Is it true that all felony cases in NY go before a Grand Jury first?
an earlier report noted the friend had her own attorney which I found very strange. guess everything about this case is strange.
I believe I mentioned that in an earlier post.
Why would a complaining witness need a criminal defense attorney? I won't speculate on the only obvious reason because it causes great angst in one of your fellow posters. I can think of only one reason.
I also think it is somewhat suspect that she acquired a "legal team" immediately.
She is accusing a famous athlete of a heinous crime. I wouldn't go a step w/o my lawyer being present.
At least, we know what your angle is now.
As I've repeatedly stated, take what I say with a grain of salt because I'm a dyed-in-the-wool defense attorney. My angle is that of a criminal defense attorney. Is that something that you're only now discovering?
Up until now, I think you have been pretty neutral about this whole situation.I completely forgot you were criminal defense attorney, which then explains what you were implying
I think you've been quite rude to me thus far and I've been chalking it up to a difficulty in your grasp of English. I hope that's the case. I'm sure you'll be equally critical of the fact that I'm answering this question as you have been of every effort I've made to guide you folks, but I will nevertheless answer your question.
A person will be offered "bail" as required by statute. The People can ask for a remand, or ask for an amount of bail so tremendous as to be a de facto remand. However the preference is to offer some sort of bail to assure the defendant's return to court.
If the person is one of means and can afford an amount of bail, or perhaps the smaller amount required to be paid to a bail bondsman to have that bondsman post the bail, they will be released on bail. If that person cannot afford the amount of money they will remain incarcerated.
Since I am a private lawyer, many of my clients are of means and can make bail.
In technical answer to your questions:
I've never seen an arrest take this long in a rape case.
If a person is arrested on a rape and not indicted within five days he has to be released pursuant to Criminal Procedure Law 180.80. Charges are filed on the same day the arrest is made, typically about 24 hours later. Or at least a criminal complaint is drafted, the defendant is arraigned on that complaint, and bail is set.
The "forensic results" or DNA testing appear almost completely irrelevant to the prosecution decision since the alleged rapist is known to the complainant. The only possibility would be if the defense was that he didn't have sex with her. I sincerely doubt that's the defense, nor do we have any indication that the defense would be known to the prosecution; even if he proffered as has been reported at one point. What could the forensic results POSSIBLY reveal on the element of consent, the only issue that I suspect would be disputed. The length of time it takes to procure forensic results are not dispositive of the bail issue.
If you say it's uncommon that an arrest has not taken place, I believe you. Leaving that aside for the moment, I find the system and normal way to proceeed (as you described) somewhat perplexing, maybe because I'm not sure about the relationship between filing charges and indictment by a grand jury. If I understood correctly, the police, or the police and DA together investigate, DA files charges to present the case for a grand jury for an indictment. You also mention that the threshold for an arrest is very low, and typically charges are filed within 24 hours of an arrest. Feel free to correct my misunderstandings.
Correct.
Leaving the lack of an arrest aside in this case, I'm trying to process this through a hypothetical. A rape accusation is made, alleged victim goes through a rape examination, names the perpetrator. The police has probable cause to arrest since her story seems believable, even though there is very little other physical evidence, but perhaps some, like a bruise. The police soon after arrest the alleged attacker.
The DA finds the alleged victim's story believable. The alleged attacker, either decices not to say anything, or alternatively, admits to sexual contact but says it was consensual.
The defendant is not required to say anything, first. And for a defendant to say something BEFORE he were arrested would be quite rare indeed. In fact, he'd be arrested first and then the cops would attempt to get him to waive his miranda rights and interrogate him at that time.
It would be highly unlikely that a statement would be taken before arrest.
Within days, even within 24 hours the DA files charges and present the case to the grand jury for indictment, without waiting for the results from the rape kit.He decides to do this because the results would not likely offer any viable information - I guess my question is, why does he make this call?
Because he has to present the case to the grand jury for it to proceed. This is required within five days or the defendant is released and the case has to proceed while the defendant is out. The DA cannot proceed on a felony without presenting to the grand jury and getting a true bill.
The defendant or his council is not present at the grand jury proceedings (another poster mentioned this)
I mentioned it several times. However the defendant does have the RIGHT to appear at the grand jury in his defense pursuant to Criminal Procedure Law 190.50. It is not entirely common to do that although this might be one time that it is worthwhile.
, so the grand jury has no input from him if he denies sexual activity taking place, or if the alleged attacker has chosen not to talk. Why would the DA not wait for the results before proceeding?
He doesn't need the results. He has the woman saying she was raped and that's ALL the grand jury has to decide if there is probable cause. That's all he needs and 99-100% of grand juries return on an indictment since the bar is so low.
He has a considerably weaker case in his hands to present.
No he doesn't.
Also, there is a speedy trial statute in New York as well. It is complicated and I won't be getting into it right now, but pre-trial delay is charged to the People.
Or do you explicitly mean a situation where the alleged attacker has admitted to consensual sex? I guess my question is, why wouldn't the DA wait for the DNA results before proceeding if they want to build a strong case, to establish certain facts like that sexual activity indeed took place. If in a situation where a person admits to sexual activity there is no additional value in the rape kit results, why would they even be processed?
Thousands of reasons. Most importantly it makes no sense to leave a person on the street who you think is a violent rapist. It looks very bad at trial and it looks very bad in the public and in the grand jury.
Or, is there a gap between filing charges and the grand jury hearing, i.e. the results will be available by the grand jury hearing?
You fail to understand that the results of the rape kit are only really important when the alleged attacker is unknown to the complainant. No, the results would rarely be ready by the grand jury presentation and, even if they were, they would probably not even be presented because the DA typically presents the minimum amount possible to minimize Rosario material.
Nope.
Hm, so you don't think that's a probative fact on the credibility of the witness?
What if Patrick Kane called a defense attorney the minute she left his house, and hired him, before she called the police? Would that pique your interest as a juror?
I would like to think a judge would instruct the jury not to let that affect their opinions towards either side.
We don't have a disagreement. You are just rude and disrespectful to me seemingly because you do not like the information I'm providing. That's not a disagreement. I think you lack a complete grasp on the language and it is causing you to perceive matters incorrectly.
He doesn't need the results. He has the woman saying she was raped and that's ALL the grand jury has to decide if there is probable cause. That's all he needs and 99-100% of grand juries return on an indictment since the bar is so low.
Thousands of reasons. Most importantly it makes no sense to leave a person on the street who you think is a violent rapist. It looks very bad at trial and it looks very bad in the public and in the grand jury.
I'm no longer going to be participating in this thread.
If anyone has questions you can send me an email through the email system.
I'm no longer going to be participating in this thread.
If anyone has questions you can send me an email through the email system.