This doesn't strike me as particularly problematic, and indeed precisely how the legal system is supposed to work (I'm referring to the court's decision, obviously, not the alleged rape). The prosecution has a chance to present the case again in a manner that gives the defendant a fair grand jury hearing. If the evidence stands up he will no doubt be indicted a second time. The article doesn't present much of the evidence for or against him, beyond a vague outline of the events in question that could easily support either side of the case, so I have no idea if the man is guilty. If he is, he should be convicted. But, even if there is a miscarriage of justice in this case, one of the principal bedrocks of our current legal system is that the integrity of the system is more important than the successful outcome of any one case. I would rather see a guilty man get off and know that the Grand Jury process remains uncorrputed than see it undermined for the sake of any one particular case.

i'm not yet a lawyer, but given the wording of the decision, it sounds like the prosecutors screwed up in their grand jury sessions. criminal procedure is significantly slanted towards the prosecution, and the court here is merely benchslapping the prosecutors for getting too rowdy with their actions. the charges were dismissed without prejudice, meaning that a new grand jury will be empaneled. as the court decision notes, the evidence is strong enough to get an indictment- what it's against is the manner in which the prosecutors biased their GJ towards a favorable result.

thus, while justice may be a bit delayed, it's hardly going to be denied. and as someone who will be working this summer for indigent defendants, i'm all for prosecutors being forced to color inside the lines.

It sounds like the prosecutors needed to focus on the victim's story and not the internal politics of the New York City Council; hopefully the judge did them a favor by exposing the weaknesses of their approach before the actual trial occurred and double jeopardy could have attached.

I'm a paralegal, not a lawyer, but I have to agree with east meets midwest. The judge goes out of her way to state that this guy should be indicted on the charges, but the prosecutor was out of line.

I think it's important to make sure both sides in all cases act properly. It's true that in rape cases, it's notoriously difficult for the prosecution, but I don't see that kind of thing at work here. I did read the decision by the judge, and I can see both sides of the argument.

I work in administrative law, so I'm not familiar with rules grand jury proceedings. But I think the judge's decision makes sense.

Maybe others will see something I don't.

Something similar happened here in my city, Corpus Christi, TX, last year.

The police chief, Bryan Smith was accused of raping his ex girlfriend. Within three weeks the case went to grand jury and was dismissed due to lack of evidence. The victim actually called the cops the night it happened and got a rape kit done at the hospital.

The lack of evidence comes from the fact that the DA pushed the case to grand jury before the official investigation by State Troopers was finished.

The defense lawyer, a known sleezebag, made all the classic moves. Press conference declaring his innocence complete with the guys fiance crying, holding her hand and standing by her man and claiming the victim was mentally and emotionally unstable. The allegation was said to be made in "revenge" because she was dumped for the fiance. He admitted to having sex with her, it just wasn't rape. She said he was drunk and banging on her door late at night, so she let him in because she didn't want him to wake up the kids, they started fooling around but she changed her mind and told him to stop but you know, he raped her.

So the police chief in Corpus Christi Texas might possibly be a rapist.

Men hate punishing rape and will do almost anything to get out of it in every step of the process. We have to literally -make- them do it. It's sick.

kiuku-
I think your comment is a little overbroad, especially considering the fact that the judge who dismissed the charges was female. While men definitely hate getting punished for rape, I respect the judicial system enough to believe that plenty of male judges have convicted and sentenced rapists. It's important that the Councilman's case be handled properly so that no one can claim he was only convicted because the prosecution acted unfairly. That would be counterproductive and probably give him a pass in the "court of public opinion," which we REALLY don't want.

I work as a defense investigator for precisely these kinds of cases. The government does not simply get to do whatever it wants, and they appear to have been rightly smacked down. They can reconvene a jury and do this the right way, which is what they should do.

This only a good thing. by making the government play by the rules, it lessens the chance of there being issues on appeal.

"Men hate punishing rape and will do almost anything to get out of it in every step of the process. "

Kiuku -- Your generalization is patent nonsense. I know several prosecuting attorneys who are male and who have expressed to me at various times their particular satisfaction at helping to convict people who commit violence against people, in particular men who rape women. Moreover, as an all-female jury is almost an impossibility, no rapist would be convicted but for the dedicated participation of both men and women in juries.

The judge ruled that the evidence was such that, if believed by the grand jury, was sufficient to support an indictment. However, the prosecutor asked a lot of questions of the councilman that had nothing to do with the alleged assault: questions about, whether as an elected official, he should be held to a higher standard than an ordinary citizen; questions about his marital status; and questions about who paid for the office where the alleged assault took place. The questions were so seemingly irrelevant and prejudicial, two grand jurors themselves interrupted the prosecutor to question the propriety of his line of questioning. The judge ruled that the prejudicial nature of the questions impermissibly tainted the grand jurors' deliberations. If the prosecutor had just stuck with examining the councilman about the incident itself, an untainted indictment would have been handed down.

It's amazing how many loopholes there are in New York's justice system. Did you know you'll get less time in prison for Incest then for Rape?

"Grow your own victims" is the message they're sending.

Fucking disgusting...

Chris - but incestuous sex with a minor or without the other person's consent is still rape, so someone who did either of those things would get charged with rape. The crime of incest is meant to prevent consensual sex between relatives. Frankly, I'm OK with that being punished less severely than rape.

It's amazing how many loopholes there are in New York's justice system. Did you know you'll get less time in prison for Incest then for Rape?

"Grow your own victims" is the message they're sending.

Fucking disgusting

Um.

No.

You've got that wrong.

Looking at the statutes, "incest," in New York, doesn't have a force element. Which means that even consensual incest is punishable under the particular law, and for less time than rape. Rightly so.

In the case of non-consensual incest, the additional charge of rape is available.

So the maximum sentence for non-consensual incest is incest+rape, rather than incest or rape.

This NY incest issue: where does statutory rape come in, despite any alleged consent to have sex with a blood relation? How old are we talking about? "Consent" when having sex with a child, is not supposed to be an issue.

"Is this a case of the law's formalities getting in the way of true justice?"

And yes, I certainly agree that legal "technicalities" too often stand in the way of justice. For example, I know the accused have a right to due process (the Sixth Amendment), and do not deserve to be held for extended periods without any chance to defend themselves (like detainees from the Middle East), but there have been times those justly accused of crimes have been freed on that issue alone, as when indictments fail to be secured. I have seen limits as short as 24 hours in the UK.

http://www.usatoday.com/life/people/2007-08-20-doherty-arrest_N.htm

For example, in my community, some men that were arrested and promptly released on bail, had all their charges dropped, simply because the prosecution had neglected (forgotten!) to take the case to trial within the prescribed period after arrest (60 days, IIRC). Recall the men were out on bail to begin with, and were not unjustly languishing in jail while they "waited". They were at home or work, with family and friends as usual, as well as speaking out in the press to gain sympathy for their cause.

It is also noteworthy that their acts were witnessed by hundreds if not thousands on the scene AND recorded by news crews and private video, AND broadcast statewide, so the issue of whether or not they committed the acts is not in question. Nevertheless, all charges were dropped, they were freed, and they have never been arrested or prosecuted again, for something they indeed did.

Their crime was not serious and I am sympathetic, but as a legal matter, that was bullshit. They did it, and the community knows it. If the law deserves to be on the books, it should be enforced in such a slam dunk case. How can people expect justice when guilt is not as clear, as in a rape trial without witnesses or a victim unable to testify for whatever reason (eg assaulted in the hospital or the dentist chair while unconscious - true story)?

Meanwhile the Fourteenth Amendment is all too often ignored, when people's gender, race, or class work for or against them in prosecution or sentencing. Bullshit.

The incest loophole was closed in NY in 2006, apparently thanks to the efforts of one lawyer in bringing it to light after fighting the law for decades:

http://protect.org/newYork/campaign.shtml

"New York now joins two other major states—Illinois and California—in rolling back preferential treatment for criminals who sexually assault their own children. It is the first state to explicity write into its laws that incest against children is rape. (NY Penal Law § 255.27)"

What? Incest against children is not "rape" in the 49 other states?

We need Benson and Stabler - they'll get to the bottom of this! Plus the lawyer girl, she's cool.