PRINT PAGEThe Slippery Slope of Waiving Rights

Written by Roy Black

I read in the New York Times that Eli Cherkasky, an assistant district attorney in the Manhattan DA public corruption unit, was adjudged guilty of third-degree assault, criminal obstruction of breathing and second-degree harassment, all misdemeanors. He had a fight with a woman during a drunken argument at a bar on Halloween night in 2014. He waived his right to a jury trial. The Times pointed out that “Judge Ann E. Scherzer immediately rendered her verdict after an assistant district attorney uttered the last sentence of her closing argument following a weeklong bench trial.” The Times reporter noted that Cherkasky appeared stunned as the judge delivered her decision, and leaned against a pillar in the courtroom. Later that same day he submitted his resignation and now awaits sentencing.

Cherkasky’s lawyer said after court: “I say this respectfully, but that verdict was completely wrong.” It seems the waiver of a jury was a miscalculation by the defense. I assume they thought a criminal court judge would be biased in favor of a prosecutor. My experience with law enforcement defendants is to seek a jury. Prosecutors and police are respected and given the benefit of the doubt by the average citizen while judges can be more political and more punitive.

The Sixth Amendment to the Constitution provides for trial by jury. However the Supreme Court has written that criminal defendants may waive virtually anything in the system including such bedrock constitutional protections like the fourth amendment right to be free from unreasonable search and seizures, the sixth amendment rights to a jury trial, confrontation of witnesses, and even the assistance of counsel.

I started with the public defender office during the exuberant era of the Warren Court, which created a revolution in criminal procedure. Defendants finally had rights. We never waived them; we flaunted them. Sadly, the world has turned over many times since then. Today the defendant’s right are subjugated to those of the prosecutor. The prosecution regulates the criminal justice system through plea bargaining abetted by an exceedingly harsh web of mandatory minimum sentences, guideline sentences and “cooperation.”

If you are going to a trial, make sure it has a jury. Perhaps this prosecutor was filled with enough hubris to think he would get a break but didn’t realize his demotion from the exalted status of a prosecutor to the despised one of defendant made this improbable. The judge found him guilty in less than a minute without even a pretense of deliberation. The ultimate slap-in-the-face to impartiality.

I don’t believe in waiving any of my clients’ rights. We are asked by prosecutors often to waive rights which get in the way of their investigation. I don’t waive the attorney-client privilege, I don’t disclose passwords for phones or computers, and I never stipulate to any evidence. My mantra is make them do it the hard way; prove it beyond a reasonable doubt to a jury without any help from us. Rights do make things difficult; they especially make it difficult to send the client to the penitentiary.

Share this story:

Leave a Reply:

You must be logged in to post a comment.