Center on the Administration of Criminal Law, New York University School of Law

February 07, 2012 | New York University School of Law

 

Thank you to Rachel Barkow for that generous introduction, and to NYU Law School for inviting me to speak here today.  It is truly a pleasure to be here with you.  The Center’s focus on creating opportunities for prosecutors, defense attorneys, policy makers, and academics to come together to think about our criminal justice system is tremendously valuable for all of us who work in this critical area.  This Center makes that collaboration possible.
 
Today I want to share with you my thoughts about the challenges faced by the 21st century prosecutor’s office, and then take your questions.   The Manhattan District Attorney’s Office is unlike any other prosecutor’s office in the country in terms of the breadth, variety, complexity, and scope of cases we handle.  Street crimes like rape, murder, and gang violence, which confront any urban prosecutor’s office, comprise a substantial part of our docket.  As the financial capital of the country – if not the world – we also prosecute a wide range of white-collar crimes, including international money laundering, cyber crime, and securities fraud.  
 
The overall volume of cases that come into our office is extraordinary – about 100,000 new cases each year.  To give you a point of reference, that is more criminal cases than the entire DOJ handles annually, nationwide.  That mix and volume, along with the speed with which cases come in, present us with unique challenges, but also give us unique opportunities.
 
As District Attorney, I assess every prosecution strategy by asking two questions:  Does it make us safer, and is it fair?  Those questions are ones that rest on our longstanding commitment as prosecutors to seek justice, not just convictions.  
 
Two years in office, or perhaps I should say 200,000 cases later, I appreciate better the challenges of achieving both goals.    The threats we face today are in many ways more daunting, and the stakes ever higher, than the threats of the past.  In just the past decade, we have seen our nation mobilize in an unprecedented way against the threat of domestic terrorism.  We saw Ponzi schemes the size of great corporations and small economies.  But at the same time in this new world, we saw new opportunities:  modern technologies and new approaches that enhance our ability to detect the guilty and exonerate the innocent.  And I think we’ve seen as well a continuing evolution in the role of the prosecutor, one in which the prosecutor has increasingly become a community partner, in addition to playing the traditional role as enforcer of the laws.
 
Let me give you a few examples of how these larger trends affect our daily work.
 
One of the most dramatic innovations affecting our work has been  the advent and advances in DNA technology.  In April 2010, I created a Forensic Sciences/Cold Case Unit to lead our work in this area.  Our prosecutors in this group use state-of-the-art forensic techniques to solve recent crimes, as well as crimes committed 10, 20, 30 and 40 years ago that had been all but abandoned.
 
A growing DNA database of persons convicted of enumerated crimes sometimes provides a hit, identifying the source of a biological sample from a rape kit or crime scene.  But even if the perpetrator of a crime has never been arrested or tested, modern DNA technology, in which definitive results can be extracted from ever-smaller samples, allows us to compare biological samples across crime scenes, even extending into other jurisdictions, to establish pattern crimes, and ultimately to apprehend the perpetrator.
 
Let me explain why this matters to me, and should to you.  In 1993, a 16 year old girl was choked and sexually assaulted as she entered her apartment building on the Lower East Side.  Five years later in the same part of Manhattan, a 26 year old teacher was raped and robbed in her apartment building.  And in 2004, a 15 year old girl in Harlem was grabbed from behind in an elevator, dragged to an emergency stairwell, and toppled down three flights of concrete stairs as she bravely fought off her attacker, who robbed and attempted to rape her.
 
What do these cases have in common?  All three attackers left their DNA at the crime scenes, and for years remained un-apprehended for those crimes.  Years later ― during my time in office ― all three went on to commit and were convicted of new, serious felonies.  Only then, when their DNA was taken as a result of the new felony convictions, were we able to match them to the old, cold cases.  Sadly, all three had also been charged, and convicted, of misdemeanor offenses in the interim.  But because our state law didn’t permit us to take their DNA for the misdemeanors, we didn’t solve the old cases until they had committed new felonies.  That doesn’t make any sense ― had we been able to take their DNA for the misdemeanors, we would have solved the old cases sooner ― and brought justice and closure to the victims ― and prevented the future crimes from occurring.
 
It is why I have strongly supported the expansion of DNA collection to include all crimes.  The Governor has given his firm support to this important public safety measure, and included an all-crimes DNA provision in his recent budget bill.  I am happy to report that the State Senate passed the bill just last week, and I am very hopeful about its prompt passage. 
 
DNA testing ― as we all know ― is also an indispensable tool in exonerating the innocent.  But we’ve also learned that 21st century technology can’t always answer the tough questions that prosecutors face.  To that end, I created a Conviction Integrity Program in my office, which I tasked to develop front-end protocols to reduce the risk of erroneous charging and wrongful convictions, and to evaluate post-conviction claims of actual innocence.  We have made real strides on the first goal – putting in place front-end training procedures and checklists that focus on one-witness identifications,  on the circumstances surrounding confessions, on the questioning of  confidential informants, and on the rigors of forensic evidence preservation.
 
Just two months ago, we had an opportunity to share our work in this area with prosecutors from around the country at a conviction integrity conference hosted by NYU.  I believe these protocols and checklists are valuable not just to our office, but may help serve as templates for other offices around the country.
 
The second task of our Conviction integrity Program is to assess post-conviction claims.  This is often a difficult and pain-staking process, because while much of the national debate on this topic has centered on DNA exonerations, we actually have relatively few such cases.  
 
Where biological evidence may be probative of guilt or innocence, we are generally quick to have it tested, to share the results with defense counsel, and to take immediate action if it suggests the wrong person has been convicted of a crime.  Far, far more common, and much more challenging, are claims of innocence in convictions from years ago or even decades ago, where the accuracy of an identification or the credibility of a witness suddenly becomes the subject of renewed scrutiny.  In such cases, we now review the case with fresh eyes to determine whether further investigation might help us determine whether there has been a miscarriage of justice.  In a number of cases, we have launched an extensive re-investigation finding new witnesses and re-interviewing old ones, and presented the results to a team of some of my most experienced attorneys, all in order to address in each of these cases that simple question I posed at the outset: was the outcome of the trial fair? 
 
Another essential initiative is fighting crime on new frontiers, frontiers that have required us to develop innovative law enforcement tactics.  A primary example is cybercrime.
 
The internet is the crime scene of the 21st century.  It gives the criminally-inclined a dangerous set of tools to work their way into our personal lives, and to threaten us on an individual and institutional basis.  Cybercrime and its close cousin, identity theft, are among the fastest growing crimes in the country.  While violent crime has declined in NYC, prosecutions in Manhattan for cybercrime and identity theft have trended in the opposite direction and have gone up at an alarming rate – about 50% over the past 5 years – a trend that is mirrored in national statistics.
 
To combat this threat, in 2010 we created the Cybercrime and Identity Theft Bureau.  This unit provides supervision and expertise for long-term national and international cybercrime investigations, as well as the 200-300 new ID theft cases that come into our office each month from patrol arrests on the street.  Some of these street arrests lead to long-term investigations and prosecutions of cybercrimes and frauds committed by larger national and even international criminal organizations.  A few of the cases we have brought since I took office illustrate the challenges:
•         In late 2010, 36 individuals were indicted for their participation in an advanced, international cybercrime and ID theft scheme.  Our federal partners in the U.S. Attorney’s Office also indicted 37 individuals who were part of the same scheme.  The defendants were from the Russian Federation, Ukraine, Kazakhstan, and Belarus.  They were recruited through social networking sites and newspaper advertisements to open bank accounts in the U.S. for fraudulent purposes.
 
And last December, 55 defendants were indicted for a widespread cyberfraud scheme run by an organized group of thieves.  This conspiracy relied on corrupt employees at banks, a non-profit institution, and other entities to steal and traffic in the names and personal identifying information, and financial account data of victims, including customers, donors, and tenants.
 
We have indicted many other significant national and international cyber crime cases, and you will see many more from our office in the months to come.
 
These cases are worth noting because, as with DNA testing, our access to state-of-the-art technology is crucial.  We are one of the few local prosecutor’s offices in the nation that has a robust internal forensic lab and substantial in-house expertise in computer forensics.  This allows us to investigate cases effectively and efficiently, and to follow our own priorities, as opposed to priorities of another law enforcement agency.
 
Second, many of our cybercrime and ID theft investigations begin as local arrests that have nothing to do with cybercrime.  For example, in one case, we investigated a pattern of thefts from lockers in a gym ― a straight-forward street crime.  Only after investigation did we learn that the personal information culled from those thefts was being used in a large-scale identity theft ring.  We proceeded to prosecute this broader, more serious crime and conspiracy.  
 
The only way to detect these connections is to sift through the many individual cases that come into our office, and that is in fact what we do.  Every morning, someone from our cybercrime bureau reviews every case that came through our complaint room the day before.  Where the allegations suggest that ID theft may be a motive, or where we suspect that cybercrime may be involved, the bureau explores further and looks for connections to other, seemingly unrelated cases.  The work is painstaking, but it allows us to make good use of our unique vantage point as the local office responsible for the 100,000 street crime cases that come through our doors each year.
 
Third, we increasingly see a link between traditional street gangs and cybercrime and ID theft.  Criminal organizations recruit individuals to steal personal identification information, and sell the data and commit other financial crimes over the internet.  These are not exclusively white collar criminals.    When we execute search warrants in cybercrime cases, it is now not uncommon for us to seize not just hard drives, but hundreds of thousands in hard cash, and weapons, along with encrypted data files, and some of the defendants we arrest have prior convictions for narcotics and violent crime.  So in this regard, we are learning that the new frontier of cybercrime is quickly becoming comfortable terrain for individuals engaged in the classic street crimes that our office has been prosecuting for decades.
 
Terrorism and interruption of terrorist financing:
Another new frontier for us is the use of our state laws and intelligence gathered from local investigations in the fight against terrorism – an area that historically has been the province of our federal partners.  One of my first steps as District Attorney was to hire a counter-terrorism specialist, Mike Tiffany.  He had been a key figure in the efforts of our city and country to keep us safe from terrorism, as commanding officer of NYPD Intelligence after September 11, 2001, as a member of the Senior National Intelligence Service, and as an Assistant Deputy Director responsible for Homeland Security planning and procedures.  
 
Now Mike is working with us.  With Mike’s assistance, we are developing an integrated approach to work with the NYPD, FBI, foreign intelligence services and the Joint Terrorism Task Force on terrorism issues, because defending against this danger requires us to be coordinated, proactive and to look beyond New York’s borders to identify threats. 
 
Any meaningful counter-terrorism strategy must attack terrorist funding sources because terrorists require funding to operate.    And so, our office is tackling the global financing of terrorism and proliferation.  A substantial percentage of the world’s trade, commerce, and finance passes through financial institutions in New York.  We have unparalleled access to financial data and intelligence, and we are using this information to identify and prosecute financial institutions that are exploited by dangerous nations, organizations, and individuals ― particularly those sanctioned for ties to terrorism ―  in a manner that violates our laws.  
 
Our systematic review of routine financial reports and suspicious activity reports, or SARS,  for indicators of potential wrongdoing is unusual for a local prosecutor’s office.  It is laborious but it pays off, not just in enhanced security, but in financial terms.   In the past several years, we announced settlements with Barclay’s Bank in the UK, Lloyds, TSB and Credit Suisse for their mishandling of wire transfers and records on behalf of countries subject to U.S. sanctions, including Iran, Libya and Sudan and others, all related to money movement through the New York banking system linked to terrorist financing.  And without going into detail, I can say to you that our office, along with our counterparts at the Department of Justice, have more such cases to come in the months ahead.
 
All told, among the three banks they have forfeited almost $1.2 billion for their illegal conduct, with half of that returning to the City and State of New York.  That is close to $600 million in penalty payments coming in to the coffers of the city and state, $400 million of which has come in the past 2 calendar years.  My annual budget is $80 million; if you can find another agency that has returned multiples of its budget in that time frame, please let me know. 
 
But the real impact of these cases is not in the monies we recover.  Those cases have done more to put teeth into global sanctions than a mountain of political posturing, by forcing the international banking community to understand that violating U.S. sanctions and New York law will carry a very real, and heavy price.  If we are going to impose  sanctions to reduce terrorist financing to make our country and city safer, then the sanctions must be enforced.  In 2012, this continues to be among our highest priorities, and heaviest responsibilities.
 
Intelligence-driven prosecution:  One of the initiatives that I am most excited about is our Crime Strategies Unit – a 21st century law enforcement strategy which I believe is unique among local prosecutor’s offices.  
 
Effective crime-fighting requires us to have a clear understanding both of the crime issues facing our communities, from violent crimes to quality-of-life issues, and of who is committing these crimes.  The mission of the Crime Strategies Unit is aimed directly at this challenge:  to harness the collective resources of the Office in order to develop and implement intelligence-driven prosecution strategies that  identify  and address crime issues and target priority offenders.  
 
One of the key goals of the Unit is to make more effective use of the vast amounts of information from the 100,000 plus cases that come through our office each year.  Until now, the information we acquire as we investigate and prosecute those street crime cases has never been centrally analyzed, let alone  organized.  It was only through serendipity that we learned that the defendant in one shoplifting case was the suspect in another homicide, cases typically handled by different prosecutors in different parts of the office.  Now, our new Crime Strategies Unit is finding innovative ways to make this information available throughout our office, when and where it is needed.  Rather than store information on 10,000 legal pads, in the offices of 500 attorneys, we are plotting data on sophisticated maps that visually depict criminal activity based on various identifiers such as gang affiliation, type of crime, and possession of a weapon.   These tactics allow us to uncover potential links between cases, and to anticipate and see crime patterns early on, so we can address them pro-actively.
 
We have also put into place an Arrest Alert system managed by CSU, which sends real-time alerts to prosecutors when priority defendants ― those offenders who are disproportionately responsible for driving violent crime ― enter the criminal justice system again, even if for less serious offenses.  Through this alert system, charging decisions, bail applications, and sentencing recommendations can take into account that defendant’s impact on criminal activity in his community.
  
Another key to our Crime Strategies Unit is the partnerships we are building with the NYPD, other law enforcement agencies, and the communities we serve.  We have divided the police precincts of Manhattan into five geographic areas, with a senior CSU prosecutor assigned to focus on the criminal activity in each of the areas.  These ADAs team with NYPD officers in their area, investigators, intelligence analysts, and community affairs liaisons, to improve the timely and accurate sharing of criminal intelligence throughout the DA’s Office and among all law enforcement agencies.  
 
This strategy works, and let me give you one case that proves the point.  Since I took office in January 2010, 39 people have been shot to death in Harlem.  Young people in this community have been surrounded by guns, gangs, and violence on their streets, and dismantling the groups behind this violence has been a top priority of mine.  
 
One of these groups was a violent criminal street gang centered around West 137th Street in Central Harlem, in the shadow of Harlem landmarks like the Abyssinian Church.  Following a lengthy investigation ― using all investigative tools at our disposal, like wiretaps ― all defendants ultimately were convicted of or pleaded guilty.  As we proved at trial, the members of this crew used violence – shootings, beatings, and robberies – to protect their drug trafficking business.  They also recruited children under 16 years of age ― boys and girls ― to hold and transport firearms, to engage in gang activity, and to transport and sell crack cocaine.  The damage inflicted on the community was immeasurable.  The sentences imposed on the gang leaders were appropriately severe, while the sentences imposed on the younger offenders were appropriately measured and aimed toward rehabilitation.  Our challenge then was to help the neighborhood hold the ground we took with this case, through community restoration and engagement.   
 
How do we know this strategy is working?  In the roughly 2 years before the indictment, there were 19 shootings with shooting victims in that immediate neighborhood in Harlem.  And that is what drew my focus to the gang in the first place.  But, in the year since the indictment and today, no one has been shot.  We see the same pattern emerging in the aftermath of other gang drug and gun prosecutions we have undertaken, and it will serve as the model for our future work.
 
Crime prevention:  Finally, I’d like to end on what I believe to be an extraordinarily hopeful note.  Fighting crime is surely the core responsibility of any prosecutor’s office, but I think we can all agree that a crime prevented is better than one prosecuted.  The sophisticated 21st century technology used by CSU is one tool for anticipating and preventing crime, but we are also using a much more old-fashioned technique – engaging the children in our communities.  
 
Using money seized from drug dealers, the Manhattan DA’s office has partnered with the NYPD and the Police Athletic League to hold a basketball training camp on Friday and Saturday nights for kids aged 12-16 in Central Harlem.  With asset forfeiture money, we hired Pro Hoops, one of the country’s premier basketball training programs, responsible for training some of the biggest names in the NBA, along with promising school-age players, to run these training sessions.  The program’s coaches include pro and college ball players, along with members of the DA’s office, PAL, the NYPD, and the DEA.
 
Just last week, I spent Saturday night at a Pro Hoops tournament held in the Harlem PAL center.  I stood alongside NYPD Chief of Community Affairs Phil Banks, Wilbert Plummer from the DEA, and Assistants from my office, in a crowd of hundreds of children and their families.  The kids played hard, learned to work as a team, and spent their weekend night in a safe and fun place.   So we are helping them at the point that is best for them, best for their communities, and best for my office.  While I am truly proud of our successes in prosecuting crime – of bringing to justice defendants like the members of the 137th Street gang – I know we would all rather sit in the bleachers of a gymnasium watching an intense Saturday night basketball game than sit in the back row of a courtroom for a sentencing proceeding.  And in the months ahead, as we operate and open similar programs on the Lower East Side, in East Harlem, and Washington Heights, I hope we can continue to tip the balance towards prevention, not just enforcement. 
 
Thank you.