May 2009 (Downloadable PDF)

The Legal Project

Pro Bono Corner
Lisa A. Frisch, Executive Director

An Old Dog Learns Some New Tricks
. . .by Ellen C. Schell, Legal Director

For those of you who have welcomed me “home” with open arms, I want to tell you how much I appreciate it. And for all of you who are thinking, “Gee, I thought it had been a long time since I heard anything about Ellen!” let me tell you what I’ve been up to for the past two and a half years:

The background (not to bore those of you who know all this) is that I live in Essex County (home of the High Peaks of the Adirondacks). For many reasons, it is not an option for my partner and I to relocate. From October, 2001 to June, 2006, my first stint at The Legal Project, I was down in Albany during the week, and home on weekends. That became more and more difficult as time went by. When I had the chance to become an Assistant District Attorney for the first woman District Attorney in Essex County, Julie Garcia, I decided to take the chance and leave the job and people I love to be able to live back at home with my partner, and work in my home county.

The DA’s office was a real awakening. I was going to be responsible for prosecuting felony domestic violence and sexual assault cases, and covering the Integrated Domestic Violence Court. (IDV) I was also going to do the Violence Against Women grant writing and reporting. All of that seemed somewhat daunting, but as you know, I have a lot of experience with DV and Sexual Assault cases, so I figured it wouldn’t take long to catch on. What I didn’t have any idea about, however, was the sheer volume of other kinds of cases that I would be responsible for in addition to the violence against women cases. That, and the fact that criminal law was a whole new universe with new language, rules, customs, and law – none of which I had ANY familiarity with. I’m here to tell you that it IS possible to teach an old dog new tricks, but it is a difficult and frustrating project!

Essex County, at the time I started in the DA’s office, had 21 local courts, many of which had two different judges. There were three ADAs and the DA to cover all of these courts, in which traffic tickets, violations and misdemeanors, and preliminary matters for felonies are all dealt with. Almost none of these judges are attorneys. The courts generally meet in the evening, after a judge finishes his or her day job. In the first six months or so I was in the job, I covered seven of these courts, five of which had two judges. At only one court appearance a month for each judge, I had twelve different court nights or afternoons, just to cover my local courts, each month. I was responsible for handling each and every one of the cases that arose in those courts – reading all the files, talking to victims, dealing with defense attorneys, and deciding whether and what offer to make and what sentence to recommend. I also was to review every DV or Sexual Assault case that came in through any court, talk to the victim, and talk with the ADA handling the case about how it should be resolved. Even in little Essex County, there are an awful lot of those cases. I spent those first months in a pretty much perpetual panic about doing something wrong that would get a case dismissed, and it did happen a few times. I had gone from being the one people came to with questions to the one who knew nothing and had to find someone to ask about EVERYTHING!

The result, however, was that I had to learn quickly, and I did. By about a year after I began, our courts had been somewhat reshuffled so that I had only nine court nights each month, and I was beginning to feel as if, at least some of the time, I might know what I was doing. It was still an absolutely overwhelming workload, but I was surviving. I’d won my first jury trial – a DWI misdemeanor in local court. I had a few violence against women felony cases working through the process. I’d presented my first cases to the Grand Jury. I had also lost a few cases. The courts in Essex County are not particularly friendly for victims of domestic violence and sexual assault, or for those prosecuting such cases, as I found out early and often.

In the end, I think this experience was a good one – both for me and for The Legal Project. I learned a great deal in those years. The knowledge I gained is useful in what The Legal Project does and what we’re creating. I have a much more balanced knowledge base, and can talk to prosecutors as someone who knows their world. I also gained friends and connections in Essex County that I cherish. When I pass State troopers, at least in Essex County, I know many of them.

I gained perspective on the institutional issues that make it so difficult to prosecute crimes of violence against women. For instance, it is an A misdemeanor (Petit Larceny), punishable by up to a year in the county jail, to steal a piece of pizza or a bottle of soda, but it is only a violation (Harassment 2nd), punishable by up to 15 days in jail, to punch someone, as long as you don’t cause impairment of physical condition or substantial pain. How does this make any sense?? Why is it that our criminal justice system is far harder on people who steal money than it is on people who harm others? (That’s a rhetorical question, of course. We KNOW the answer to that!)

I learned that prosecuting these cases is not as easy as it seems it should be, and that a judge’s personal and political beliefs have an absolutely huge impact on cases, even though they’re not supposed to, and there’s almost nothing that can be done. The People have almost no right to appeal, no matter how outrageous and legally incorrect a judge’s ruling may be. If there’s an acquittal, for ANY reason, even an improper one, the case is done and can never be brought back.
I also learned that the awesome responsibility of prosecuting crimes weighed very heavily on my soul. Even with all of the institutional barriers, it seemed as if we should be able to be more successful in prosecuting DV and Sexual Assault cases, and each one we lost felt like a personal defeat for me. I worked closely with the victims, and it was painful each and every time I had to sit down with a victim who’d done everything possible to cooperate with prosecution, and still had a judge or jury find that her testimony or her memory wasn’t “good enough.” Victims would come in, do all the painful stuff necessary to have charges brought, go through all of the trial prep and anxiety, thinking that there might finally be some justice, and still come out feeling that no one believed them.

I did have some successes, which certainly helped me feel better at times. There are several men serving time in state prison even as I write this, whom I prosecuted for either sexual assaults or domestic violence. I did a jury trial in IDV Court on a defendant who had battered two previous women, and my witness several times before, who is now serving a year in the Essex County Jail. Even though the judge later told me he hadn’t believed my witness, the jury did. I did manage to create at least some accountability for those who commit these crimes.

Finally, I learned that anyone who is serious about prosecuting batterers and rapists is going to gain a reputation as an “f***ing b***h,” a title I apparently had unknowingly earned. I, of course, didn’t hear that until I was ready to leave, when one of the court officers asked my young colleague who was taking over IDV Court if she was the new “fb” in town. He said he’d heard so many defendants and defense attorneys come out of IDV Court calling me that name that he thought it must be a title that came with the job. When I heard that, I knew I’d been doing something right!

What this really came down to, however, is that I never truly felt like I left The Legal Project. When I’d speak to people, I’d always say, “We do …” or “We are …” meaning The Legal Project. I missed all of the wonderful people I’d gotten close to in my nearly five years there. I missed the policy and training work I love to do, and had no chance to do at the DA’s office. But I also loved working with the DA, Julie Garcia. She was the main reason I hung in there as long as I did. She’s a wonderful person who’s trying hard to do the right thing in a where politics are particularly ugly, and we became good friends. Ultimately, though, when Lisa called and played me like a violin into telling her that I’d think about coming back, I didn’t have to think that long. And here I am. The chance to create the Military Project from the ground up is pretty exciting.

Being back with the wonderful team at The Legal Project feels like a great weight has been lifted off my shoulders. I’m so thankful that I have this chance to return to the job I love more than any I’ve ever had (and for anyone who knows anything about me, that is a LOT of jobs!), doing work that makes such a difference in people’s lives. I look forward to working with all of you as we continue to move forward. This old dog will use all the new tricks she learned, but she’s awfully happy to be able to use all the old ones again, too.

The Legal Project’s Open House

New York State Budget Update

The budget process is at the end, and we want to thank all of you who reached out to your Legislators and the Governor in support of Civil Legal Services funding. The end result was relatively positive, considering the economic climate. The Assembly, who have long been our friends in legal services, reinstated their legislative funding in full. The Governor did put $1 million in his 30 day budget amendments, only one of two amendments he did for the entire budget, so that sent a positive message. The Senate is in the process of putting funds in place to “match” the Assembly support, and the formulas for distributing these funds are in development. We are grateful to our many supporters in the Legislator who helped maintain at least a portion of the funding for civil legal services in one of the most challenging fiscal times we have experienced. Locally, we send our sincere thanks to Senator Neil Breslin, Assembly Marjority Leader Ron Canestrari, Assemblymen Jack McEneny and Robert Reilly for their critical support. As always, we send our special thanks to Assemblywoman Helene Weinstein, who has long spearheaded the support of the Assembly for our funding statewide and was tireless this year in her efforts to keep our funding issues in the forefront. There is much more work to be done to put in place a more appropriate and consistent funding mechanism for our work across the state, and we will keep you informed in the efforts to avoid more scrambling in next year’s budget process to better ensure that our essential programs receive the support that is vital to our services.

Thank you for volunteering in March!