Prosecutorial Extortion

Extortion is a kind of threat.  A threat that’s so bad, it’s criminal.  For a threat to be criminal extortion, it needs to be of a kind to make someone do something against his will, that’s adverse to his own interests.

Threatening to kill a child if the parents don’t give you money, for example, would be extortion.  So too would be a civil lawyer’s threat to file criminal charges — even if such charges are warranted — if the other side doesn’t pony up with a settlement.  Another example is when a government official threatens to use his position to do something he’s perfectly entitled to do in the first place, unless the victim does him a favor first.

There are lots of examples of extortionate behavior.  But these last two examples demonstrate that the threatened action doesn’t itself have to be against the law.  The civil lawyer could go ahead and press criminal charges, but threatening to do so is against the law.  Ditto for the government official whose threat to merely do his job is a crime.  The point isn’t whether the threatened action is itself criminal, but whether the threat causes such fear as to override someone’s free will.

This is basic stuff.  Not exactly cutting-edge law here.

So how come nobody seems to have litigated the Queens (New York) District Attorney’s practice of extorting speedy trial waivers from defendants?

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In New York, there are a few different kinds of speedy trial rules.  One is the classic constitutional speedy trial rule, also embodied by statute in CPL §30.20.  It’s almost never used, because before any delay is likely to have impaired the defense in a typical case, CPL §30.30 will have kicked in.  That one, in a nutshell, calls for dismissal of a felony after roughly 183 days have counted against the People since the initial arraignment.  Delays asked for or consented to by the defense don’t count.  A third analogous rule is the “speedy indictment” rule of CPL §180.80, which says a defendant who hasn’t made bail must be indicted within 144 hours of his arrest, to the minute, or else he must be released from custody on his own recognizance.

CPL §§30.30 and 180.80 are there to make sure the prosecution does its job.  If a case has had more than 6 months of delay, and it’s the People’s fault, then the prosecution didn’t do its job, and the case gets dismissed.  If the People haven’t gotten their act together to secure an indictment against someone who’s sitting in jail, and this goes on for 6 days, then the prosecution didn’t do its job, and the defendant gets released for the rest of the case.

The policy is simple: we don’t want people rotting in jail while waiting to be formally accused of a crime, and we don’t want people’s lives on hold forever while awaiting trial.

The Queens DA’s office has come up with a workaround, to avoid having to play by these rules.

Their office policy is to require defendants to waive the CPL §§30.30 and 180.80 requirements, to enable the office to “investigate” the case more thoroughly before presenting it to the grand jury.  A defendant who does not waive these rules, the policy goes, will not be offered any plea bargain.

They’re threatening not to do their job right, unless the defendant first agrees they don’t have to do their job right.  How is this not extortion?

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Now, no defendant is entitled to a plea bargain.  It’s not a right, it’s not a guarantee, and it’s not even a privilege.  But the chance for a plea bargain — especially in the busy dockets of New York City — is certainly a fair expectation.  There is mutual benefit to all concerned: the prosecution doesn’t have to waste time and resources trying a case it didn’t need to; the courts can handle more cases without breaking the bank; and defendants get a disposition that satisfies the interests of justice without subjecting them to the higher sentence contemplated by the legislature.  The legislature countenances this practice, explicitly specifying what kinds of plea bargains are allowed in a given case.  Justice is served, all around.  And it’s the norm, the routine.  It’s a fair expectation, in almost every case.

There certainly are times when a plea bargain is not appropriate.  The most common example is when the hearings and trial have already begun.  Once the People have done all the preparation for trial and have started putting on witnesses, they don’t gain a whole lot from any plea deal.

Another good reason not to offer a plea is when the defendant has testified in the grand jury and said he didn’t commit the crime.  There’s no reason to penalize a defendant who testified that he did do it, but threw himself on the mercy of the grand jury — that’s perfectly fine.  But a defendant who says he didn’t do it is either telling the truth — in which case he’s innocent, and it would be unethical for a prosecutor to induce an innocent person to plead guilty by offering a lighter sentence — or he perjured himself and is undeserving of any beneficial treatment.

When a prosecutor tells a defendant that he will not get a plea offer if he testifies in the grand jury that he didn’t do it, that’s nothing more or less than a fair warning.  It’s not only appropriate, it’s practically required as a matter of professional ethics.

Telling a defendant that he will not get a plea offer unless he waives his statutory rights to speedy indictment and speedy trial, on the other hand… That’s extortion, pure and simple.

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So we’ve had some clients who had done this Queens waiver with prior counsel.  (Aside: The vast majority of our clients come to us mid-case, after losing faith in their original lawyers.  It’s nice, but it also makes us wonder why they didn’t just come to us first.  But that’s a topic for a whole ‘nother blog post.)  One is a strictly routine, run-of-the-mill case, yet it took the Queens DA’s office 15 months to get off their duff and take it to the grand jury.

That struck us as excessive, so we analyzed whether there might be a speedy-trial violation here.  The waiver sure seemed extorted, so it seemed like an argument worth raising.

But wait a second.  This has been the Queens DA’s policy for some time now.  One would think it had already been litigated.  We enjoy this stuff, but there’s no point wasting client dollars just to re-invent the wheel.

But no.  It doesn’t seem to have been litigated.  At least there aren’t any written decisions out there on this topic that we can find.  And nobody we’ve asked — including current Queens DA personnel — seems to be aware of any cases on point.

That’s just weird.  Sure, not every defendant is going to have a problem with this.  And defense lawyers who advise their clients to execute the waiver are not often going to claim their clients were extorted.  But even so, we can’t be the first to raise the issue.

Oh, we’ve raised it now.  And it wouldn’t be our first case of first impression, by a long shot.  But it’s just weird that nobody’s already called the DA’s office on this completely wrongheaded policy.

So we’ll ask our readers: What do you think about this?  Is the Queens DA doing anything wrong by conditioning plea negotiations on a waiver?  Or are we missing something here?