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| Michael Bloch |
This practice imposes a devastating array of consequences on individuals and communities, no matter how the case ultimately turns out.
Alba, who was hastily charged with murder despite the existence of a video showing that what occurred is textbook self-defense, is simply the latest victim of this destructive practice.
Manhattan District Attorney Alvin Bragg ultimately succumbed to three weeks of high-profile pressure and dismissed the case earlier this week. But the systemic failure that led to Alba's ordeal unfortunately survives the dismissal of this particular case.
The bodega incident occurred on July 1. Surveillance video shows that Alba was working the cash register in an enclosed booth when a customer jumped behind the counter and attacked the 61-year-old Alba.
After having been forcefully shoved into a wall and cornered, Alba grabbed a knife that he normally uses to open boxes and fatally stabbed the customer.
Many who watched the video agreed immediately that Alba acted in self-defense. Within days of the incident, a bipartisan group of local lawmakers wrote to Bragg urging him to "drop all charges against Jose Alba, the bodega worker who defended himself against a violent attack."[1]
Nonetheless, Alba was arrested and charged with second-degree murder on July 2, the morning after the incident. He was sent to Rikers Island that very day, a judge having set $500,000 bail at the request of the Manhattan District Attorney's Office.
In my experience as a public defender in New York, the breakneck speed from incident to incarceration is commonplace in the state system.
While the police often investigate crimes, prosecutors have the ultimate authority to decide whether there is sufficient evidence to move forward with a case, or, instead, to ensure that additional investigation happens first.
In the state system, prosecutors routinely bring criminal charges after minimal, if any, meaningful investigation has been conducted, and then ask judges to incarcerate people on bail amounts the accused often cannot afford.
Alba is fortunate to have defended himself in front of a surveillance camera. Had a video never surfaced here, it is likely he would still be locked up. Without the public uproar that ensued, Alba likely would still be fighting these charges.
Last week, city bodega owners reportedly met with Bragg to ask him to drop the charges. According to one man's account of the meeting, Bragg stated, "I don't understand why people are jumping to conclusions. I have not made a determination. I am investigating."[2]
The problem is that the district attorney's office had already jumped to a conclusion: that Alba should be charged with murder in the face of a video showing he's done no such thing.
As Alba's case demonstrates, arrests by themselves have crushing consequences for the accused. A matter of days in facilities like Rikers Island can be physically and emotionally traumatizing. The stab wounds on Alba's arm reportedly became infected while he sat on Rikers Island, as the DA's office investigated whether he belonged there in the first place.[3]
According to a recent report released by the U.S. Commission on Civil Rights,
studies have shown that there is a correlation between the imposition of monetary conditions to secure pretrial release and the increased likelihood of individuals suffering from housing insecurity, unemployment, loss of child custody, and an increased risk of future criminal behavior.[4]
The reputational damage from an arrest can be irreparable, particularly where "perp walks" generate huge fanfare and media attention. Dismissals, by contrast, often go out with a whisper.
Arrests may disappear from the public consciousness, but since they stay on the internet forever, a simple Google search that turns up an arrest can cost someone their livelihood.
There is also the substantial risk that a hasty arrest turns into an unjustified conviction. As Fordham University criminal law professor and scholar John Pfaff has noted:
A study by the Bureau of Justice Statistics looking at urban defendants in state courts found that in 2009, 66 percent of those charged with felonies were convicted, while only one percent were acquitted. The vast majority of those convicted plead guilty instead of going to trial. This means that the last real chance to avoid a wrongful conviction actually occurs at the screening stage, when the prosecutor decides whether to file charges in the first place.[5]
In the Bronx, where I worked as a public defender, I saw countless victims of the charge-first, investigate-later mentality. People have spent weeks, months and even years detained pretrial in jail before they were acquitted or released because someone — usually a defense attorney — finally investigated.
Kalief Browder tragically spent years in jail based on an arrest that was ultimately dismissed. He later died by suicide from the trauma of it all.[6]
The charge-first, investigate-later approach does not seem to apply to police officers. Suspected crimes involving police officers are treated with a level of care the rest of us deserve.
The arrest rate for fatal police shootings is between 1%-2% each year.[7] While police officers are afforded more leeway than civilians to use force in the ordinary course, the benefit of the doubt they receive sometimes looks more like a get-out-of-jail-free card.
A prosecutor's reticence to charge police officers may stem from any number of motives, including, for example, the traditionally close relationship between prosecutors and police officers, who generally work together to prosecute others suspected of crimes.[8]
Whatever the cause, police officers suspected of crimes — even those caught on tape — are afforded seemingly limitless investigations before charges are brought, if they are ever brought.
NYPD officer Daniel Pantaleo infamously choked Eric Garner[9] to death on video in broad daylight. Whereas Alba was charged with first-degree murder within hours of the incident, the Staten Island district attorney in charge of Pantaleo's case reportedly empaneled a grand jury that heard testimony from 50 witnesses[10] before the determination was made not to file charges.
Pantaleo didn't even lose his job until the conclusion of a five-year investigation[11] by the NYPD and other entities.
As a general matter, things do not work this way in the federal system, even for those who are not police officers. Federal prosecutors, who have far fewer cases, typically do not bring charges without conducting at least some investigation first.
Unsurprisingly, the conviction rate[12] after trial in the federal system — approximately 83% — is much higher than in, say, New York City,[13] where it is approximately 67%. Convictions are more common when evidence is gathered and reviewed before charges are brought.
Legally speaking, police and prosecutors only need probable cause that someone has committed a crime in order to make an arrest, a lower standard than what is necessary to sustain a conviction, i.e., beyond a reasonable doubt.
But, as the disparity between state and federal practice demonstrates, probable cause can be in the eye of the beholder. Judges often play no role in the determination of whether probable cause exists to make an arrest, and New York state prosecutors are far too quick on the proverbial trigger finger.
As professor and former federal prosecutor Heidi Rummel and American Civil Liberties Union of Southern California legal director Peter Eliasberg have argued in a similar context:
Until the DA's office has a policy and practice of reviewing all reasonably available evidence — including videotapes of the incident in question — we cannot be reasonably sure that the rush to judgment has been replaced with a search for justice.[14]
The American Bar Association's ethical standards[15] governing prosecutorial conduct provides that "[t]he prosecutor should seek to protect the innocent" as well as "convict the guilty." A system that charges first and investigates later cannot possibly live up to that ideal.
There's no structural reason state prosecutors cannot investigate before bringing charges. They have all the resources at their disposal necessary to do so: grand juries, their own investigators and police forces with billion-dollar budgets.[16]
Bragg finally concluded after his publicity-inspired investigation that charges should be dropped against Alba. But if we aspire to a system that remains faithful to the presumption of innocence, district attorneys need to ensure that more investigations happen first.
Michael Bloch is a partner at Bloch & White LLP. He previously served as a public defender at the Bronx Defenders.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.scribd.com/document/582085363/Joint-CM-Letter-to-Alvin-Bragg-Re-Jose-Alba-July-7-2022#from_embed.
[2] https://nypost.com/2022/07/12/da-bragg-absolutely-considering-dropping-jose-alba-murder-charge/.
[3] https://www.nydailynews.com/new-york/nyc-crime/ny-bodega-fatal-stabbing-jose-alba-harlem-20220709-n4q2jtd7ejdk7feyl2vhxtxwqu-story.html.
[4] https://www.usccr.gov/files/2022-01/USCCR-Bail-Reform-Report-01-20-22.pdf.
[5] https://www.washingtonpost.com/news/in-theory/wp/2016/01/21/why-do-prosecutors-go-after-innocent-people/.
[6] https://www.newyorker.com/news/news-desk/kalief-browder-learned-how-to-commit-suicide-on-rikers.
[7] https://www.vox.com/21497089/derek-chauvin-george-floyd-trial-police-prosecutions-black-lives-matter.
[8] https://www.hrw.org/legacy/reports98/police/uspo31.htm#P787_233943.
[9] https://abcnews.go.com/US/years-eric-garners-death-back-case-movement-sparked/story?id=63847094.
[10] https://www.nbcnews.com/news/us-news/grand-jury-eric-garner-case-heard-50-witnesses-n261681.
[11] https://www.cityandstateny.com/policy/2019/08/five-years-of-eric-garner-and-daniel-pantaleo-proceedings/177150/.
[12] https://www.uscourts.gov/sites/default/files/data_tables/jb_d4_0930.2018.pdf.
[13] https://nypost.com/2017/07/22/the-bronx-has-the-lowest-conviction-rate-in-the-city/.
[14] https://www.aclusocal.org/en/news/prosecutors-should-search-justice-instead-rushing-judgment.
[15] https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/.
[16] https://www.cityandstateny.com/policy/2022/06/was-nypd-budget-increased-year-yes-its-complicated/368239/.