kid [charged with robbery. He is accused of robbing another person of] a city bike. The police stop him within a very short period of time after the incident, and the serial number on the city bike possessed by my client was not the serial number for the city bike that the complaining witness rented. Do you think that they've made him even a misdemeanor offer or a violation offer? He's still charged with the felony.

This Brady disclosure was made over a year ago; and the judge is like, “Can we dispose of this case? Can we dispose of this case?” Dispose of this case how? You [as the prosecutor] have to prove a taking; you have to prove theft. The company which keeps the electronic records is telling you that the city bike that [my client] had is not the city bike that this one rented; so what would you [as the judge] like me to do in this situation? Force my client to take a plea to something he clearly didn't do?

Another Defender offers this anecdote:

I had a client who was accused of attempted murder. The complaining witness was basically in a coma. So the ADA tries to indict my client. Fortunately, the CW wakes up, looks at a photo array and he's like, “It's definitely not that guy. That guy's my barber.” ‘That guy’ is my client. Yet the entire time this case was pending, the ADA was like, “He's scum, he's scum.” Even after the case was dismissed, the ADA said, “I think we got it right the first time.” I’m like, “Well the CW certainly doesn’t, and he’s the one who caught the bullet.” (Author laughs) So I’m like, where is this hatred coming from?

Some Defenders do note that not all prosecutors despise their clients. States one Defender in answer to the question: “Oh, it ranges. There are a few ADA’s that actually have compassion because they haven't forgotten where they come from or situations in their own family. But other than those maybe five or six that I’ve dealt with, the rest of them have somewhere between disdain and outright hatred; and it doesn’t waiver, no matter what information you show.” Another Defender remarks: “Some of them like [our clients], some of them. Some of them are very heavy-handed depending on the allegations. Some are very [much all about] law and order. Then you have some that are like, ‘I wish I could do more, but my supervisor won't let me.’”

Other responses:

Defender Yes, [they presume clients to be guilty]. One time—I can think of so many examples—I had a particular client that got into an argument with his wife, and he said, “It was an argument; that's all it was.” I tell the prosecutor this, and the prosecutor's like, “Oh, come on, I'm sure something happened.” And I said, “Yeah, what happened was an argument. He didn't hit her.” And that's what I say about their reality; they are not in touch with reality. I said, “If you see me and my husband arguing on any given day of the week, are you going to arrest one of us? Have you never had a disagreement? And if you have had one, does it always result in an assault?” People can have disagreements and it doesn't necessarily mean that the cops need to get involved or that this is criminal activity.

I think that they just automatically assume, especially if somebody has gotten arrested before for something similar, regardless of how long ago it may have been, that they have a propensity to commit crime. Whatever it may be, however many years ago, there is that constant trying to wash away that stain of what the client’s rap sheet says.

Defender They're guilty. Automatically guilty. Let me give you a good example. If there’s a fair fight between two Black boys, and one of them loses their iPhone in the middle of that fight, they would charge the other kid with a robbery. Instead of it being deemed a fair one and somebody’s phone got destroyed or lost, they would charge my client with robbery. They don’t know about fair ones. With fair ones after school in the hood, you know if you’re going to get into a fight, you’re going to lose something; your jacket’s going to be torn. [Yet prosecutors] never heard of a fair fight. It just can’t be a group of kids fighting; it has to be a gang assault. And that shows how uninformed they are and how punitive they are….

Defender Fear, loathing and pity. Most of them fear our clients a lot, and they presume that our clients did what they're charged with and more…. The best example of that is the charging affidavits. When [clients] are charged, they're way overcharged. Some poor bastard is selling t-shirts; all of a sudden, you look up and he is charged with [third degree] burglary or something ridiculous. They way overcharge our clients….

Now remember I said [that prosecutors have] fear, loathing and pity [for and of our clients]. On the pity side, they still overcharge our clients because they want to control them. In other words, they want to put them in diversion or they want to put them in a situation where they can still control them. They pity them, but they want to control them. They figure, if I can control this person, then I may be able to make this person whole again. So there's that whole paternalistic, great-white-massa attitude, [a savior] who is going to step in and bring some order to all of this chaos….

Defender I once represented a female who had a background in prostitution, and she was accused of pimping out some other women. She had this open case, and then she got arrested a second time; it was alleged that she had arranged for two of her family members to be the sex workers. They were caught in this undercover sting. [I saw] the ADA in the hallway; and he hands me like 300 hours of Rikers calls, because she had gotten locked up for a while. He goes, “Here are the Rikers calls.” It's about 300 hours, and it's in Spanish. I'm like, “Well, can you tell me what you're planning to use if we go to trial?” And he is like, “No.” He then said, “Your client is a piece of trash.” I flipped out and started yelling at him in the hallway, and it was a whole big scene….

I can give you another example: the [first example] was a male prosecutor insulting my female client. I'm going to give you an example of a female prosecutor insulting my male client. The client is charged with indecent exposure; basically he was having sex in a car with a woman under [an] expressway. We are in front of [this particular judge]. The ADA said [something derogatory about my client]; I don't remember what word she used to talk about my client, but she basically said that my client was throwing this woman under the bus for his benefit and that he was some word I don't remember. I flipped out, and [the judge] forced me out of the well. She told me I was not allowed to have any more conversations with the prosecutor.

But you can't talk personally about our clients [like that]. You're a prosecutor, and you can say what you want to say behind your closed doors. We know you're going to do that. But you're supposed to be an assistant district attorney. You're supposed to be prosecuting a case. You're not supposed to be labeling our clients or using derogatory language about our clients; and I will never stand for that.

FN 12: A reference to the three-fifths clause of the original Constitution, which designated Black people as three-fifths of a person for purposes of congressional representation and electoral college representation.

FN 13: A “converted complaint” is a first-party misdemeanor complaint—a complaint drafted and signed by the person making the accusations. “unconverted complaint” is a third-party misdemeanor complaint, which is drafted by a third party that was informed by someone else.

Do prosecutors treat clients differently based on their race or gender?

Race Defenders are in agreement that prosecutors treat white clients—the few that Defenders have—far better than Black and Brown clients. One Defender states: “I definitely think that there's a huge difference, and I tell my clients all the time. I have one client that I picked up recently that was charged with a felony. He asked me, ‘How do you think this is gonna end?’ I said, ‘Well, you're white, so it will be favorable. You’ll be okay.’” Another Defender concurs: “I would joke about my white clients and be like, hey, I have a white client. I mean, it’s like the candy store; anything is possible. Even when they are obviously dope sick, they are white; so the world is open to that person. And the client knows it, you know? The client somehow knows how to show up and perform white supremacy in a way that is appealing to the judges, and even to the nonwhite judges. So there was a very big difference, in part because [white clients are] so rare, but also in part because these people are operating out of unexamined prejudice. They are operating with assumptions around the color of criminality.”

Advantages for white clients began at the arraignment stage. A Defender tells this story: “Once I had a white female client who was charged with felony assault, and felony assault on a cop at that. The prosecution consented to the client’s release on her own recognizance. They have almost always sought bail where the client charged with felony assault was Black. So I would say that white clients absolutely get treated better through the board—from arrest to dismissal or disposition—than Black clients.” Another Defender adds: “It's much easier to get a disposition for certain white clients. Russian clients, Albanian clients, [other white clients]; I just see they're getting offers. They're getting released. They're getting programs.” The offers white clients get generally tend to be superior to the offers made to similarly situated Black and Brown clients. One Defender explains: “Offers are better if they’re white. Litigation is minimal.” Another Defender concurs: “The offers will be different for white defendants…. Sometimes I use it to my advantage, you know? I know that because this [particular client] is white, they could probably get a better offer. So I'll push it, and a lot of times I'll get a better offer because the client is white. It’ll be less jail time, a shorter ceiling, things like that.” Here is one example of a client getting a better offer because of race:

I recently had this white kid [as a client]; and he was a nice kid. So were my Black clients, you know? [This client] had stolen credit cards, and he went to a hotel, charged it up, did all this stuff. The ADA assigned to it was kind of nice in general; he probably would've been nice with the Black client as well. But they have these guidelines [they’re supposed to follow]. So he said, “I can only offer him a felony.” I asked, “Why? No one was hurt. Can we just make this some sort of repleader,¹⁴ where he doesn't have a felony [in the end]? He said, “I can't do that. It was a lot of credit cards; it was fake IDs; it was a lot of stuff.”

On the day that he's supposed to take the plea, I ask again. He said, “Well, let me see if Sam¹⁵ will come down.” Sam is the deputy bureau chief. So Sam comes down, he literally just looks at the guy, and he says, “Okay.” He literally just looked at him. And the kid knew what it was about; he said, “It’s because I’m white, right?” He was shocked and happy…. That’s what the ADA said: “Sam just wants to look at him.” Meanwhile, I’ve brought in some of my favorite, nice clients to talk to that same deputy bureau chief; and he gave them horrible interviews, didn’t like them in the end, and would say, “No, I’m not offering them anything.”

Defenders report how white clients are advantaged in other ways as well. One example a Defender offers is in the ability of white clients to recover evidence seized by the police and held by the prosecutor: “I had a white client one time who had his phones seized during an arrest, and he wanted his phones back. I called the prosecutor to ask if I could get the phones back, and I never thought in a million years that she was going to say yes. But she's like, ‘Well, if he agrees or consents to having a search of the phones, we’ll give him his phones back.’ I can’t recall however many times I've asked for a phone back for my dozens of Black clients and the answer has just been, ‘No, not until the case is over.’ And even sometimes when the case is already over, it’s still a big deal getting prosecutors and police to [return property that has been seized].”

Underlying these favorable (and discriminatory) actions is a prosecutorial concern for white clients that doesn’t exist with Black and Brown clients. One Defender observes: “One of the most disturbing things I’ve seen—and this is true everywhere I practiced—is that the prosecutors will definitely see the humanity of white clients, much more so than Black clients or Brown clients. With white clients, their attitude is like, what's the problem? Why is he deviating from the norm?” Another Defender reports: “I've had prosecutors reach out to me on a white defendant's case and say something along the lines of, ‘Oh Mr. [My Name], I'm very concerned about this person. Their family's reaching out to me.’ And it's clear that that's just because this person is white.” One Defender gives this example:

Yes, for sure. I had a white client charged with [second-degree] burglary; [he was accused of] stealing packages out of a building. He had a record, [but no felony convictions] …. The ADA calls me up and says, “I'm calling to inquire about whether your client has any drug problems.” I'm like, why do you ask? We didn't even speak about this case. There's nothing in the statement notice and nothing in the complaint that would allude to that. Nothing that the client even told me that would allude to that.

The prosecutor said, “Well, I was just looking at the CJA sheet and I spoke to his father….” So he called his father. The ADA called my client's father to see if there was some sort of mitigation for this client so that he can help this client out…. I've had cases with this ADA before; I've never had [this ADA or any ADA ever] contact me and tell me that they called my client's family, or [ask me] if there is any way that this could be the result of some drug use. That's never been a thing for me. So I thought that was very strange; but I mean, it was obvious because the client was white. He felt some connection to him or some duty to help….

Finally, one Defender gives this response:

I've had two clients that I can remember who were Caucasian. Two. And how long have I been practicing? [Over ten] years. Two. So I don't know if I can answer that question. I can say both of those clients were charged with felonies, and they didn't have to do any state time. On one case, I got a misdemeanor and a program. I remember him. The other guy, I [think] he ended up getting a felony and probation, but he didn't get any jail time. They got sweet deals. I fought for them like I would fight for any of my clients; and it’s just hard to [say race played a role], because I've gotten some “sweet deals” for some of my African American and Spanish clients as well….

To me, the more important point is that I've had two in [over ten] years. Where are the white folks at? They got a different jail house or something? It's just crazy.

Gender In the main, Defenders also observe that male clients are treated harsher than female clients. One Defender states: “With male clients, it is always easy for them to say ‘jail.’” Two other Defenders concur: “There’s more sympathy and more willingness to give better offers [to a female defendant] than they would to a male defendant for doing the same thing.” “I feel like for females … versus males, I do think it’s a little bit more leniency that they’ll show for a female than they will for a male.” Some Defenders add caveats: “Generally, prosecutors have more sympathy for females in the system than males. I don’t have any female clients in jail right now; I have lots of male clients in jail. But I've also seen terrible things done to women that are charged with crimes.” “They are more sympathetic to women than men. However, I think they tend to be a lot harder on the women if they’re charged with anything against children.” “I think male prosecutors tend to treat female defendants a little bit more kindly. I think female prosecutors tend to treat female defendants a little bit more harshly.”

A few Defenders notice little to no difference in treatment based on gender. In response to the question, one Defender states: “I don’t think so.” Another Defender responds: “I think there's more of a difference in socioeconomic status and race. I would say race to me played more of a role.” Adds another Defender: “Slight difference, but nothing to the level of how the judges treat them differently.”

One Defender gives this answer:

Oh, yeah. Yes, yes, yes, yes. It’s rare that women get [vigorously prosecuted]. I’m sure the statistics play out this way, but my specific statistics [show me that] a woman’s case can get dismissed way quicker than a man’s case, if it even gets brought. I have this case right now where my client and his girlfriend made the exact same move. It’s an attempted murder, and it’s actually a total bullshit case. But they went together, they came together, they sat together. They did all the exact same things, but the prosecution [dropped] her case and only charged him. I have so many examples.

The only times I've had them go really hard on my women clients have been in really strange circumstances. I think it’s a combination of an ADA that sucks with a charge they find personally offensive. That is the only time that I've had them go really hard. I had a client one time [whose case] we actually went to trial [on] twice; it was overturned on appeal, because the judge was racist. He allowed the prosecutor to introduce through questioning that [our client] was on welfare, over our objection. We obviously objected; it had nothing to do with this case whatsoever. And [the judge is] like, “Well, I think [the jury] can take into consideration that she's getting funding by the state.” It was so reversible and crazy. He also said a lot of other crazy racist shit….

[Anyhow, the prosecution went hard on this case because] my client was a former corrections officer. She went to go visit a boyfriend in jail, and there was a knife inside of a shoebox. People called it my knife-in-a-shoebox case. Everyone was just like, “Well, how did the knife get there?” She said that the knife was already in the box when she went to get it. But it's too coincidental that you're going into a jail and there's a knife in the shoe box. Further, the tracking was correct; her receipt showed that she came straight from the store [where the knife was bought] to the jail….

So yeah, it's like if they find something offensive about the case, [then they will go hard]; but I've had very few cases where they [went hard on women]. Even that client; she went to trial because she wanted to go to trial. They offered her essentially a non-jail sentence; they give so much better offers to women.

I just had a client who stabbed her best friend I don't know how many times; [it happened] on video. [The prosecution] offered her probation. My male client would not have gotten that offer, period. [So female clients] get better offers….

FN 14: A “repleader” is a particular kind of plea in which a person conditionally pleads to a crime and, if that person completes certain conditions within a specified time frame, that person can withdraw his or her plea to that crime and either plead to a lesser crime or a non-criminal offense. For example, a person might plead to a felony and, upon completion of the specified conditions, will replead to a misdemeanor; or a person who pleads to a misdemeanor and completes the conditions will replead to a violation. If, however, the person fails to complete the specified conditions, that person's plea to the more serious offense will remain, and the person will be subject to a more severe sentence than the sentence he or she would have received had the conditions been satisfied.

FN 15: Pseudonym

How often do prosecutors: A) hide evidence? B) try to coerce you to have your client accept a particular disposition? C) prosecute cases where it is clear that your client is innocent?

For these questions, Defenders were offered suggested ranges and answered either in accordance with those suggestions or with similar answers. The question was phrased: “How often do prosecutors do the following? You can say sometimes, always, never, or whatever phrase comes to mind.”

Hide Evidence The most common Defender answers to this question are “often” and “always,” with “often” being the most common of all. Some Defenders answer: “Very often.” One Defender responds: “Frequently.” Some Defenders state that prosecutors “sometimes” hide evidence. One such Defender explains: “Now, I would say sometimes; but before the new discovery laws, it was pretty often. Before trial, it was often; they would never turn over certain key things until it was the eve of trial. As a matter of fact, I would say always, just about always. But now with the new laws, I'm getting more things up front. So I’d say sometimes.” One Defender states: “Rarely. More so, they probably didn’t even look at it.” Some Defenders aren’t sure and give more nuanced answers. One Defender elaborates: “Well, what's baked into the question is that it is a difficult one to ask if it's hidden. So I don't think you can know the true answer to that, but it happens enough. I'd say now it's harder because you have these automatic rules. I'm not going to say that it's something that I suspect happens commonly in my experience. It's not common to me, but it has happened enough that it is a problem. So, sometimes.”

One Defender shares this anecdote:

I don't really know, to be honest with you. They probably do it more than I would like to admit. [I remember] I was second seating this trial with a colleague of mine. We subpoenaed some student disciplinary records from a school. Our client was a mother charged with going up to the school and assaulting a child. It was a horrible case. She definitely beat this girl's ass in the lunchroom, and it was on video and audio. It was a whole setup, and we had all the video. I said, “Girl, you're about to go down for this misdemeanor, pregnant and all.” But we ended up getting, I think, an ACD or a violation and some anger management classes or something like that, because the prosecutor's office [acted a fool].

We subpoenaed these disciplinary records for the complaining witnesses, and the school first didn't provide them. So then [my colleague] did a demand letter. The school got scared, so they brought them to the courtroom on the day of trial. We walked into the courtroom and saw the school administrator talking to the prosecutor's office and going over these documents when they were supposed to be returned to the court. Then when we went before the judge, the prosecutors got up there and were telling her what documents she should turn over to the defense. It pissed off [the] judge, because it was crazy that they would first of all intercept the subpoena materials, and then [second would] review the materials, and then [third would] attempt to tell the court what they think should be given to the defense.

So that was crazy. I mean, that's not like hiding evidence, but there is some deception and errors that tend to hide something. The whole thing was weird; the school didn't turn over the records; and then when they did, they were obviously working the prosecutor's office…. We could say those were just two corrupt prosecutors—and they were terrible prosecutors; they had [terrible] reputations before this happened—but it doesn't surprise me that it did happen. They probably don't turn it over more than I know, or more than I would be inclined to think.

Coercion The most common Defender answer to this question is some variation of “always.” One Defender answers the question as follows: “For cases that are going to trial, every single time. I’ve also had that from judges.” A number of Defenders state: “Very often.” A couple of Defenders state that it happens “often.” A few Defenders have different experiences and perspectives. One Defender answers: “Not that much. I mean, there are maybe two prosecutors I know who would habitually do that. They would say, ‘Oh, I have this evidence, I have that evidence. I have this, so it's only gonna get worse if he goes to trial.’ It never does get worse. They make the same offer over and over again.” Another Defender gives this take: “Well, when you say ‘coerce,’ you're saying things like [where the prosecutor says,] ‘Take this deal now or I'm going into the grand jury,’ like that happens. The thing is the word ‘coerce’ makes it a bit difficult because sometimes it's a legitimate offer that your client should consider; and if they don't, they're going to lose the offer because the case is indicted and then they are without authority to remake that offer based on statutory rules or based on office policy…. So somewhere between rarely and sometimes.”

A few other responses:

Defender Oh, all the time. (Chuckles humorlessly). All the time. I think the only time they don’t is when they feel like they have the most rock-solid case. Then they don’t care. They’re like, “Ok, he won’t accept this plea? We are not giving him a plea offer. We’re gonna take him down.” But if it’s something that is not that clear, or where it’s a situation, particularly with domestic violence, where it’s he say/she say, they’re always trying to shove a plea down your throat. And then they try to sweeten it by asking, “Well, what if we do this?” “Well, what if they only did two days of community service instead of three?” I’m like, “Or, what if we just dismiss this shit?”

Defender Between often and always. They're always trying to tell you that this is the offer, and this is what I can do to him if he goes to trial. So, it's between often and always. They’ll say, “This is the last time I'm gonna make this offer,” or “There are other charges or cases that we can bring if you don’t take this.”

Clear Innocence Again, the most common response Defenders give to this question, although perhaps to a lesser degree than the previous question, is “always.” A number of Defenders also state “often.” One Defender explains: “I’ve heard just horrendous stories. I had a colleague on trial who lost the trial. He knew his client was innocent. Everybody knew it. But he lost the trial anyways. It was just a really sad and unfortunate moment. And the ADA comes up to him after the trial and said, ‘Nice job counselor. I just wish the client was actually guilty.’” Some Defenders find less frequency in how often prosecutors went after clearly innocent clients. Answers one Defender: “I would say sometimes, but I'm not saying that from my personal experience; this is because of the stories that I've heard…. Well, you know what? Nope, that's not true. I have had at least one case where they had gotten an indictment, and it was very clear that [my client] was innocent.”

Some Defenders have difficulty with the “clearly” portion of “clearly innocent.” One Defender states: “Clear my client is innocent? I don't know. I mean, I may have had one or two cases—and forgive me, because my memory is, I know, not that great—and I don't remember… The ‘clearly’ part [of the question] is the part that's kind of giving me pause, because I don't know how clear it is to [prosecutors] that they're innocent.” Another Defender concurs: “That’s a little hard, because what’s clear to us is [often] not clear to them. I would go with somewhere between sometimes and often.” Answers another Defender: “Innocence and guilt, I've got a difficult time with those concepts. There's no such thing as obviously innocent or obviously guilty, so I'm not going to saddle them with that. I would say there are many times they don't look at the evidence objectively [where] an objective look at the evidence certainly leans towards innocence. That happens a lot. But I'm not going to say that they prosecute people who are obviously innocent. I don't think they do that. They certainly don't purposefully do that.”

Other responses:

Defender Far too often. I tried an attempted murder case with my senior colleague as the lead counsel. This case was about a shooting that was caught on camera. The prosecution called 18 witnesses, one of which was a woman who was high on crack and heroin and drunk at the time. She also had audio and visual hallucinations and had been hospitalized numerous times for that. She caught a felony drug charge about six months after the shooting had happened and then gave our client’s name as the shooter. We called one witness: the guy who got shot. He took the stand and was very clear that our client did not shoot him. The prosecutor knew all of this, but they still prosecuted him because he was the witness on a prior shooting and did not cooperate in the past.

That’s just one case. I had another case, a bench trial which I won, where my client was ultimately tried for disorderly conduct. My client was a roadside assistance worker working on another person’s Corvette, a nice-looking car. The cops pulled up and said he was stealing the car, and they beat him up and then arrested him for resisting arrest and disorderly conduct. The prosecution only tried him for disorderly conduct [because, by getting rid of the resisting charge, they can deny my client a jury trial and force him to submit to a bench trial.]¹⁶ The cops lied through their teeth throughout the trial. My client took the stand and cried describing what he had been through: they beat him up at the scene, and they beat him up in the precinct. The prosecutor knew all of this. The supervising ADA that sat with him during trial said to my supervisor, “This is a great learning experience for everybody but your client.” My supervisor just looked at him like he was insane.

The hardest thing that I've come to terms with in doing this job is that I represent way more innocent people than I'm comfortable with. I had a forcible touching case that I took to trial where the cops were following my client for three whole hours. They approached three different women. The first one, they say, “We saw what happened to you. Are you OK?” She’s like, “Nothing happened to me. I wasn't touched.” The second woman, same thing: “We saw what happened to you? Are you OK?” “Nothing happened to me. I wasn't touched.” The third one was a 15-year-old girl; she wound up giving a statement saying that she thought she felt something, but then nothing. We took this case to trial, and my client lost. He’s a sex offender for the rest of his life now. He was innocent. He had no prior sex offense cases. The 15-year-old testified to a [completely] different set of claims. My client could not have been more innocent. Yet he was convicted, and the judge designated my client a Level 2 sex offender instead of a Level 1 because—in the judge’s words—my client didn't take responsibility of the crime because we took it to trial.

Once again, I have represented more people than I am comfortable with that were demonstratively innocent. I had a client charged with a felony where the footage completely contradicted what the prosecution’s witnesses had said. The prosecutor dropped the charges and re-indicted under a theory that would be consistent with the video footage. There are plenty of stories just like that. I mean, this is crazy. It’s fucking crazy. Yes, I represented guilty people, sure. But I’ve had way too high of a percentage of my clients that are innocent. And nothing is going to happen to any of these prosecutors. They’re not going to be punished by the bar. They're not going to get punished through their fucking office, because their office encourages this type of stuff.

Defender The cases that I can recall where my client was innocent [were due to things like] there [being] an error at the DMV, which the prosecutor's office doesn't know that the DMV mixed up my client until I tell them. Or the case where a girlfriend makes a false allegation against a boyfriend, and through my conversations and investigation I realized that this is just false and she's mad, or she's the unstable one. I don't know that they know that before they prosecute a case. Also, if someone makes a complaint, they have a duty to investigate; and often these things come down to he-said-she-said. So I can't say that I've experienced a situation where they have prosecuted a case where my client is clearly innocent.

Defender That happens I'm going to say often because— see, it's a little tricky to really nail this down. What I'll say is that it happens enough, but [sometimes] what's clear to me may not be clear to them. But there have been times where something [obvious] was going on with the complaining witness and several prosecutors just would not listen.

This one case, this client of mine got arrested three times in a two-year period for contempt. The underlying [case and] order of protection stemmed out of another county. The protected party would have the client arrested over and over and over again. My client was so spooked that he started keeping a journal of his comings and goings. He started taking pictures of parking receipts and everything to try and establish where he was at certain times. Then we got cell site records, and they were showing that my client's cell phone was in Queens and the person was saying, “He's at my place of employment [in Manhattan], banging on the door.” There would be 9-1-1 calls, the [complainant] would be distraught, etc. It turned out that the [complainant] had serious psychological issues. Yet my client kept getting arrested. At first, these were misdemeanors. Because so many of them had happened over so many years, it ended up being indicted as a felony.

We were getting ready to go to trial, and I kept telling the ADA, “You need to look at this complainant.” Eventually, they realized something was off and they did look at her mental health history. When that ADA told me about the problems with the complainant as to why they were dismissing the case, I’m thinking, you don’t say! I was not sarcastic in my response though, but I think they are often just wired to believe a complainant as long as they are not saying that they are God or something like that. If what they say is plausible on first blush, they are happy to prosecute my client and try to deliver what they call justice….

Defender Often. They will prosecute a case and they will know that someone is innocent; and instead of dismissing it, they will make a low offer. It may not have any jail time. They may go from a felony to a misdemeanor, from a felony to a violation; but they know the case is not a case that they should be prosecuting. And they will still try to get some kind of a disposition so that they have a record of some type of conviction or a disposition that's against our client, even when they know they can't go forward on them. And that's often.

Defender Does that include overcharged cases? Like they committed a larceny, but they were charged with a grand larceny [instead]? Because that's a form of innocence that I think is pretty much overlooked. Like they can say, “Well, they stole the Walkman, but”—Walkman, I'm from the eighties (author laughs)—“but I’m charging them with robbery, because the facts can fit a robbery.” So are they innocent? Did they commit a petit larceny? Yes. Did they commit a robbery or attempted murder? No.

So I'd say overcharging happens often….

Defender

Oh, I have a doozy. I had a case where my client was originally charged with a misdemeanor for a scuffle he had with his co-worker at the place where they work, which is a hotel. The prosecutor sneakily indicted the guy. They didn't give me a heads-up or anything like that. Suddenly, my client got a notice that he'd been indicted, and they've bumped the charges up to second-degree assault. This complaining witness is alleging that my client hit him with a walkie talkie and bashed him in his face with a walkie talkie. My client says that the complaining witness picked up a piece of equipment and try to hit my client with it, and he pushed the piece of equipment back on the guy and it hit him in the face….

There is body worn camera footage; there are like a billion officers and EMT. You hear the EMT workers say multiple times, “This guy did not get the injury the way he said he did.” All the cops on the scene are like, “This guy is fucking lying; there's no way he got hurt this way.” They get the walkie talkie and they're like, there's no blood on this walkie talkie. No one believes this is how he got injured. And there is actual blood on the piece of equipment that the complaining witness tried to hit my client with.

The ADA hadn't reviewed any of his evidence. He just sent it to me. I talked to him about it, and I said, “Why are you doing this? None of your witnesses that you will call believe your guy. The evidence supports my guy. Like, what are you talking about?” And he still prosecuted. He still went hard. We were set for trial, and he kept stating that he was not ready for trial. He kept playing these games. I filed a speedy trial motion, and he tried to blame me for his non-readiness. He said, “I gave defense counsel an offer, so we weren't ready on such-and-such date because we wanted to give them time to think about it.” I was like, I told you that my client is only interested in a dismissal, and the offer you made me wasn’t a dismissal…. This is not my fault. Although you made an offer, you still have to do your fucking job and be ready for trial. And so there was all this other drama. The judge granted my speedy trial motion, and then he filed a motion to re-argue. He was not letting it go.

Mind you, my client's last arrest was before either one of us (you or I) was born, and it's all been for drugs. He had been sober since his last case, and he maintained his sobriety from when he was released in the eighties up until now. And he maintained his sobriety through his daughter's death. She died by suicide a couple of years ago. She had a son, and my client is caring for that son. He is the sole caretaker for his grandson. He works two jobs. He got fired from one of his jobs because of this incident. He got another job almost immediately, but this case was keeping him up at night. He was tortured by this. And he kept saying, “Why are they doing this to me? Why did they want to send me to prison?” Because that was the initial offer: just upstate prison time. We would have conversations, and he would just be crying. And it was threatening his sobriety. And he had maintained sobriety through his daughter's suicide.

The prosecutor just didn't fucking care. Like, did he want trial experience? Did he want to feel like he was this little gunner prosecutor? He did not care what was happening to my client. My client was the loveliest and sweetest man.

FN 16: There are two classes of misdemeanors in New York: class A misdemeanors, and class B misdemeanors. A person convicted of a class A misdemeanor faces up to one year in jail; a person convicted of a class B misdemeanor faces up to three months in jail. New York City is the only part of New York where a person being prosecuted for a class B misdemeanor is not entitled to a jury trial. Thus, in some cases, and in certain jurisdictions more than others, prosecutors proceeding to trial on a class A misdemeanor will often reduce the charge to a class B misdemeanor to deprive clients of a jury trial. Bench trials—trials in which the judge decides guilt or innocence instead of a jury—tend to favor prosecutors for all the reasons enunciated in the previous chapter.

What is the relationship between prosecutors and police?

Defenders find the relationship between prosecutors and police to be rather close. One Defender describes the relationship as “cozy.” Another Defender states: “I’ve never heard or seen a prosecutor say, ‘I think that cop’s lying.’ They just don’t scrutinize them that much.” Other Defenders give similar answers: “They’re thick as thieves.” “They’re like besties. That’s the best way I can put it.” “They are buddies.” “I think they have a very symbiotic relationship that only does them good. It's unhealthy for the clients and the society, but it's symbiotic for them.” “They work together. They’re under the same umbrella.” “It’s symbiotic. It's hand in hand. They are very close.” “Oh they’re close. Very close.”

In some boroughs, like in Queens, the relationship is really close. Explains one Defender: “They’re best friends. They’re in relationships. They’re married to each other. They’re family. They’re very close.” Another Defender concurs: “In Queens, it’s a very incestuous relationship….” Another Defender shares similar sentiments about a different borough: “Incestuous. Incestuous, especially here in Staten Island. Maybe not so much in the other boroughs, because I'm sure it's a large body of prosecutors and an even larger body of police; but we have the same cops coming through with the same types of arrests, then they get familiar with the ADAs that they're dealing with. And it’s not to say that they can't be friendly and not to say that they shouldn't be friendly; but [you’ll have a prosecutor that] married the cop that has been on a million of their cases previously. It's incestuous.”

Part of the reason Defenders articulate as to why prosecutors and police are so close is because of how dependent prosecutors are on police. One Defender explains: “They're interdependent. That's why prosecutors find that they can’t be as objective as they should be, because the presumption is that a cop is telling them the truth.” Another Defender concurs: “The prosecutors are very reliant on police. They're not one in the same, obviously; but it's a symbiotic relationship. I definitely think that there's an understanding of mutual and complete loyalty that should exist there. That's what the police rely on, and prosecutors uphold this notion…. Prosecutors turn a blind eye to the consistent evidence of police mistreatment and abuse and corruption so that they can maintain a symbiotic relationship, because they need that relationship to do the good work of sending everybody to jail.” Another Defender notes that “the prosecutors are completely dependent upon the police department to execute their work. They're completely dependent upon them for everything in terms of their cases.”

However, Defenders also note that like the rest of society, prosecutors idolize police. One Defender remarks: “I wouldn't be surprised if every prosecutor, after they have a conversation with their police officer, salutes them and says, ‘Thank you for your service.’ They believe anything and everything the police says. They look out for each other. They cover each other…. The prosecution is just as culpable for what the police have done to our society as the cops are.” Another Defender states: “My sense was that prosecutors felt that their job was to defend cops, and that they were aligned with cops in the difficult work the cops did to ‘keep our streets safe.’”

Additional responses:

Defender I guess it depends on the day. Before I started practicing, I thought that they had great relationships. But now, I don't necessarily think that they have great relationships. I think they have a good working relationship, but then I've also seen instances where sometimes the officers just don't want to be bothered for whatever reason one way or the other. Not necessarily because they like or love my client, but probably just because their disdain for the prosecutor is more than that for my client. Sometimes, they’re like, I've done my job. I arrested him. You do the rest.

Defender I think that they're like a nephew and an uncle. [The nephew is the police; the uncle the prosecution] They're in the same family. They have the same mentality. The uncle has more power. He's got a suit on. He thinks he's better because he's older and wiser; he went to law school and became a lawyer. He has the nephew doing all the work for him, out in the streets. He's going to back up whatever the nephew says; whatever cases he brings to him, he's going to push them through. He is a little bit afraid of the nephew, because the nephew is younger and could beat his ass.

So that's the relationship that I think they have. Sometimes they fall out, but the nephew is never going to completely sell out the uncle and vice versa. They might have their little scraps, and you could tell that something is not all the way right; but they're not ever going to [permanently turn their backs on each other], because they're in the same family. They're part of the same syndicate.

Defender They work together, so I think prosecutors give a lot of credence to what cops say…. And this is outside of bodycams. I think bodycams have helped open the eyes of some prosecutors to the misdeeds of police, because we've gotten quite a few gun cases dismissed or offers on gun cases because it's like, why are this cop’s hands in my client's coat? But the end point I was making is that ADAs don't know how to listen to police officers with a critical ear.

Defender My poor son tells me—I could yell at my son [and say,] “Don't let them search you! Don't let them!”—and he says “Dad, what are you kidding me? If I tell them my dad's a public defender, they'll knock me around worse. They'll just come in and they'll stop me and search me.” And see, I take that out on the prosecutor because the prosecutors should be the ones that say, “We're not going to let you do that. You're walking up to people and you're just frisking them or searching them for no reason at all. I'm not going to be part of that….” But they don't do that. They accept it and they accept whatever they get from that, whether it be a weapon or drugs; but they don't even think of the 75 other people who were stopped and searched who didn't have anything and whose freaking day is blown because these cops decided to do that to them.

Defender I have a case now where police officers broke into [my client’s] apartment. It was like a mental health call. My client was asleep on the couch. He didn't know his girlfriend called the police for her brother who was having a mental health issue. So police knocked on the door, and [my client] is like, “Yo, what the fuck are y'all doing here? Why are y'all banging on my door? Y'all have no sense.” And they're like, “We're here,” and they push past him; and it causes this whole fight. They run at him, beat him down, and then say [my client attacked them] They pushed him on the ground and punched him, and he bit one of the officers….

When I spoke to the ADA, I said, “You know, this reminds me of that other case in the Bronx, with Deborah Danner. You remember [how] she had a mental health issue, and they ran up in there and they did something to her?” She's like, “Well, your client isn't the one with the mental health issue.” I said, “Yes, but could you understand how someone who could be asleep [in their home when] the police come banging on the door and don't ask any questions or don't explain themselves and just push through and do all this weird stuff, [might react that way]? I don't think that if we were in Connecticut, and someone called the police and said they had a mental health issue and could [the 9-1-1 operator] send an ambulance, that the police would feel that comfortable busting up in that person's home and causing their boyfriend to get arrested when they called an ambulance for their brother.”

The ADA said, “Well, I'm gonna reduce this case, but I can’t dismiss this case.” I asked, “Why wouldn't you dismiss this case?” She replied, “Well, the officer got bit.” I said, “Yeah, but he ran at [my client] and pushed him down and [beat him up.] What did you guys expect to happen if you're running at someone in their house?” And she said, “Well, the officer had to take cocktails; it was really bad. It was a lot for him.” I said, “You don't think it was a lot for my client to wake up and have police assault him?” It was just an interesting conversation. She then says, “Look, I know that there's a balance. There's a lot of things going around about how officers are viewed in the world; but at the end of the day, what are they supposed to do? What can they do for themselves?” And I asked, “Do you represent them, or do you represent the people of the Bronx?” And that was the end of our conversation.

But I think that they have this close relationship where prosecutors seek to protect the officers. They have to work together…. And then the officers expect a certain level of protection; it’s like, “Hey, if I fucked up, give this person a good plea, because I don't wanna go to trial and [have it] look like I fucked up or that I'm stupid or that I should lose my damn job.” And I think it just becomes this weird, codependent relationship where everybody's just pushing stuff forward to protect each other, and no one’s actually asking, “Was this the right thing to do?”

Defender I feel like [prosecutors] love [police]. They believe them. They don't question them. I feel like they look at them as their officers. I remember having a prosecutor who I think hid Brady in a case that another supervisor was handling…. We were in this particular court part—and this is when we were in misdemeanor land—and I was talking to him about something with the cops; and he said that he feels like as an ADA, his job is to protect his cops. That’s what he says to me. I said, “Well, number one, they're not your cops because you live in Long Island (author laughs); number two, they're everybody's police officers.”

I feel like there is a symbiotic relationship, which makes it a conflict of interest. I know you probably know about Sean Bell.¹⁷ I actually sat through the Sean Bell trial; and I've seen misdemeanor cases prosecuted more vigorously than the Sean Bell trial. So I feel like because of the codependent relationship between police and prosecutors, there needs to be an independent agency that does not rely on police to prosecute police officers who commit crimes. I’ve said that since back in the Sean Bell days. I think it's a conflict….

I remember asking [a prosecutor] a hypothetical. I said, “What happens if you have a guy who is a mandatory persistent, and a cop searches him and finds a gun; but then the cop admits to you that it was a bad search?” The prosecutor's like, “Well, I'd see what kind of plea he would take. I wouldn't give him a top-count plea.” I said, “Well, you wouldn't dismiss? It's a bad search.” Their mindset is always on punishment: He had the gun. It doesn't matter that how we got the gun was bad. So what kind of plea is he gonna take? as opposed to, well, we should really dismiss the case because it was a bad search.

FN 17: Sean Bell was a 23-year-old Black man who attended his own bachelor's party the night before his scheduled wedding in Queens on November 25, 2006. He and two friends got into a car after leaving the party. Five NYPD officers killed Mr. Bell and injured his two friends in a 50-bullet fusillade. See Gabriel Scott, Sean Elijah Bell (1983-2006), BlackPast (Sep. 17, 2017), https://blackpast.org/african-american-history/bell-sean-elijah-1983-2006/.

How often do prosecutors believe the word of a cop? How often do they doubt the word of a cop? How far will prosecutors go to protect police officers?

Belief The clear majority of Defenders give answers that resemble “always” or come close to “always.” One Defender states: “99% of the time. It’s a little higher than 98, so 99%. (Pause) Fuck it, 100% of the time.” Similar answers include: “Very often. To give a percentage, 95%.” “All the time, or most of the time. A majority of the time.” “Very frequently” “99% of the time, I would think. “It's a weapon, right?” Whether they believe [cops] or not, they proceed as if they do. It’s like, ‘The police officer said it. FACT.’” “99.5% of the time.” “All the time.” “It’s like close to always. Almost always.” “Very, very often, teetering on always.” One Defender offers this answer:

I've never seen a prosecutor genuinely question what a police officer is saying. Ever. There was one case [that a couple of my colleagues tried]. The cops said that things happened one way. [My colleagues] had a video showing that things did not happen that way. The prosecutor said, “Well, if you show us the video where it shows that this officer was lying, we'll give you an ACD or we'll dismiss….” So [my colleagues] showed them the video; and of course, all these excuses start coming up as to why they were not going to dismiss or give that ACD. And then they just tried to proceed on the case anyways.

So when shown evidence of a police officer lying, no matter how clear it is, it always goes back to, “Oh, they were just mistaken, blah, blah, blah….” [Another colleague] had a case where [the cop alleged that] the probable cause or the reasonable suspicion to approach her client in the first place was that the client was drinking out of a corona that was on the ground. You couldn't see it in the body cam at all. The officer is like, “Oh, if you had a wider view of what was on the ground, you would absolutely see that it's right there on the ground. The corona is right there on the ground.” [My colleague] introduces the video showing that there was no corona anywhere in sight. The prosecutor still wouldn't concede the issue. They still argued that the police officer must have been mistaken and that they had reasonable suspicion to search the client in that circumstance.

Then I had [a] case I did with a colleague. He had gotten video of the scene that showed that the stop was just awful. We went through the hearing, locked them in, and then introduced the video. It showed that the stop was very clearly unlawful. The ADA still refused to dismiss that case….

One Defender gave this answer:

Do prosecutors believe what a cop tells them? I think it's funny because I don't think they necessarily believe [cops] all the time, but they just go by what [the cops] said. I don't think they're truly believing them. They're just like, “This is how it is, because my cops said this,” and they don't care that they're not telling the truth. I don't think they care. It wasn't until body cams and video and surveillance that they started “caring” that the cops didn't tell the truth, because it looked bad on them. Now it looks bad if they're putting something forth that's different on the video. Before they didn't care; they knew the cop was lying [and that what they said] didn't make sense. They didn't care.

Disbelief Logically then, the clear majority of Defenders answer this question with some variation of “never” or close to “never.” A sample of Defender responses: “Infrequently.” “Almost never.” “Rarely.” “Very little.” “Never. I've never seen that happen.” “.5% of the time.” “Very rarely. Absent video or something like that, I think it’s very rare.” One Defender states: “If they do, they never reveal it. They never reveal that. So I will have to say it seems as though they never doubt them.” Another Defender remarks: “Rarely or never. Between rarely and never. Even if they don't, they can somehow manipulate what the cop is saying [and] manipulate evidence to support cops. Cops are the cornerstone of the criminal justice system; and [prosecutors are] not going to do anything unless [this misconduct is] in their face—and not even. [Prosecutors don’t disbelieve cops] because the heart and soul of the criminal justice system is the police; and once their credibility becomes questionable, everything kind of falls apart.” One Defender offers this story:

Never. Never, never. It's— I mean, I know you've dealt with it as well. I had a police officer say on the stand during a hearing that he was able to tell [that my client had] a lit marijuana cigarette from a football field away. (Author reacts) And I'm looking at the ADA and I’m thinking, come on, let those synapses fire in your bullshit detector, please, please, please. And it just didn't. The whole hearing, I'm just staring at the ADA like, come on, it's gotta click. It's gotta click for you. Fortunately, it clicked for the judge, and the judge was like, “Yeah, we're not doing this.” He ruled in my client’s favor. But it never clicked for the ADA. Later on, the ADA said, “Of course, a marijuana cigarette’s glow is different from a normal cigarette’s glow.” (Author laughs) And I said to myself, don't… no. Don't do that. Like, don't do that.

Protection Finally, the clear majority of Defenders report that prosecutors go quite far in protecting police officers. “Very far,” says one Defender. “Too far,” adds another. Another Defender states: “Very far. I believe that they fix police officer stories. I definitely believe that.” Adds another Defender: “They will do everything that they could do without getting disbarred to protect police officers.” Yet another Defender answers: “I would say they go to great lengths because protecting the police officer means they're protecting their case. So I think that they enable the lies. They find ways to avoid the truth. They’ll put this officer on to testify, because if they put this other one on, then this other thing that's important and mitigating is going to come out.” Another Defender states: “I think they make offers and they dismiss cases because they don't have to turn over those documents if the case is resolved. So that's going very far.” States another Defender: “They will go all the way. I mean, we see it. They’ll hide evidence, they’ll lie, they’ll be misleading. They’ll coach [the officers] to help tailor their testimony.”

A few more responses:

Defender I mean, there's so much we don't know. To some extent we don't have access to that because there are no witnesses to that. There's so much that I think the prosecutor's office knows and sees that we never know and see…. Like how much, how often? I don't know. But what we've seen, and what we can see, is pretty disturbing…. I think they'll go a long way in reconciling the evidence with what the officers say. I think they'll go reconciling that for the officers through explanations and through just [passive behavior] ….

There are significant Brady violations, and some [prosecutors] will go as far as to suborn perjury, suppress evidence, or not turn over exculpatory evidence. Some prosecutors will help the officers reconcile their testimony so that it makes sense and doesn't look like there's something wrong.

Defender I feel like they go pretty far. I've very seldom seen an ADA go against an officer. [They will subtly say,] “We're dismissing this case,” and [I'd] be like, “Why are you dismissing it?” And very, very few will be transparent and say, “Oh, because the officer is dirty” or whatever; but [most times] they try to be slick and not tell you…. So I feel like they go to a lot of lengths to protect the officers.

Defender Well… if Eric Garner's murderers didn't get indicted…. They can manipulate evidence in front of grand juries. They can fail to prosecute.

We have this one case out in Staten Island where a neighbor called the police because they heard this guy and this woman arguing. The police came out and ended up killing [the guy]. They shot him. We have some video [with cops saying,] “Oh, put down the knife.” I don't think there was ever a knife. They shot this man, and it's something I haven't let go of yet because one of my lawyers brought it to my attention and I'm still trying to figure out how to get it into the press. But the police weren't indicted. I don't even think it was investigated. Based on what I saw in the video, I think evidence was moved. I think the body was moved. They shot this man in his home because he wouldn't open the door and come out when they wanted him to. His wife said everything was okay. He was drunk. They probably were arguing, but he ended up dead because the neighbor called the cops. We started to try to get the file, the FOIL records…. Eric Garner’s killing happened on the street, and a lot of people saw it; but this [other shooting] happened at the dark of night in somebody’s home, and nothing became of it. So yes, they protect theirs, because that should have been investigated….

Defender Very far teetering on always. In [all of my] years of being a public defender, I've never had a prosecutor ever come back to me and say, “The cop didn't get it right, so we're gonna let this one go.” If I point out to them that the cop didn't get it right and their back is up against the wall, sometimes that may be a different conversation; but for them to have come to me and say, “We looked into this”—without my knowledge—“We looked into this, and the cop is incorrect, dirty, wrong, lying, etc.; and so we're sorry to waste your time,” that's never happened.

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