This could have started out as another story about bad cops, lying their way into a drug bust of two innocent men. But then, what’s new about that, except that this time there was a videotape proving that the two men were innocent. Not less guilty than alleged, but totally, 100% innocent, as in there was no drug deal at all and the bust was a wholesale fabrication.
On the one side of this story, but for an uptown bar with video surveillance, there would have been no way to prove that the two men, bothers Jose and Maximo Colon, did not do what the undercover detective claimed they did. Their word, the word of two Dominican immigrants, against the word of New York City Police Officer Henry Tavarez. Guess who wins that swearing contest?
But this isn’t a story about the victory of truth over police lies. The brothers owned a convenience store. Owned, as in past tense, as the arrest caused them to lose their license to sell tobacco, alcohol and lottery tickets, the lifeblood of convenience stores. Their business was ruined, and their lives left in shambles. So they weren’t convicted of crimes they didn’t commit, but hardly escaped unscathed.
Jose was represented by a Queens lawyer, Rochelle Berliner. When he brought her the surveillance videotape from the bar proving that no drug deal occurred, her reaction, according to the New York Times, was quite strong:
On the one side of this story, but for an uptown bar with video surveillance, there would have been no way to prove that the two men, bothers Jose and Maximo Colon, did not do what the undercover detective claimed they did. Their word, the word of two Dominican immigrants, against the word of New York City Police Officer Henry Tavarez. Guess who wins that swearing contest?
But this isn’t a story about the victory of truth over police lies. The brothers owned a convenience store. Owned, as in past tense, as the arrest caused them to lose their license to sell tobacco, alcohol and lottery tickets, the lifeblood of convenience stores. Their business was ruined, and their lives left in shambles. So they weren’t convicted of crimes they didn’t commit, but hardly escaped unscathed.
Jose was represented by a Queens lawyer, Rochelle Berliner. When he brought her the surveillance videotape from the bar proving that no drug deal occurred, her reaction, according to the New York Times, was quite strong:
”I almost threw up,” she said. ”Because I must’ve prosecuted 1,500, 2,000 drug cases … and all felonies. And I think back, Oh my God, I believed everything everyone told me. Maybe a handful of times did something not sound right to me. I don’t mean to sound overly dramatic but I was like, sick.”
It’s good that Berliner had this epiphany, and disturbing in the extreme. She promotes herself heavily on her website as a former prosecutor.
CRIMINAL DEFENSE ATTORNEY WITH OVER 17 YEARS EXPERIENCE
FORMER NEW YORK COUNTY ASSISTANT DISTRICT ATTORNEY,
ASSISTANT SPECIAL NARCOTICS PROSECUTOR,
AND APPELLATE PROSECUTOR
Her biography goes into greater detail.
She does indeed have 17 years of experience, though only 4 years as a criminal defense lawyer. Those four years became more valuable after she met Jose Colon. I’ve discussed the problems, both ethical and practical, with the exploitation of prior experience as a prosecutor. Rochelle Berliner just learned the lesson the hard way. This case stole her virginity.
What is disturbing about Berliner’s exclamation is not that she spent 14 years prosecuting people without having realized that maybe, just maybe, her cops weren’t perfect. That’s to be expected of career prosecutors, who often spend their entire careers with their heads deeply embedded in the cops’ derrière. It tends to give one a poor view of reality. It’s that she spent four years since leaving Special Narcotics as a defense lawyer and yet, not until now, was aware of the fact that cops, sometimes, fabricate crimes out of whole cloth. That’s four years of defendants represented by someone who was certain that they wouldn’t have been arrested if they weren’t guilty.
Now, Rochelle Berliner knows better. That’s good. It was time she learned what it means to be a defense lawyer. After four years as a criminal defense lawyer, the time was long past due that she pulled her head out.
The District Attorney’s office has a pat response whenever someone claims that the cops fabricated a crime: Why would they do such a thing? It’s not like they have a vendetta against the defendants, where they would go out and find Jose and Maximo Colon, target them for a false allegation and manufacture a case against them. Why would police officer risk their jobs, their careers, their pensions, to get two men they never met before? It’s ridiculous.
And it is ridiculous, but that doesn’t mean that it doesn’t happen. It means that neither Jose nor Maximo Colon could explain why. Only Police Officer Henry Tavarez can explain his motive in framing the Colon brothers for a crime, and no doubt he’s not talking. There are, of course, some generic reasons, to get a bust, any bust, under his belt. To get some overtime. To get a medal. To show his pals in the group that he’s not a screw up. But this is mere speculation.
Consider the learning curve of a former prosecutor turned criminal defense lawyer. Full of their insider knowledge, they take on cases believing that they have all the weapons that any other lawyer would have, plus the knowledge gained from their years on the other side, giving them a great advantage over those lawyers who lack a prosecutorial background.
Consider how many times this caused the former prosecutor to rush to the wrong assumption about her own clients, believing that the defendant was dead in the water despite his protestations of innocence, and persuading defendants to cop a plea. No sleep was lost because, at the end of the day, the defendant was where he belonged. You can’t spend that long in the District Attorney’s office without gaining a belief that its mission is pure and its judgment sound.
Rochelle Berliner now knows better. Welcome to the ranks of criminal defense lawyer, where we don’t have all the answers but we do know that the prosecution doesn’t either. You’re lucky that you’ve joined in the age of pervasive video, or you still wouldn’t believe this possible. Imagine how many times before the age of video Dominican immigrants like the Colon brothers were convicted for crimes that never happened, with someone like you feeling awfully good about it. I can understand why this would make you sick.
So congratulations on losing your virginity. I hope it didn’t hurt too much. I’m sure it didn’t feel very good for Jose and Maximo Colon, and I hope Police Officer Henry Tavarez loses his soon.
Immediately after law school, I started working at the New York County D.A.’s Office, where I stayed for approximately 14 years. I spent my first two years in the Appeals Bureau and then transferred to Special Narcotics, where I remained until I left the office in May 2005. While in narcotics, I worked on long-term and short-term investigations, a lengthy wiretap case and, of course, street-level drug sale cases. During that time, I tried many cases and acquired extensive litigation skills and experience.
I left the D.A.’s office in May 2005 and started my own criminal defense practice, and that is what I am doing today.
She does indeed have 17 years of experience, though only 4 years as a criminal defense lawyer. Those four years became more valuable after she met Jose Colon. I’ve discussed the problems, both ethical and practical, with the exploitation of prior experience as a prosecutor. Rochelle Berliner just learned the lesson the hard way. This case stole her virginity.
What is disturbing about Berliner’s exclamation is not that she spent 14 years prosecuting people without having realized that maybe, just maybe, her cops weren’t perfect. That’s to be expected of career prosecutors, who often spend their entire careers with their heads deeply embedded in the cops’ derrière. It tends to give one a poor view of reality. It’s that she spent four years since leaving Special Narcotics as a defense lawyer and yet, not until now, was aware of the fact that cops, sometimes, fabricate crimes out of whole cloth. That’s four years of defendants represented by someone who was certain that they wouldn’t have been arrested if they weren’t guilty.
Now, Rochelle Berliner knows better. That’s good. It was time she learned what it means to be a defense lawyer. After four years as a criminal defense lawyer, the time was long past due that she pulled her head out.
The District Attorney’s office has a pat response whenever someone claims that the cops fabricated a crime: Why would they do such a thing? It’s not like they have a vendetta against the defendants, where they would go out and find Jose and Maximo Colon, target them for a false allegation and manufacture a case against them. Why would police officer risk their jobs, their careers, their pensions, to get two men they never met before? It’s ridiculous.
And it is ridiculous, but that doesn’t mean that it doesn’t happen. It means that neither Jose nor Maximo Colon could explain why. Only Police Officer Henry Tavarez can explain his motive in framing the Colon brothers for a crime, and no doubt he’s not talking. There are, of course, some generic reasons, to get a bust, any bust, under his belt. To get some overtime. To get a medal. To show his pals in the group that he’s not a screw up. But this is mere speculation.
Consider the learning curve of a former prosecutor turned criminal defense lawyer. Full of their insider knowledge, they take on cases believing that they have all the weapons that any other lawyer would have, plus the knowledge gained from their years on the other side, giving them a great advantage over those lawyers who lack a prosecutorial background.
Consider how many times this caused the former prosecutor to rush to the wrong assumption about her own clients, believing that the defendant was dead in the water despite his protestations of innocence, and persuading defendants to cop a plea. No sleep was lost because, at the end of the day, the defendant was where he belonged. You can’t spend that long in the District Attorney’s office without gaining a belief that its mission is pure and its judgment sound.
Rochelle Berliner now knows better. Welcome to the ranks of criminal defense lawyer, where we don’t have all the answers but we do know that the prosecution doesn’t either. You’re lucky that you’ve joined in the age of pervasive video, or you still wouldn’t believe this possible. Imagine how many times before the age of video Dominican immigrants like the Colon brothers were convicted for crimes that never happened, with someone like you feeling awfully good about it. I can understand why this would make you sick.
So congratulations on losing your virginity. I hope it didn’t hurt too much. I’m sure it didn’t feel very good for Jose and Maximo Colon, and I hope Police Officer Henry Tavarez loses his soon.
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I don’t disagree with any of your points in this post or other posts about the danger of former prosecutors as defense lawyers, especially those who tout their prosecutorial experience as their special edge (as if there aren’t hundreds of other former prosecutors with that same “edge”), but I just want to offer that prosecutorial experience, and the attendant interactions with police, might also cut the other way. A young lawyer, fresh out of law school and just starting at a DA’s office might subscribe to the same why would they do such a thing naivete on day 1. But so long as that young prosecutor never turns off their general bullshit meter or allows him or her to be intimidated by an older, more experienced person who carries a gun, through their interactions with police, they can also learn that quite often, they’re full of it. Granted, these tend to be the people that stick around the office for three rather than 17 years, but my point is that prosecutorial experience, and the close interaction with the police can go both ways- someone can stick their head in the sand, or elsewhere, so as to be able to sleep at night, or, that experience can be the eye opener that ends the why would anyone do that naivete. I think a lot depends on whether a DA’s office hires people who see themselves as the courtroom arm of the police, or as a separate layer.
And that’s why I don’t say that it’s true of all prosecutors. Rarely are things regarding people so absolute as to require an explanation that it doesn’t apply to everyone. I sense a bit of self-preservation in your comment, though.
“Collars For Dollars”-Look at the time of the arrest vis-a-vis when the cop’s tour ended. That overtime looks good!
I think that your analysis is spot on, but it is worth calling out that Berliner is expected to exaggerate her shock with what happened, as the advocate of Colon brothers who have an upcoming lawsuit against NYPD.
yes, definitely some self-preservation. Didn’t mean to suggest you were painting with too broad a brush.
I grow weary of defense attorneys marketing themselves on the basis of their experience as a prosecutor. What on earth does that do for a client?
Are you implying that you will try to use a little influence to get a result? Are you implying that you have an in with the prosecutor or the judge? Does it mean that you have lots of trial experience (nevermind that prosecuting a case and defending a case are polar opposites)?
They play the angles to get people to cough up money. I consider it flagrantly unethical, as they are clearly suggesting all the things you mention, while we know it to be a load of garbage. And yet they do. And yet clients seem to think they are buying influence. I’ve grown more than weary with this crap.
The Prosecutor’s B.S. Meter
I love reading Scott Greenfield’s blog Simple Justice. He posted a good one the other day called “Another Prosecutor Loses Her Virginity,” about a former prosecutor, Rochelle Berliner, now a defense attorney, who just came to the realization th…
How interesting to read this, as Rochelle Berliner did indeed use her influence with the DA’s office to cut a deal on behalf of her client in a criminal case. She apparently had known the DA’s supervisor for more than 10 years. Unfortunately, I was the victim. My knife-wielding perpetrator got off without anything but probation. The DA suddenly went from planning to go with offering a plea-bargain & reduced charge (to a misdemeanor) and anger management to NOTHING once she intervened. You’ll all be happy to know that he is walking the streets, absolutely free to do it again.
Victims of crime often believe that there’s a vast conspiracy that occurs behind closed doors when a plea bargain is cut. It’s understandable, given that many believe the appropriate outcome should be life plus cancer for the harm done to them. You’ve assumed that the fix was in, and the prosecutor sold you out. It just doesn’t work that way, even if that’s how it feels.
Since you’ve chosen to withhold your identity, there’s nothing that can be said about your situation. But there is no chance whatsoever that the prosecution tossed the case because of the supervisor’s friendship with the lawyer. There are many reasons why things like that happen, but never because of influence. It does not happen that way.
Dear Scott,
I appreciate your response. Your explanation makes me feel better. I could not disclose my identity because the case is now in family court.
The plea bargain was altered suddenly (and extremely) once the DA’s supervisor connected with Rochelle, so you can understand my assumption. (Difficult to believe that her familiarity with the DA’s office worked to my benefit.)
I don’t have your experience, am not an attorney, and besides–I’m a violent crime victim. It’s hard to be objective.
But thank you!
I’ve represented victims as well as defendants over the years, and it’s amazing how different the view looks based on where you stand. What’s truly unfortunate is that the prosecution never spoke with you, explained to you why they did what they did. Many prosecutors don’t like speaking with real people, except to the extent they must, and they particularly avoid bearing bad news. That leaves the victim to wonder what happened, how could things go so wrong. It’s a shame that you’re left to wonder. It’s like being made a victim twice.