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In the Bronx, Victims Get 24 Hours to Talk – Or the DA Lets the Accused Walk

Tuesday, August 21, 2012

Bronx Criminal Court, New York state courts (Stephen Nessen/WNYC)

This is part one of a two-part series.

A months-long WNYC investigation has revealed that those accused of crimes in the Bronx have a greater chance of walking away without any charges than anywhere else in the city.

The Bronx County District Attorney’s Office declines to prosecute thousands more cases than do the four other District Attorney offices – and one of the main reasons is an internal policy that cops say allows criminals to go free.

The Bronx DA’s Victim Policy

In the Bronx, if a victim isn’t interviewed by prosecutors within 24 hours after an arrest, the DA will almost always decline to prosecute the case — an internal policy followed by no other DA's office in the city.

Internal city records obtained by WNYC suggest this internal guideline is a big reason why Bronx prosecutors declined almost one quarter of all their cases last year.  That’s nearly four times the average rate Manhattan and Brooklyn prosecutors declined cases, according to data from the New York State Division of Criminal Justice Services. Manhattan and Brooklyn each see thousands more arrests than the Bronx.

Bronx District Attorney Robert Johnson declined to be interviewed for this article. But his chief assistant, Odalys Alonso, told WNYC that the longstanding requirement that victims come forward within 24 hours is both reasonable and just.

“When we decide to do a decline-to-prosecute, I’m very confident that we have real reasons not to bring the charges against that defendant,” said Alonso, who sat down for almost three hours of interviews over the last 10 months with WNYC. “Before we decline, we take great pains to ensure that it is the right decision.”  She added, “Our office has had for a very long time this policy -- if you want to call it that — that our victims have to come forward early.”

In any District Attorney’s office, the decision to decline to prosecute a case is a decision that usually takes place within the first 24 hours after an arrest.

Internal city records obtained by WNYC show the most common reasons other prosecutors in the city make that choice is because there is insufficient evidence to support an arrest or the arrest paperwork is incomplete. The Bronx is the only borough in the city where prosecutors' most common reason is that a victim refused to cooperate, records show.

Bronx prosecutors have had the highest decline-to-prosecute rate in the city for 13 of the last 16 years, and state data shows that rate began climbing after Johnson took office as District Attorney in 1989. 

In his inauguration speech, Johnson said he wanted to see a Bronx where “the lawless are punished when they put the lives and property of the law-abiding at risk.” 

Why Victims Don’t Cooperate


(Photo: Many victims in the Bronx are reluctant to cooperate with prosecutors.  Pictured here, residents of Jackson Houses tell WNYC they don’t come forward because they fear retaliation. Stephen Nessen/WNYC)

If you want to know why victims so often don’t cooperate, talk to Maxine Scott.  She lives in the Jackson Houses, a public housing complex in the South Bronx.  She has a scar that crawls down her forehead, like a fault line between her eyes all the way to the tip of her nose.  Another scar slices across her eyelid, her jaw, down her neck, and doesn’t stop until it reaches her chest.

(Photo: Maxine Scott says she was attacked by a woman when she was with her young daughter in 1991. She never pressed charges. Ailsa Chang/WNYC)

Scott, who was with her young daughter at the time of the attack, said she got into an argument with another woman about her parenting skills on a hot summer night in 1991. The other woman took out what looked like a razor blade from her mouth, Scott said, and started swinging.

“She opened up my forehead,” Scott said. “She opened up my left cheek, under my throat, and my chest has a scar on my right breast. And on my arm. She cut my shirt wide open.”

Scott blacked out from the loss of blood.  When police officers later interviewed her, she refused to press charges. 

“My daughter was with me when they cut me, so they know what she looks like. So in the back of my head, ‘They’re going to retaliate. They’re going to do something to her,’” Scott said. “And that’s my only child. You know, I carried her for nine months. That’s my life. Anything happens to her, I would never forgive myself.”

So she never talked to prosecutors about the attack, and the DA never filed charges against her assailant. 

WNYC could not confirm her account with the NYPD, but law enforcement experts and victims rights advocates say the Bronx is filled with people like Scott, and a policy that gives up on victims after the first day means too many cases get dropped too quickly. 

Half of Dropped Cases Tossed Out Because Victims Didn’t Cooperate

WNYC first asked Alonso in late 2011 why her office has the highest decline-to-prosecute rate in the city.  She said it’s because her office is just more careful in the beginning about weeding out cases that don’t fly – such as an improper arrest, sloppy police paperwork or weak evidence. 

But then last month, Alonso provided WNYC with internal office data that suggested a very different picture. The document was a snapshot of the last three months of cases declined by the office and the reasons prosecutors declined those cases. Almost half of all the cases dropped by her office were thrown out because the victim didn’t cooperate. 

Insufficient evidence accounted for only one-tenth of all abandoned cases. And only 2 percent of cases were declined because of incomplete paperwork.

(Photo: Bronx District Attorney Robert Johnson. Courtesy of the District Attorney's office)

Alonso acknowledged her office drops many cases because it requires victims to cooperate the first day.  She agreed that a lot of victims don’t want to cooperate, but she defends the policy. When victims get on board sooner, Alonso explained, prosecutors can build a stronger case and better support victims by informing them early about case details and explaining what to expect from the criminal justice process. 

And early interviews with victims also allow prosecutors to test victims’ credibility as witnesses, she added.

“We do that initially because we hope that makes for a better relationship between us and our civilian witnesses,” said Alonso.

But critics said there is no relationship between prosecutors and the victims whose cases are abandoned after the first day. Victims’ rights advocates and veteran prosecutors elsewhere said there are so many reasons victims don’t come forward right away – they may be badly hurt, be difficult to find or may fear retaliation. 

Alonso says the office does try to grant exceptions to victims who are being intimidated by their attackers from coming forward.  But critics ask how prosecutors can even know who the victims are if they have never talked to them.

Linda Fairstein, who served as Chief of Sex Crimes in the Manhattan DA’s Office for 26 years, said she can’t understand why the policy would be imposed. 

“It’s not the standard for the courts in New York. It’s not a rule imposed by law. It’s an internal guideline,” said Fairstein. “And that first 24 hours is when you’re trying hardest to find your victim or witness, and that’s the time the witness may be most unable, if not reluctant, to come forward.”

Victims in the Bronx sometimes don’t even get a full 24 hours. Alonso says her office usually waits about four hours for a victim to show up after an arrest report arrives at the DA’s office before tossing out a case. Processing an arrestee – who needs to be booked, fingerprinted, etc. – can sometimes take hours.

Police officers in the Bronx tell WNYC that’s just not enough time. Some victims need days – or weeks – with repeat visits by police to decide to cooperate. 

A Waste of Police Resources

(Photo: Every week, court officers at Bronx Criminal Court tell defendants lined up outside this window that the Bronx DA has declined to prosecute the cases against them. Stephen Nessen/WNYC)

And when cops like Claude O’Shea see arrests get thrown out over and over, they say it’s demoralizing.  He was a detective in the Bronx for more than 10 years.

“Whatever happens, happens. You know, I look at it like this:  If the witnesses don’t want to come forward and the DA doesn’t want to prosecute, I don’t live here in the Bronx.  There’s a good chance that I’m not going to be shot randomly by this guy again.  You just kind of get burnt out after awhile,” said O’Shea.

Last year, the Bronx DA’s office declined to prosecute more than 18,000 arrests by the NYPD, according to state data. Brooklyn and Manhattan prosecutors threw out an average of 5,300 cases each.

Eugene O’Donnell, a professor at John Jay College of Criminal Justice who is a former cop and prosecutor, said that means millions more dollars of police resources get tossed out in the Bronx than anywhere else. 

And with the limited resources this city has, he said the police can’t afford to make so many arrests that go nowhere.

"The NYPD, at the patrol level, is extremely thinly stretched,” O’Donnell said.  “They need every available cop to be on patrol as much as that officer can be on patrol.  Anything that takes a cop out of service takes them off the street.  They’re unable to answer calls. They’re unable to do routine police work that deters crime.”

And when a case is declined by prosecutors, cops can’t do anything about it. The defendant is released immediately, and the arrest is expunged from the official record, as if the incident never happened.

If the victim ends up changing her mind later and wants to cooperate, she’d need to make a fresh complaint with the police and they’d have to find the defendant and arrest him one more time. 

WNYC asked the Bronx DA’s office how many victims actually do come back after a case is declined, but the office never responded. 

Cops say most victims never bother to go through that process again. 

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Comments [18]

Brett from Chicago from Chi-town

I kind of feel like this story is a bit one sided. What's the Bronx DA's prosecution success rate as compared to other Boroughs? We all know that beat cops are stretched thin, but the DA's office and the public defenders office are also working an inordinate caseload as well.
Obviously, this policy is unusual and shows no appreciation for the nuances of crime fighting, but it's hard for me to believe that these were the best reasons the DA could come up with.

Aug. 23 2012 01:02 AM
Carlos from Bronx

MD from NJ, If I knew Ms. Chang she probably would have written about this ' a decade ago.' I imagine you have not lived in the Bronx and are looking in from the other side of 'the river.' I believe most of us have learned that 'dictators' are detrimental to democracy, yet we have had to deal with one in our own neighborhood. It is so simple: power corrupts and comfort blinds -we need a change. Trust me that I can give you a few real situations (several that I personally experienced) with the BX DA. They are currently holding 'cash' which they voucher-ed from one of my businesses over 4 years ago where we chased & caught the perp. To date, I never heard from the DA to go testify and bring my evidence (video & witnesses) & trust me -I don't hide when it comes to fighting criminals. "Live free or die." Now, it is a project to get my property returned and seems like the case was dropped. I can give you other incidents but I would be here a while ...Perhaps Ms. Chang would like to follow up on some of my cases.

Aug. 23 2012 12:40 AM
MD from NJ

Commenter Carlos C. writes that those critical of the perspective in this report must work for the DA. That reasoning would mean that those who think the issue was reported well must be friends and family of the reporter.

I think the reporter has done a couple of thorough reports in the past though I found this story one sided (possibly with the goal of making it more "headline news") in the sense that there was not reporting of how an accused would be impacted if the process to charge someone was dragged out longer, or how a case with little evidence would financially affect someone who was charged, or to what extent people doing the charging then dropping may have been originally motivated by something other than that a real crime was committed, or how and if those charged when there is not evidence might be forced to accept a plea bargain because they don't have the means to provide a strong defense.

The fact that the other boroughs have a lower drop rate may mean that they are over-charging people with crimes. We know how stop and frisk has been used and how race affects arrests. Indigent people who believe they are not guilty may be forced to accept plea bargains if they can't hire an attorney who can devote adequate time to defend them or risk a harsher penalty in a lost case. This is all related to the topic in the story but is not covered.

Aug. 22 2012 07:53 PM
Doug from manhattan

While the story was informative I was more than a little put off by the story leading with a story of female vs female violence but ended up closing with the generality that the victim is a "her" and the perp is a "him"

"If the victim ends up changing HER mind later and wants to cooperate, SHE’d need to make a fresh complaint with the police and they’d have to find the defendant and arrest HIM one more time"

Please lets keep the personal bias and opinion out of your reporting in the future. Its no better than idiot congressmen making off hand comments about the validity of rape claims as they relate to abortion...

Aug. 22 2012 04:21 PM
Carlos C. from Bronx

D Murphy, Bx Bomber & Kate, you must be related or work for Mr. Johnson and didn’t seem to read the article in its entirety because if you did, you would have noticed that “Manhattan and Brooklyn each see thousands more arrests than the Bronx.” The data proves the fact that “Bronx prosecutors have had the highest decline-to-prosecute rate in the city for 13 of the last 16 years, and state data shows that rate began climbing after Johnson took office as District Attorney in 1989.”
Monica, it is obvious who you work for and you must enjoy appearing like you do ‘a good job’ for the criminals whose cases get ‘dropped.’ You must take all the credit.

I believe it was EXCELLENT REPORTING and like howiestier says,” a decade late.”

I have been in business in the Bronx since about the same time that Mr. Johnson took office. I also do business in Manhattan and I have seen the difference first hand. I am very much in touch with my community. I see and talk to my customers and employees that have relatives or have themselves been victims of crimes. I used to live in the Bronx until a few years ago when I got disgusted at the level of apathy by a community. Everyone criticized the police commissioner recently for calling out our politicians to do more. I used to blame the police for poor work until I joined my local precinct as an auxiliary police officer. That is when I understood that although NYPD needs to improve their operation, the main problem is Mr. Johnson who got into office with the exaggeration and promotion of ‘wrongful arrests and wrongful prosecutions’ of minorities. He has become a ‘dictator’. I have a friend who is a detective in the Bronx who witnessed a case where the charge was watered down because the victim of a stab wound didn’t get ‘enough’ stitches. That is absurd – stabbing is stabbing. As a minority myself, I am appalled that we would vote a man like that into office to do such a lousy job. It is often said that ‘Two wrongs don’t make a right.’

Aug. 22 2012 10:30 AM
D. Murphy from Manhattan

The article misses the larger issue. Why on earth are so few cases initially declined in Manhattan and the other boros? Most modern prosecutors' offices carefully weed through the crappy cases brought to them by aggressive police agencies and either decline prosecution or reduce felonies to misdemeanors or violations. Aggressive screening is a hallmark of a good prosecutor. When I was a junior prosecutor in a major city 30 years ago, we "papered" or screened out cases religiously to make sure we ended up with VIABLE cases. That does not happen in Manhattan, where the DA's office's ECAB unit overcharges and uses the breadth of the criminal law to blundgeon the poor into taking pleas in questionable cases. 4 percent? That's ridiculous! Leaving aside the issue of Mr. Johnson's 24 hour rule, his office appears to be acting much more responsibly than his southern colleagues.

Aug. 22 2012 09:25 AM
Bx Bomber from NY, NY

Poor poor reporting. Borderline disgraceful. The Bronx does up front what other boroughs do behind the scenes. Every case that was non processed in 24 hours in the Bronx would be drafted in other boroughs, without a complainant, and then quietly dismissed after the defendant stays incarcerated or is subjected to numerous court appearances. It is the exact same result in other boroughs!! To indict the Bronx for actually holding victims feet to the fire is wrong. In Domestic Violence it is almost impossible to "force" cooperation. Many of the Non Processes are based on victims/witnesses, who do appear, and basically tell everyone to get lost! Theye are not "missing"-just very uncooperative. It is WRONG to push through a case when you have not been able to adequately interview a victim. It is unethical to hold someone in custody when you cannot draft an accurate accusatory instrument that will be signed and attested to. This one sided report clearly shows that the reporter/researcher has no clue about the volume of cases and the Bronx deals with and that in reality the Bronx District Attorney's Office, and Robert Johnson are doing the right thing. Anyione with half a brain would realize that.

Aug. 21 2012 09:56 PM
brad foster

It blows my mind that Linda Fairstein would be cited as an expert on this issue with no mention that she wrongfully prosecuted 5 juvenile boys in the central park jogger case that resulted in innocent boys gong to jail for years. There was no mention of her role in the central park jogger case, the false confessions coerced in that case or Ms. Fairstein's role in keeping those boys in jail after DNA proved they were not involved in the crime. She is a disgrace. Even Robert Morganthau disagreed with her after reviewing the case and dismissed it over her objection. Putting her out there as an expert on proper prosecution is a joke. It is lazy, sloppy reporting. I expect more from WNYC, Ms. Chang should be fired. This was the worst reported, one sided story I have ever heard on your station. This was worth of Fox News. Congratulations. Puts a new perspective on the Stanley Tucci ad I am listening to now.

A very disappointed listener
Brad Foster

Aug. 21 2012 09:40 PM
M. from NJ

I agree with commenter "Kate", below.

I also think that either the story is based on sloppy investigation or it is intentionally been presented in a one sided way to make it provocative.

Aug. 21 2012 08:22 PM
ROCKY WITH 16 SHOT GLOCK from TIMBUKTU

This is part of the reason why NYC is a cesspool. If you can't protect people, why would someone want to live there? Victim or not, the police and D. A. should actively arrest and prosecute any criminal or suspect if there is enough evidence. The victim should not carry any weight if there is enough evidence. I wonder what the rate of murder, robbery (especially armed robbery), drug arrests, etc. is for the Bronx. I say fire them all, all who don't want to arrest and prosecute according to the law and what the state of New York would have them do. We have to protect the citizens. This is INTOLERABLE!

Aug. 21 2012 07:51 PM
AG

Thomas - the Bronx DA is not on the same budget as the NYPD... that's a poor correlation. The DA doesn't answer to the mayor. This has to do with the Bronx DA's office... focus on that. You're off on the wrong tangent.

Aug. 21 2012 06:12 PM
Mark

Sorry but the domestic violence people have hijacked the issue. It's not all about that. Just last week in Jersey City the police charged a shooting victim with "hindering the apprehension of a criminal" when he refused to cooperate but before you get sentimental over his plight realize he just got out of prison for firearms offenses and was already involved with guns. I think law enforcement are just frustrated when people are getting shot in the street or in public housing and no one will talk. Neither the victim nor perpetrator in that incident were female or immigrant. Not every problem can be reduced to identity politics.

Aug. 21 2012 05:23 PM
ChrisOS from Washington Heights

Both Ms. Dula and Ms. Frenchik know what they are talking about and have a point. Domestic violence (DV)is a special case since victims so often want police intervention but may oppose arrest and most often do not support prosecution for various reasons. Fear of retaliation is most often cited, but research indicates that compassion for the abuser, succombing to his promises that he won't do it again, and pity for him, may be more common. As one participant in a study I conducted with colleagues comparing prosecution policies in DV cases in Brooklyn and the Bronx told us, the victim is in love with him and may believe him but prosecutors know better. Victims have a learning curve and may be seriously injured as they come to understand that DV is a repetitive crime. (See Rihanna.) Immigrants are especially likely to be wary of prosecution because they may be dependent on the offender, as are many women who share childcare, a home, transportation and income with their partner. It is true that most of the cases may be dismissed later in Brooklyn and Manhattan -- there is insufficient evidence to prosecute and the case times out. It is rare that victims change their minds from opposing to supporting prosecution during pendency of the case. During that time, however, the court can issue a protection order. If there is a second offense, more serious charges can be filed. In fact, our study found no clear difference in efficacy of the Bronx and Brooklyn policies and found higher costs to the court and DA's Office in Brooklyn -- it is expensive to keep a case going -- but that is because the Bronx policy offloads the costs to the PD. Officers have to go to the victim's apartment and try to get her to come in and meet with a DA within 4-24 hours so the case can go forward. When a victim does come in, she will often sign a waiver of prosecution -- a document that many prosecutors across the country ignore but Bronx prosecutors then decline to prosecute. In the Bronx, the ADAs do try to cajole victims to proceed with prosecution, and victims complain they feel badgered. It is a thorny problem for prosecutors of DV cases. There is no simple right answer that works. Nonetheless, the short time allowed in the Bronx for police to bring victims in to meet with a prosecutor and the automatic declining to prosecute if the police can't locate the victim does seem less than ideal. In one case in our sample, the police went to a victim's home, she did not let them in, and the case was DP'd. Turns out the victim was deaf and didn't hear the police. There are mistakes. There are also cases when an observant prosecutor sees that the victim is being coerced into signing the waiver and proceeds with prosecution.

Aug. 21 2012 03:03 PM
Kate

This story is ridiculously one-sided. No one from the defense bar or from a defense perspective is quoted. There is no mention in the entire story that people are presumed innocent (or, at least, are supposed to be presumed innocent) until they are proven guilty. You treat an arrest as though it is proof of guilt. And you treat the lack of a complaining witness who is willing to testify against the accused as somehow distinct from insufficient evidence to prosecute, which, I would argue, it is not.

Also, can we put these numbers in context please? The percentage of arrests that result in declined prosecutions may be higher in the Bronx because the absolute number of arrests in the Bronx (being such a heavily policed borough) is higher than in other boroughs. In that case, prosecutors would have a lot more cases on their hands and there would be good reason to separate out those that will take more work to prosecute, and that might not be as meritorious, given the complaining witness's reluctance to testify.

The story is also blaringly vague about what types of cases we're talking about here. There is a sort of insinuation that a lot of these cases are sex crimes, given who was quoted from the Manhattan DA's office. But I have a feeling the majority of these cases are domestic disputes that are notoriously complicated and difficult to prosecute. You quote one woman who didn't want to press charges against an attacker because of fear of retaliation, but the truth is there is a myriad of reasons why someone might refuse to cooperate with prosecutors, many of which might well raise doubts about whether the criminal case should be pursued.

I'll be interested to see what the second part of this story will bring. I hope you provide a more balanced perspective with the second half.

Aug. 21 2012 02:53 PM
Monica D. Dula from Bronx, NY

Last year, there were almost 79,000 docketed cases(that means arrests in the Bronx. So this idea that Almost no one was prosecuted needs to be refuted. As someone who practices law in the Bronx, it is that declining to prosecute is put in the context of the other boroughs. In Manhattan, many of their cases are dismissed because time runs out for the office to prosecute. You have requested the numbers on that. That doesn't happen in the Bronx. Because you provided lopsided coverage to this issue, you project the image that NO one is charge in the Bronx. That isn't true. You also should have requested from NYC Corporation Counsel how maya lawsuits for malicious prosecution, wrongful arrests and wrongful prosecutions are filed per borough. Tht will be more telling. BUT JUST TELL THE WHOLE STORY.

Aug. 21 2012 01:20 PM

This piece is welcome but a decade late; Johnson's long been running his personal fiefdom-- hostile and uncoooperative with the press, yet he's gotten away unchallenged. That' because Diallo or a quaint feature on murder burgers aside, the media disregards what goes down north of 125th Street. He should've been run out on a rail alongside that boob Freddie.

Aug. 21 2012 12:37 PM
Lisa Frenchik from Bronx

What is not mentioned in the above is that the South Bronx is home to one of the largest African immigrant communities in NYC. A recent article out by the Women Under Siege Project discusses how immigrant women rarely come forward due to legal status in the US. This is only one issue. Others include language, where often African immigrants are trilingual, but do not speak English, and cultural barriers, where staying in the community outweighs any notion of individuality, and communication is often encapsulated in idiomatic expressions only known to insiders. My organization, Sauti Yetu Center for African Women, works with victims of sexual and domestic violence. There is no doubt that a "four hour window" is not enough time to aid victims of assault in the immigrant community to come forward. This "special policy" is particularly harmful to immigrants.

Aug. 21 2012 08:17 AM
Thomas Pluck

Bloomberg could perhaps divert some of his stop & frisk forces to properly fund the Bronx D.A.'s office. Stop & frisk is a revenue generator. Actually protecting citizens, that costs money.

Aug. 21 2012 08:16 AM

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