I have a lot to say about prosecutors today. If you read this blog, you know that I have mixed feelings about prosecutors. I'm friendly with some of them, I think they're good people, and I think we can respect each other in the sense of "I know you have a job to do, I have a job to do, let's see how we can both do our jobs to accomplish something good." And other prosecutors are dirty, they lie, they're all about the conviction at any cost, they have no concern for justice.
In particular, one of the issues I struggle with is, especially with a prosecutor I don't know, how much to tell them about my case. Especially where my client has a good defense.
Let me give you an example. Let's say a woman gets robbed. She's walking down the street and a man runs past and rips her iPod from her neck. She doesn't really get a chance to chase after him, and the robber gets away with her iPod.
A week later, she's on the same street, when she sees a man and she is *positive* this is the man who stole her iPod. The police come and arrest him, right there on the street. He doesn't have an iPod on him, and the iPod is never recovered.
I represent the accused robber, who swears he never robbed anyone. My investigator and I go out and speak to the victim. She tells me and my investigator that, at the time she called the police, she was positive that he was the right guy, but, now that she thought about it more, maybe she was just nervous being back on that same dangerous street, and maybe she was wrong. And, also, she says, "I'm almost positive that the robber had a scar over his left eye." My client most definitely does not have a scar on either eye.
Now, if I know the prosecutor, and trust him or her, I could probably call and say, "Hey, listen, why don't you speak to your victim again. Take a look at it, investigate whatever you need to, and let me know what you think." Maybe I would even add, "Ask her about the eye scar." And I would trust that the prosecutor would look into it (by at least questioning the complainant more thoroughly), and if everything I have said adds up, would dismiss the case.
I'm not saying that every case where my client has some sort of story should just be dismissed. But I think it is reasonable to expect a prosecutor to call his witness, ask some questions, and make an objective decision.
On the other end of the spectrum, there are bad prosecutors. What would a bad prosecutor do? A bad prosecutor might say, "Oh, really, do you have proof that your client didn't have plastic surgery to repair a scar the week before he was arrested? Maybe that's what he did with the money he got from selling the stolen iPod."
And then, an hour later, I'd get a call from the complainant saying things like, "The prosecutor said that if I called the police when I wasn't sure it was the right guy, I can be arrested for making a false report. He said I'd better say it was your client, unless I want to go to jail."
Legal? Moral? Ethical? Maybe he's just seeing how well the complainant will stick to her story, judging her veracity. Maybe he's a prick, trying to intimidate an honest witness.
If I don't know a prosecutor's reputation, I'll ask my colleagues what their experience has been with that particular prosecutor before I share any info. Prosecutors generally only get one shot at any kind of dishonesty or trickery with the lawyers in my office, so I hope that they think first and use it wisely.
But what are the consequences, you might ask. I mean, how does it hurt a prosecutor to be distrusted by the public defender's office? So what if public defenders don't make deals with a prosecutor - isn't that a good thing? Doesn't that mean our clients sit and jail and the prosecutor gets a lot of trial experience?
Sort of. But it also means that when we do come up with that gem on an investigation (like the unsure witness), he will never get a courtesy call. And then it comes out at the trial, in front of the jury - with absolutely no warning to the prosecutor. I've seen that happen a few times, and each time it was a very humbling experience for a very arrogant prosecutor.
But it is sort of fun to watch. They don't see it coming and then BAM! it's like a train wreck! And who doesn't love a good BAM! moment in a trial?