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Prosecution of Innocents


This week's Daily Record column is entitled "Prosecution of Innocents."

A pdf of the article can be found  here and my past Daily Record articles can be accessed here.


Prosecution of Innocents

I came across an interesting case last week, People v. Rios, 26 Misc.3d 1225(A), 2010 WL 625221 (N.Y. Sup. Ct. 2010), while conducting research for this year’s annual supplement for the Thomson West book I co-author with Judge Karen Morris, Crim- inal Law in New York.

The case was based on a criminal prosecution that involved an unusual set of facts and prosecutorial over- reaching that could have been the basis of a “Law & Order” episode. People had died, gosh darn it, and someone was going to pay with their freedom — lack of criminal liability notwithstanding.

In this unfortunate case, which never should have been prosecuted in the first instance, a jury convicted the defendants — a building owner and manager — of the charges of criminally negligent homicide and second-degree reckless endangerment.

The victims were firefighters who died while responding to a fire in an apartment building owned and managed by the defendants. While fighting the fire, six firefighters became trapped on the fourth floor. Ultimately they jumped from a window on the fourth floor as an attempt to escape the fire. Tragically, two firefighters died, while the other four were severely injured.

A subsequent investigation revealed the lessee of the apartment from which the firefighters jumped had installed illegal partitions that blocked some fire escapes and impeded the firefighters’ ability to predict the fire’s strength, and to navigate within the apartment to escape. It also was determined that another lessee’s modifications in an apartment on the third floor — which included installation of an illegal partition and a jury rigged electrical system created in order to heat the room created by the partition — caused the fire in the first instance.

The defendants were prosecuted on the theory that they “recklessly tolerated the hazardous conditions that were created by the tenants and that caused the deaths of the firefighters.”

One issue raised on appeal concerned whether the court should grant the defendants’ motion to set aside the verdict on the grounds that the evidence was legally insufficient to establish that the defendants knew of the conditions that caused the firefighters’ deaths. A second issue raised, which I plan to address in another column, concerned whether juror misconduct occurred when a juror sent a Facebook “friend”request to a firefighter witness while the trial was pending.

Ultimately, after an extensive analysis of the facts, the trial court granted the defendants’ motion to set aside the verdict on the ground that the evidence did not support the prosecution’s theory that the defendants had actual knowledge of the conditions in the fires that resulted in the deaths. The court noted that no electrical or building violation codes ever were issued for the building where the fire occurred, and that the prosecution relied solely on circumstantial evidence to establish that the defen- dants had actual knowledge of the conditions at issue.

In fact, that was what I found most striking about the case — the apparent house of cards on which the prosecution relied as its case in chief. The court described the prosecution’s utter lack of evidence as follows:

The inferences argued by the People ... were neither reasonable nor logical, and called for the jurors to engage in speculation and conjecture. ... These inferences upon inferences were not circumstantial evidence upon which the jury could properly have inferred guilt.

Inferences upon inferences never should be the foundation of a criminal prosecution. In the face of pointless and tragic deaths, many seasoned prosecutors seek to place blame and lose sight of the fact that civil liability does not necessarily amount to criminal liability. Tenuous prosecutions such as this — while great fodder for a prime time television show — are shameful when real people’s lives are at stake. Convicting people innocent of a crime does not bring back the dead. It only serves to contort our criminal justice system into an unrecognizable beast, driven by vengeance rather than justice.


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I think if you were to review the evidence and trial transcripts your opinion may change about the "utter lack of evidence." While I hold great respect for Justice Clancy, the trial judge, who took a great amount of time to render her post-conviction decision overturning the verdict, in this case she was, respectfully, wrong. The partitioned walls in this apartment were known to the landlord and their agents, and they did tolerate them. This was an apartment building in the Bronx where the tenants subdivided the apartment and then ran "octopus" extension cords - causing electrical issues ultimately resulting in the fire. The rent was collected, in person, by a landlord rep. Thus, they had access to the apartment, saw the horrid conditions, and did nothing about it. I believe there was also a suggestion that the superintedent was taking a kickback off the rent. The firefighters had no way to know that the partition walls were up - so they go into a heavy smoke filled apartment, looking to save people and douse the flames, and when the fire flares up - they head to where the clear path to the emergency exit (i.e. the windows) should be. However, they can't get to them because there is an unapproved - unreported wall in the way. By the time the firefighters could get around the maze that the tenants created, and the landlord tolerated for profit, they were out of reserve oxygen in their scott packs and had no choice but to leap from the apartment with the hopes of landing safely. Sadly, that was not to be in, as firefighters died and were maimed. The company and super are not innocents. They took advantage of a situation where poor people were living in squalor - and fostered it for their own benefit. I truly hope that prior to publishing the negative view of the prosecution, you do a heartfelt search of the record. You may not feel the defendants were "guilty" (although I do); however, I strongly believe that you will be less inclined to believe that this was a "tenuous prosecution" or media fodder. Also, please keep in mind that the jury, in Bronx County - where jury conviction rates are notoriously low - did convict.

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