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Monday, April 7, 2008

And for my next trick, a disappearing conspiracy.

Judge Learned Hand called conspiracy “the darling of the modern prosecutor’s nursery.” All it generally takes to prove conspiracy is an agreement between two or more people to commit an illegal act. Sometimes the law requires that one party to the conspiracy perform an “overt act” in furtherance of the conspiracy. Whether the planned crime is actually committed or not is not an element of proving conspiracy.

An important article by Michael Brick in yesterday’s New York Times describes how the Kings County D.A.’s office has aggressively used conspiracy charges as a tactic to clean up the drug trade in tough Brooklyn neighborhoods like East New York. Since 2002, hundreds of alleged dealers, as well as workers such as lookouts and even addicts, have been indicted on conspiracy charges and held on bails of up to $1 million. Some face sentences of life in prison.

But what about convictions? As Brick reports, out of more than 500 arrests, not a single defendant has been convicted of first-degree conspiracy. Instead, there have been dismissals, acquittals, and pleas to lesser charges. Judges criticized the prosecution’s tactics; defense lawyers have protested that prosecutors are using the conspiracy charges as a pretext for withholding evidence; and juries have rejected the conspiracy charges. Stunningly, the article states that “prosecutors have argued that their evidence involves secret negotiations and must be withheld.”

In my experience, prosecutors simply do not withhold this sort of evidence if they really have it. Drug conspiracy charges are, in my opinion, among the most difficult to defend against. Usually prosecutors have informants, turncoat defendants, undercover agents, wiretaps, surveillance photos, piles of guns and knives, mountains of powder, scales, seized cars, and even trophy photos taken by the targets themselves. I have yet to meet a prosecutor who is shy about sharing solid evidence against my client. Prosecutors in Brooklyn may be concerned about their choice of using conspiracy indictments in their effort to clean up the drug trade. However, it sounds to me like these prosecutors are making excuses for flat-out badly investigated cases. You don’t get wholesale dismissals and acquittals – in essence, a disappearing conspiracy – from thin air. You get them when there is something seriously wrong with the evidence. CR

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