By age 23, almost a third of Americans have been arrested for a crime, according to a new study that researchers say is a measure of growing exposure to the criminal justice system in everyday life.

The study, the first since the 1960s to look at the arrest histories of a national sample of adolescents and young adults over time, found that 30.2 percent of the 23-year-olds who participated reported having been arrested for an offense other than a minor traffic violation.

Astonishingly, the study ”did not look at racial or regional differences, but other research has found higher arrest rates for black men and for youths living in poor urban areas.”

This latter observation is not exactly a news flash to those of us who work in the criminal justice system. What’s problematic about this study is that it did not look at race. Other studies I have seen have noted that one in three young black and Latino men have been arrested whereas for young white men the figure is around one in a hundred.

In an age of political correctness, I suppose the latter is not something we can discuss openly. Yet until we can be honest about it, we are never going to effect any real change. The first step in correcting a problem is identifying it.

If you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.

The information I have just provided — about a constitutional doctrine called “jury nullification” — is absolutely true. But if federal prosecutors in New York get their way, telling the truth to potential jurors could result in a six-month prison sentence.

A constitutional right? That’s news to me. While I’m willing to accept that jury nullification can be acceptable under certain circumstances, I’m not aware of any provision in the Constitution that enshrines nullification as a right.

The writer seems to suggest that nullification is indeed a right since we have the right of free speech; voting not guilty, even where guilt is proven, is therefore an exercise of free speech. That’s a stretch, in my view.

In practice, at least in New York, potential jurors are asked by the judge, “If you disagree with the law as I give it to you, but the People still prove the defendant’s guilt, can you convict?” If a potential juror says he cannot, he is dismissed from service. If jury nullification were a right, as the writer of the op-ed contends, the judge could not examine potential jurors in this way.

Brooklyn prosecutors said Tuesday they won’t cut any deals with the suspects in the slaying of hero cop Peter Figoski.

“This will be a trial,” Brooklyn District Attorney Charles Hynes said a few hours before the five men pleaded not guilty to murder charges.

“There won’t be plea bargaining in this case.”

I have to say, though, that it is always something of a head-scratcher when  prosecutors proclaim they will not plea bargain in a particular case. Usually they do so to sound “tough,” signaling that this case is so awful that they are going to take it extra-seriously, implying that in other presumably less important cases they are willing to take them less seriously and engage in plea-bargaining.

When the public or family of the victim declares they do not want plea-bargaining, I know that this belief flows from a common misunderstanding of what plea-bargaining is all about. The public believes plea deals are just about the DA being lazy and cutting back-room bargains to save themselves time and effort. The public thinks the only time the DA hands out a plea bargain is when he doesn’t want to go through the effort of taking the case to trial.

That’s what the public believes, but prosecutors know better and I’m always a little astonished when DAs say “there’ll be no plea bargaining,” as if to say this case is different from all the others.

I’ve gotten and offered thousands of pleas, and I can tell you that plea bargaining is not about the DA being lazy or about the defense attorney selling his client out cheap. Nor are plea bargains reserved for lesser, unimportant cases. There are simply times (and plea bargains are more common than trials) when a plea bargain is appropriate. Both sides have to want it; that’s why it’s called a bargain — it’s a contract entered into by both sides. If either side doesn’t want it, there is no bargain and the case then goes to trial.

To say “there will be no plea bargaining” in the case of Officer Figoski’s death is, in my view, simply a public relations move, not a legal decision. It is merely a sop thrown to, in this case, the police union and the victim’s family. It is intended to signal the DA is taking the case seriously. But is there really any worry here that the DA is not taking this case seriously? Of course not, so why pander to the mistaken belief that plea bargaining is somehow a less legitimate way of disposing of a case than trial?

Mayor Bloomberg blasted the Brooklyn judge who freed accused cop killer Lamont Pride without bail last month — saying one quick phone call could have prevented a tragedy.

When Pride was picked up for crack possession near Coney Island in November, he was wanted for a shooting in North Carolina.

Because of a mistake, the warrant did not specify he should be held for extradition.

Judge Evelyn Laporte, a former prosecutor with a reputation for toughness, allowed Pride to go free Nov. 4, brushing off a low $2,500 bail request from the DA’s office.

On Monday, Pride allegedly shot Officer Peter Figoski in the face during a botched home invasion.

This is the kind of thing that drives me nuts: politicians who stick their noses into criminal prosecution. Prosecution should be free from political taint, but here we have the mayor — a businessman, not even a lawyer — who sees fit to criticize a judge for doing a job Bloomberg knows nothing about. Why? Because he thinks he can make political hay out of being “tough.” As if.

The fact is Judge Evelyn Laporte (who is no raving liberal soft-on-crime judge by the way) did her job as any other judge would have done in the circumstances. As far as I know, Judge Laporte does not have a crystal ball that enabled her to see into the future and observe Mr. Pride killing a cop. Under the circumstances releasing Mr. Pride was quite usual and not at all outrageous. Why not blame the DA, Mr. Mayor? If the DA thought Mr. Pride was such a danger, why did they only ask for $2,500 bail?

Remember, bail is not intended to keep criminals safely tucked away in prison. Rather, it is intended to secure the presence of a criminal defendant in court. That’s all. It is not punitive in nature, and it is not intended to keep dangerous men off the street. The reason why the DA did not ask for higher bail is that they did not think he was a flight risk. Same for Judge Laporte.

Judge Laporte’s decision to release Mr. Pride did not provide a link in the causal chain that killed P.O. Figoski, and the Mayor should not make this situation worse by casting about for people to blame — particularly a judge, who by tradition is not ethically permitted to respond to this unwarranted, ill-informed, and politically motivated attack by a mayor who has so far shown nothing but disdain for New York’s criminal justice system.

According to the Daily News:

Hotel surveillance footage surfaced Thursday that is likely to fuel suspicion French philanderer Dominique Strauss-Kahn was set up on a bogus sex-assault charge.

The video shows the pervy politician calmly paying his bill and leaving the swank Sofitel in Manhattan by taxi on the day of the alleged attack — and then cuts to shots of the maid who accused him.

From the New York Daily News here.

Here is one such instance:

A judge in Brooklyn has overturned a gang-related murder conviction in a case where the court described the prosecutor’s conduct as “grossly negligent” at best, characterized the defense case as “feeble,” and suggested if this was not an instance of prosecutorial misrepresentation, it was certainly one of ineffective assistance of counsel.

Supreme Court Justice Joel M. Goldberg expressed dismay and confusion as to how two “experienced and well-regarded” attorneys — then Brooklyn Assistant District Attorney Lawrence J. Fredella and defense counsel Alan I. Stutman of Brooklyn — both could have completely dropped the ball as to permit the conviction of a man for murder on undeniably wrong evidence.

“What happened in this case turned out to be a perfect storm of false assumptions, overlooked evidence, missed opportunities to learn the truth, and erroneous conclusions, and as a result, the defendant was convicted of murder,” Goldberg wrote in People v. Canales, Indictment No. 8406/07, in granting the defendant’s motion to vacate the conviction under CPL 440.10.

The case began the night of Aug. 22, 2007, when the defendant, Tony Canales, a member of the Bloods gang, fatally shot a fellow gang member, Antonio Bruce.

Canales insisted that the shooting was an accident, and that a gun he did not know was loaded went off when someone bumped or grabbed his arm during a confrontation with the Crips gang. The defendant contended that he had brandished what he thought was an unloaded gun in an effort to scare away his rivals.

But a surveillance video introduced at trial seemingly contradicted Canales’ statement.

The video depicts Canales, gun in hand, briskly approaching a man while his prey stumbles on a curb, gets up and runs off camera with the defendant in pursuit. However, the man being pursued — a member of the Crips gang — was not the victim, who at that point was alive and observing the events as a bystander.

At a September 2008 trial before Goldberg, Fredella relied on the video to build a case of intentional murder.

No one identified the deceased in the video, no one who witnessed the shooting testified, and a girl who the prosecutor said had picked Canales out of a lineup as the person who shot the deceased did not testify. According to the court, Fredella did not show the video to witnesses, or even view it himself before the grand jury presentation.

Stutman, the court-appointed defense counsel, erroneously conceded in his summation that the video depicted the deceased, leaving him with “no choice other than to make the feeble argument that chasing the deceased was not inconsistent with the defendant having previously accidentally shot him,” the court said.

At a hearing on the CPL 440.10 motion, Fredella, who had by then left the district attorney’s office, said he had not had time to review the motion papers or the case file, but believed the video would prove the defendant’s intent to commit murder, without need for eyewitness testimony.

Stutman could not specifically recall his summation and said that while he believed he had shown the video to his client, he did not recall having a discussion with the defendant about the contents. The defendant, Canales, said that he saw the video for the first time at trial, was baffled by references to it and told his counsel that the man in the video was not the victim, but to no avail.

Goldberg said that Fredella “misrepresented to the jury the identity of the person being chased in the video” and, 11 months earlier, served a bill of particulars asserting that the video “captured the shooting,” when, in fact, it does no such thing.

“Either the prosecutor prepared the bill of particulars describing the video without personally viewing it, or his hearing testimony that he did not view the video until just before trial was incorrect,” Goldberg said.

The court said that several documents in the district attorney’s case file “at least with the benefit of hindsight, should have alerted the prosecutor that the person being chased by the defendant was not the deceased.”

For instance, records show that the victim, like the defendant, was a member of the same gang, the Bloods, but that the incident resulting in the victim’s death was a confrontation between their gang and the Crips.

“If the prosecutor actually believed at the time of trial that the defendant chased and then intentionally shot and killed [the victim], he not only did not appreciate the significance of the contrary information in his file, he likewise did not understand the grand jury testimony he, himself, had elicited,” Goldberg said. “If the prosecutor’s misrepresentation of the facts at trial were not intentional, they may be fairly characterized as grossly negligent.”

Goldberg said that if the jury knew that the defendant was not chasing the deceased, “there would have been no evidence whatsoever to explain how the deceased was shot other than defendant’s statement that the shooting was accidental.”

‘PROFESSIONAL FAILURES’

The court was no less critical of the defense, citing a number of “professional failures by defense counsel that contributed to the defendant’s murder conviction.”

Goldberg said that Stutman conceded in his summation, “without any basis in the proof and without any tactical reason to do so, that the defendant was chasing the deceased in the video.”

The court said it appears that Stutman never showed the video to, or discussed its contents with, the defendant before trial and did nothing when, during jury deliberations, his client apparently told him that the man in the video was not the man he shot. At the 440.10 hearing, Stutman could not recall the specifics of what he had discussed with his client.

“Although defense counsel’s many years of trial experience may explain his not remembering details of his particular cases, there certainly could not be many other cases like this one where a client made a statement during jury deliberations that his attorney’s summation got the facts all wrong and misstated crucial evidence to the detriment of the defense,” Goldberg wrote.

The court said there was no need to decide if the prosecutor’s misrepresentation required vacating the conviction because the conviction fell on ineffective assistance grounds.

Canales had been serving a sentence of 20 years to life. Goldberg left intact Canales’ conviction for second-degree criminal possession of a weapon, for which he is serving a 15-year sentence.

Fredella said in an email that after reviewing Goldberg’s decision, “in hindsight I see the mistakes that I made. I should have been more thorough in case preparation.”

But Fredella insisted he did not misrepresent any fact to the jury.

“The judge’s decision grossly misstates how the events of the case unfolded, how the trial progressed, and omits numerous important issues that I had to deal with during trial and the events that led up to the trial,” said Fredella, who is now a criminal defense attorney. “In my summation, I merely followed up on defense counsel’s concession that the defendant was chasing the deceased and finally shot and killed him. I stand by my actions in this case and especially at trial.”

Stutman declined to comment.

The defendant was represented on the motion by David Cooper of Brooklyn and Steven Z. Legon of Manhattan.

Assistant District Attorneys Catherine Dagonese and Anna-Sigga Nicolazi represented the Brooklyn District Attorney’s Office.

Jerry Schmetterer, a spokesman for the Kings County district attorney, said the office will not appeal the ruling.

From the New York Law Journal, November 15, 2011.

illustrates the resistance mounted by a minority of prosecutors around the country in the face of exculpatory DNA evidence.

Mr. Swift was convicted of rape and murder in 1994 and recently DNA evidence showed another man tied to the victim’s body.

From the New York Times here.

Those of us who watch CSI and its various iterations (I don’t) have made us as a nation come to believe that the presence of DNA at a crime scene = guilt whereas the lack of DNA evidence at a crime scene = not guilty. Not true. The presence of a criminal defendant’s DNA at a crime scene could have an innocent explanation. From the prosecution’s point of view, the lack of the defendant’s DNA at a crime scene should not necessarily equate with innocence in the face of other proof beyond a reasonable doubt.

In other words, DNA is not a magic bullet for either the prosecution or defense. Its presence or absence needs to fit within the context of the case.

The decision by New Jersey’s Supreme Court last week to overhaul the state’s rules for how judges and jurors treat evidence from police lineups could help transform the way officers conduct a central technique of police work, criminal justice experts say.

In its ruling, the court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures are flawed and can send innocent people to prison. By making it easier for defendants to challenge witness evidence in criminal cases, the court for the first time attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.

A fascinating piece in the Times today about something criminal lawyers have known for years: that eyewitness testimony is fraught with problems.

The full story in the Times is here.

Those who wondered in 2009 whether an improbable candidate for Manhattan district attorney, a Seattle defense lawyer named Cyrus Vance, Jr., could ever begin to fill Robert Morgenthau’s big shoes now have their answer: nope. Mr. Vance’s decision to dismiss the biggest prosecution of his brief tenure more than anything else shows a remarkable lack of the kind of guts essential for any big city DA.

Mr. Vance’s office, in moving to dismiss the case, claimed it had lost faith in Ms. Diallo, given their discovery that she had lied on her tax returns and on her asylum application. Mr. Vance also said that he was shocked, shocked to learn that Ms. Diallo had expressed interest in bringing a civil claim for damages against Mr. Strauss-Kahn.

Certainly these facts would be prime cross-examination material at trial, and Mr. Strauss-Kahn’s attorneys should be grateful to Mr. Vance for so diligently working overtime to do their job for them. No evidence uncovered by Mr. Vance’s investigators, however, directly contradicted Ms. Diallo’s contention that she was assaulted by Mr. Strauss-Kahn. In fact, the physical evidence supported her version of events, which Mr. Vance was pleased to proclaim just a short time ago.

Mr. Vance’s decision is troubling on many fronts. First, if you are a women who has been raped or sexually attacked, you already have a natural reluctance to come forward to report the crime. Victim’s of sexual assault tend to say that the main reason they keep silent is the fear that no one will believe them. Vance’s decision here proves their fears justified. Before she even got to trial, Ms. Diallo had to run a gauntlet of Mr. Vance’s prosecutors and investigators. As a result, more women will keep silent. More rape will go unreported.

Ironically, Vance’s opponent in the 2009 election was Judge Leslie Crocker Snyder, a woman instrumental in putting in place New York’s rape shield law, which was designed to protect victims of sexual assault from cross-examination on their sexual history for purposes of destroying their credibility at trial.

Mostly what’s troubling about Mr. Vance’s decision is what it reveals about Mr. Vance himself, specifically an astonishing naiveté about criminal prosecution and about human nature. Good prosecutors need to understand human nature to speak both to their witnesses and to the juries who hear their cases. Mr. Vance, however, seems to think that a person who has lied about something can never again be believed about anything.

Juries know better. To be sure Ms. Diallo’s tax returns would provide a few uncomfortable moments at trial, but at the end of the day juries are not stupid. Juries know that someone can tell lies without being a liar. Juries understand what Mr. Vance evidently does not: that all of us lie to one degree or another. Mr. Vance would certainly have preferred Ms. Diallo remained the wholly sympathetic “single immigrant mom” she appeared at the start, but experienced prosecutors understand that sometimes a woman who lied on her tax returns can be raped in a hotel room.