New York State Bar Association New York Criminal Law Newsletter, Summer 2007, Vol. 5, No. 3
Message from the Editor
We are pleased to present in this issue an interesting article by a leading criminal law practitioner on the important topic of felony murder. David Blackstone advances the position that there is almost always a reasonable doubt in a felony murder case and calls for the state legislature to revisit the felony murder statute. I am sure our readers will gain some valuable insights
from Mr. Blackstone’s detailed discussion.
A little more than one year after Judge Samuel Alito assumed his position on the United States Supreme Court, we are also providing an assessment of both the man and his role in some 17 criminal law decisions in which he has participated. I believe this analysis will be both interesting and informative and will provide clues as to possible positions which Judge Alito may take in the
future in criminal law cases.
We congratulate our new Section officers and we wish Jean Walsh, James Subjack and Marvin Schechter the best of luck in their new positions. We also wish to thank outgoing chair, Roger Adler, for his years of service and his implementation of several successful innovations with the respect to the operation of our Section. I also wish to draw the attention of our readers to
several important new decisions which have been issued from both the United States Supreme Court and the New York State Court of Appeals. These cases are discussed in detail in the Section dealing with those courts.
As I write this message, I have just learned of the dismissal of all charges against the Duke lacrosse players and have listened to the comments of the North Carolina Attorney General regarding his investigation and ultimate disposition in this matter. This case will surely go down as an example of some of the worst prosecutorial handling of a criminal case and should remind us all of the necessity for both vigilant defense and the ethical responsibilities of prosecutors to fairly investigate and prosecute cases. All of us in the criminal justice system have a responsibility to do what is right and just and hopefully
the tragedy of the Duke lacrosse case will never happen again.
I again thank our membership for their support of our publication and I continue to encourage comments and submission of articles for possible publication.
- Spiros A. Tsimbinos
Why There is Almost Always a Reasonable Doubt in a Felony Murder Case
By David Blackstone
On Wednesday, January 30, 2007, a jury acquitted three defendants, Roneck Wyatt Earp, Julian Enoe and Jayson Enoe, totally exonerating them and convicting a fourth defendant, Larry Mnyin, of a skimpy Class C felony of “Gang Assault” in a murder trial before Justice Michael Obus in Manhattan Supreme Court. The absolved Roneck Wyatt Earp, whom I represented, then cautiously walked the walk to freedom from the defense table past the guardrail into the embracing arms of Tiffany Clark, his fiancée who was waiting for him in the
courtroom as the verdict was read. Roneck and Tiffany then quietly departed together from the Halls of Justice at 100 Centre onto the beckoning street.
The defendants had been incarcerated on the murder charges at Rikers Island, awaiting trial for eighteen months. After a prior hung jury, and a subsequent one-month trial, three of them at last obtained their “pass to freedom” while the convicted fourth, the most deeply implicated, pretended to be seriously displeased about the result. Larry Mnyin was convicted of Gang Assault in the Second Degree and was eventually sentenced to ten years’ imprisonment. The minimum sentence he could have received was seven years in prison and the maximum was fifteen years.
I submit that there is almost always a reasonable doubt in a felony murder prosecution, and the four defendants tried before Justice Obus and a jury were charged with that crime. Under New York’s felony murder statute (Penal Law Section 125.25(3)), anyone involved in a robbery, kidnapping, etc., no matter how minutely and disconnected from its commission, can be convicted of Murder in the Second Degree (meaning 15 years minimum to a mandatory life sentence), even when the victim, using his own unlawfully gotten gun, accidentally shoots and kills himself in the course of a struggle with one of the participants in the predicate crime. Such was the convoluted state of affairs in People v. Roneck Wyatt Earp et al., which unfolded before the jury in Justice Obus’s Manhattan courtroom.
It was just four ounces of Purple Haze (“Piff”) that Larry Mnyin, in town from Philadelphia, Pennsylvania, sought to buy at the drug “spot” on West 151st Street in Manhattan. He was planning to purchase the weed for $1,600 from Jayda, who had a “proprietorship interest” in the location. On August 25, 2005, Larry Mnyin, with Julian Enoe at the wheel of a borrowed silver limo bearing Pennsylvania plates, pulled up to brother Jayson Enoe’s house in the Bedford-Stuyvesant section of Brooklyn for a family reunion before proceeding with the “buy” which was later planned up in Harlem. Coincidently, childhood buddy Roneck Wyatt Earp was already there with Jayson. Roneck appeared behind the wheel of his fi ancée’s brand-new blue Honda Civic bearing New York plates. Larry Mnyin apparently believed driving through Harlem in a car with New York plates would avoid police scrutiny. Therefore, the foursome drove together in the Honda to the drug spot with Roneck seated in the rear passenger seat just along for the ride. The nineteen-year-old did not have a driver’s license.
The West 151st Street drug spot had been successfully camouflaged from the 30th Precinct one block away since the start of spring. Its operators included Cuts, D-Lo, Jayda, Mic-ese, and D Jones who took advantage of an abandoned building’s scaffolding at number 518 off the corner of Amsterdam Avenue, three or four women seated in beach chairs who were planted for cover, a few of the women’s children and four or five men (including the principals of the drug spot) playing poker at a card table on the sidewalk beneath the scaffolding. The Honda, driven by Julian Enoe, pulled up and parked directly underneath the scaffolding. Mnyin reached Jayda by cell on Jayda’s walkie-talkie. Jayda told Mnyin that he was in the Bronx, but that his “man” D Jones was at the card table playing poker with Cuts and D-Lo and could “do the deal.” D Jones then approached the Honda and negotiated the deal. Larry Mnyin, trusting Jayda’s word, gave D Jones $1,600. D Jones replied, “I’ll be back in a couple of minutes with the four ounces of Piff.”
Over two hours passed and Larry Mnyin was still seated in the Honda with his buddies waiting for delivery of the merchandise. Roneck Wyatt Earp became impatient because he was very late picking up Tiffany at her midtown Manhattan workplace. Larry Mnyin kept asking Cuts and D-Lo, who were still playing cards, “Why you trying to burn us?” Cuts told Larry Mynin, “My man is coming, chill.” D-Lo called D Jones on D Jones’s Nextel walkie-talkie and told him “Hurry up, these guys think we’re jixin’ them.”
Finally, D Jones comes strolling up 151st Street from Amsterdam Avenue holding a large black plastic bag containing 100 percent fake “weed” and handed the plastic bag to Larry Mnyin, who was then standing underneath
the scaffolding, stating to him as the merchandise was handed over “This is what you came for.” Larry Mynin, who had been in the business for at least ten years, just took a whiff and told D Jones, “This is beat, give me my money back.” D Jones, who had a cannabis blood level so high he could hardly stand, backed up and said “No, this is yours, keep it.” Larry Mnyin went for D Jones’s right pants pocket to get his money back. Roneck tried to assist but D Jones pushed Roneck away. D Jones and Larry Mnyin in the tangle both entered D Jones’s pocket at about the same time and emerged holding a fully operable, loaded and cocked .25 caliber semi-automatic pistol that accidentally discharged in the struggle, infl ecting a single gunshot wound three inches below D Jones’s right
armpit and resulted in his tragic but accidental death.
Mnyin and his buddies sped away from the scene in the Honda. In the rear seat for unexplainable reasons was the bag of fake weed and D Jones’s .25 semi-automatic. Julian Enoe, driving in the getaway, took the FDR drive heading back to Brooklyn. Just before they heard the police sirens, Larry Mnyin tossed the gun out the car window. Within 15 minutes of the shooting, all four of them were apprehended and arrested at 96th Street and the FDR drive.
Lead Detective Kassim Williams from the 30th Precinct and Detective Joseph Litrenta from Manhattan North Homicide conducted the investigation. They
quickly learned from interviews of unreliable sources—including D-Lo, Cuts and D-Lo’s domestic partner, Taffanie Mars, who was sitting in one of the beach
chairs during the shooting—that somebody from the Honda screamed, “Pop the trunk” as the tussle began. Additional witnesses from the drug spot came forward to claim that D Jones was actually put in the trunk of the Honda or that the trunk of the Honda was opened or that D Jones was put inside the back seat of the Honda or that the car door rear driver’s side was opened.
Veteran homicide prosecutor Eugene Hurley was assigned to the case. He was determined to find a way to prosecute all four defendants on a murder charge. Accordingly, the defendants were arrested and indicted for a felony murder on the theory that all of them attempted to commit the crime of kidnapping, in the
course of which D Jones died accidentally with his own gun, with his own finger on the trigger. The defendants were each assigned an experienced lawyer. Larry Mynin got Tom Dunn; Julian Enoe, David Perlmutter; Jayson Enoe, David Touger; and Roneck Wyatt Earp, me (David Blackstone).
The first trial in May 2006 was flawed from the outset because the defense attorneys in an incredible miscalculation allowed a liberal Acting State Supreme Court justice to be seated as a juror. That jury hung 11 to 1 for acquittal, the holdout for conviction being the liberal Acting State Supreme Court justice.
In the second trial the defense made no such mistakes. The prosecution put on its civilian witnesses, mostly members of the drug spot (and a few innocent bystanders). Larry Mnyin testified for the defense. The evidence of an accidental shooting was overwhelming, based on the ballistics evidence that no live round from the magazine entered the .25 semi-automatic’s chamber after the first bullet was discharged (indicative of a struggle interfering with the rearward movement of the slide), no blood in the trunk or back seat of the impounded Honda despite evidence that the deceased profusely bled, and a bullet entry wound—two inches below the right arm-pit—and a track of the wound through the body downward at a 30- to 45-degree angle that is inconsistent with an intentional shooting and consistent with a struggle and an accidental weapons discharge. After one full day of deliberations, the jury cut Roneck Wyatt Earp, loose, along with brothers Jayson and Julian Enoe and acquitted Larry Mynin of murder and attempted kidnapping but convicted him of Gang Assault in the Second Degree.
This brings me back to the topic why there is almost always a reasonable doubt in a felony murder case. It is an unmerciful strict liability criminal statute that ignores authentic culpability. Under the felony murder statute a participant in the predicate crime is guilty of murder even if death was accidental, and the participant played no part in the accident. That scenario is a hard sell to a Manhattan jury. Perhaps the time has come for the New York State Legislature to re-visit the felony murder statute and interject an element of fairness to an unusually harsh statute.
David Blackstone is a practicing criminal lawyer in New York City. He has tried to conclusion more than 45 murder cases and served as a New York State Deputy Capital Defender. He is a graduate of Columbia Law School and is a member of several Bar Associations.
A Criminal Defense Attorney in a Murder Case Defends His Position
By Dave Blackstone
New York State Bar Association New York Criminal Law Newsletter, Spring 2006, Vol. 4, No. 2
In January 2005, I tried a murder case in Manhattan Supreme Court before Justice James Yates and a jury; the jury acquitted the defendant of all the charges. A few moments later the defendant emerged from the courthouse on to 100 Centre Street free and liberated and accompanied by his ecstatic family. He had been incarcerated on Rikers Island on the murder indictment awaiting trial for over two years.
I am not new to defending mostly indigent defendants on murder charges and have been a member of the New York County Homicide Panel for about 30 years. Panel members are private practitioners who are contracted by the city on a rotation basis to handle murder cases at so-called semi "Pro Bono" rates. Over these 30 years I have tried about 45 such cases to conclusion—a likely record. Therefore, the reaction I subsequently received after that trial from almost all the people with whom I am acquainted (and who are unfamiliar with our criminal justice system) was predictable.
When I entered the lobby of my Manhattan Upper East Side apartment building, I met a neighbor, a wealthy civil lawyer specializing in trusts and estates, and told him of my victory. He asked me with a straight face, "Dave, tell me, was your client guilty?" I was impatient and replied, "How the hell do I know? I only try the freaking case."
For inexplicable reasons, it appears that many believe that "ultimate truth" exists and is ascertainable in every murder indictment; that for every count of a murder indictment, guilt has already been divined. That is, either the prosecutor already knows the truth that the defendant is guilty, that truth is ascertained at a trial in which the defendant is found guilty, or that truth of the defendant's guilt is determined when the defendant pleads guilty.
Conventional wisdom is that the defendant confidentially tells the lawyer, at first, that he or she is guilty of the murder. Then the lawyer and client map out artificial defenses to "beat the rap." This scenario is a misconception. When a defendant recognizes that he or she has been "nailed" on a murder charge, and the defendant's lawyer, after presumably studied evaluation and investigation, agrees that the guilt to a high degree of certainty may be established before a jury based on his analysis of the People's evidence, then the defendant frequently pleads guilty to the best deal available. The guilty plea happens "later" rather than "sooner," as zero hour for trial approaches about two years after indictment when the prosecutor's "final" plea offer is conveyed. Usually though there is not much really known about the People's case because under New York's discovery rules (CPL Art. 240), the prosecution is entitled to withhold production of much of its evidence – the weak and/or the strong – until the trial starts. (See CPL Sec. 240.45(1)).
"Those observing from the outside frequently believe that it is morally reprehensible for defense attorneys to remain on a case knowing that the defendant's position is false, and that guilt is as clear as a ringing bell."
However, truth is not a property of a defendant's guilty plea. When a defendant receives a much lighter sentence by pleading guilty to a lesser charge—such as Manslaughter with 10 years flat—than he or she would receive upon conviction of murder after trial—life with or without parole for Murder in the First Degree or life with a minimum of 25 years for Murder in the Second Degree—the guilty pleas merely reflect, irrespective of guilt or innocence, that the defendant has been checkmated by a system of criminal justice that drastically punishes those defendants who will not risk (with "Monte Carlo" calculations) having their murder case brought to trial, and then losing it.
Conversely, defendants, irrespective of truth or falsity, may present their attorney with an intractable defense, staking out a "position" with respect to the allegations. Under these circumstances many individuals, peering into our criminal justice system from the outside, believe that defense counsel really "knows" whether the defendant's "position" is true or false. Those observing from the outside frequently believe that it is morally reprehensible for defense attorneys to remain on a case knowing that the defendant's position is false, and that guilt is as clear as a ringing bell.
Here are some elementary questions for individuals who are so self-righteous. Under what conditions does defense counsel know that a represented client's position is false and that the defendant is guilty? Does defense counsel know whether the prosecution's witnesses are lying or mistaken? Does defense counsel know that the defendant's signed confession was voluntary? Does defense counsel know that the defendant was sane or acted under a form of diminished capacity at the time of the murder or that the defendant's defense or alibi importunations are false? Should defense counsel not proceed further when DNA evidence incriminates his or her client without consulting a DNA expert retained by the defense? When a Medical Examiner determines that a baby's cause of death was "Shaken Baby Syndrome" perpetrated by the father who last held the child, should defense counsel not investigate to determine whether some other care provider previously mishandled the child? What about the many problems that exist in a murder indictment, which are elusive and present hard, even abstruse, answers or nothing definitive at all? For instance, was the defendant in a murder indictment "reckless" and "depraved" in the vehicular accident which caused death, or did the prosecutor indict from the spacious latitude afforded by the definitional language of the Penal Law, or the amorphous standards, if there are any, set by the District Attorney's office?
"[T]here are enormous existing flaws and injustices in even the fairest systems, including our own, in which truth may not be easily divined or defined at all."
I wonder whether the well-heeled trust and estates lawyer I met in the lobby of my apartment building following my acquittal knows a prosecutor who convicted someone of murder and sent that defendant away to a penitentiary for life, and whether that well-heeled lawyer would ask the prosecutor if that convicted defendant was innocent, or would he just congratulate the DA on his public service?
Does that trust and estates lawyer actually think that the only inmates wrongfully confined for life for murder in a New York State penitentiary are those who are subsequently exonerated by Barry Scheck and Peter Neufeld's DNA Innocents Project? Or realistically, are there many convicted defendants serving life in prison for murder who are divinely innocent and have been convicted on shabby, flimsy and false evidence that will probably never be acknowledged?
Under the United States Constitution everybody—except the government's designated "terrorists" and "unlawful combatants"—has an inalienable constitutional right to effective, zealous legal counsel though every stage of the litigation including the trial in which the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt. Otherwise the defendant supposedly should be found not guilty. Our system of criminal justice will come to a screeching halt if defense attorneys engage in a Talmudic exegesis about the "truth" and relieve themselves from their constitutional obligations to represent their client whenever they arrogate to divine the "truth" for themselves.
The legal intelligencia in the USA tell us that our system of criminal justice is one of the best in the world, and I personally would not swap it in a thousand years for the perverse so-called justice of Hitler, Stalin, Sadam and every other ruthless and lawless regime that has existed throughout the ages and permeate throughout the globe today. However, there are enormous existing flaws and injustices in even the fairest systems, including our own, in which truth may not be easily divined or defined at all.
So do not be condescending and so skeptical of your local criminal defense attorney. Someday, perhaps, you, a member of your family or a close friend may need that attorney to protect your position, whatever it is, as a defendant in a criminal indictment, possibly even one which is murder.
Dave Blackstone is a criminal law practitioner with offices in Manhattan.
New York Times Letter to The Editor by David Blackstone dated New York May 12, 1983 -
Please Click Here to the Letter
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