Bad Prosecutors Will Be Violated

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?

22 comments:

  1. No matter how decent a person the prosecutor is, it is a rare one indeed who does not feel righteous, even when she/he is not particularly arrogant. Though I too am friendly with some prosecutors, I like to let the train wreck happen. Makes 'em remember that life ain't black and white...

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  2. "And who doesn't love a good BAM! moment in a trial?"

    Even though I'm not part of the legal community, I just love hearing stories about stuff like that. That's why I read blawgs.

    Well, that and a deeply rooted fear that somehow, someday, I'll be arrested...

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  3. I love me some trial BAM especially with a side of scattered covered hashbrowns from waffle house.

    One of our deputy prosecutors (who is very self righteous) got arrested for DWI and failing to submit to a breathalyzer test.

    Oh he was arrested on a Monday, driving from the COURT HOUSE!!

    Let the good times and Schadefruende roll!

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  4. Wow, a real life Perry Mason moment! I just KNEW I didn't waste my time by reading all those Erle Stanley Gardner books. :)

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  5. Well taken comments. Obviously both sides of the aisle have fast and loose advocates, and both have conscientious ones. My own take is that all lawyers need to remember that reputation with the bar and with the courts extends beyond the need to shine in any one case. A prosecutor, or a defense attorney, can lose their reputation in a flash and for what?

    Unfortunately, some lawyers think that they can or should check their common decency and respect at the courthouse door. As this story illustrates, it's a short-sighted thing to do.

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  6. There is a sort of karma about these type of prosecutors. Like in Melissa's case, an ADA in the next county over was recently convicted of DWI (refusal as well) after getting a "free pass" from the cops for years. This time he was in an accident and it couldn't get swept under the rug.

    These self-righteous "persecutors" fall into two camps: Those who, after a few embarassing BAM defeats, become tame and those who never get the picture and continue with the BS (often with the implicit approval of a supervisor) until it gets to a point where he/she is publicly (and professionally) humiliated to the point of termination or, in some cases, suspension from the bar.

    Nevertheless, the problem is that there is no mechanism in place for any sort of meaningful professional discipline for those who not only do a disservice to those prosecutors who do care but to the profession as a whole.

    sorry for the rant...

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  7. It's just hard for me to imagine how people can become so short-sighted that they're unable to realize that being a jerk today will come back and be a pain for them in the future.

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  8. I know exactly what you mean. There are some prosecutors who, when you give them the exculpatory information you have developed, will seriously investigate and dismiss when appropriate. And then there are the ones who take the information you give them and woodshed their witnesses. As much as I love the BAM moments in trial, I love a sure-fire dismissal over a BAM moment and a good chance at a jury acquittal any day. So, the prosecutors that I can trust, I'm happy to provide the information. If I don't trust them--BAM! They need to learn a lesson.

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  9. Blonde:
    Good prosecutor or bad, when the complainant makes inconsistent statements to an investigator, get her to sign the investigator's report (preferably after initialing any typos). No amount of woodshedding is going to undo the effect of the impeachment. It's a bit more work (b/c the investigator has to return), but the quality of the impeachment can't be beat.
    I guess I believe that with the exception of the truly worst of the worst, its best to treat opposing counsel courteously everyday. Nine times out of ten, I get treated well in return. Now, I practice in a small state and we all know who the stinkers are. Maybe its different where you are.
    Also, although it may take a while, most stinkers get their commupence. Bad prosecutors are just like our clients--they may get away with a lot for long time but eventually they will be called to account (perhaps by you).

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  10. Melissa, upstate NY here...

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  11. Are you IN MY MIND? I swear, several of your posts have addressed issues I'm struggling with, within 48 hours of them arising.

    I have a case where some prosecutors would dismiss the case if I brought some evidence to them (evidence that I gathered). But only a few. And I don't want to give the prosecutor the opportunity to prep their witness ahead of time by saying, "So how can you explain XYZ, anyway?" and then giving the witness to concoct a story before the BAM! moment of trial.

    I hope I don't lose.

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  12. Hi Blonde, been awhile since I visited. Still enjoyable...

    I have recently heard serveral stories in my office about a couple of prosecutors playing loose with the truth and right on edge of illegal behaviour in their prosecution of trial matters. I was surprised, as these prosecutors were/are folk who I've had nothing but fair experiences with. I dug around a bit. Turns out, both seem to have been told to play 'hardball' (and how to do it) by their boss, who doesn't actually have to front court.

    I'm still working out how to deal with it, it would be a shame to see these guys poison their well, we'd lose a couple of fair people on the other side. As a defence lawyer, I'd find that tragic.

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  13. The flip side though is that if you do not reveal your exculpatory stuff or your silver bullet defense, in some situations it can look to a jury or judge like you were playing hide the ball and didn't WANT the government to have a chance to investigate whatever the defense is.

    This happens in Virginia especially in alibi cases, where, if no formal discovery takes place, the defense does not have to disclose an alibi.

    Of course, when I see no discovery request, I'm already thinking "alibi defense"-- but a jury often understands WHY an alibi is often not disclosed: to sandbag the government, and usually (but not always) the jury discounts it for that reason.

    But here again, a victim recanting is a whole different can of worms. Everyone knows there are various reasons why victims recant or "forget" what they saw. Sometimes it's genuine doubt, like in Blonde Justice's case. Other times it's just plain witness intimidation, and in the worst cases, it can even come from the PD investigator. I have some stories socked away involving just that.

    Bottom line: no one likes trial by ambush, and everyone is usually better off if information is disseminated freely.

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  14. I've read your blog for awhile because I enjoy your observations, never felt obligated to respond before. As a prosecutor in a fairly large metro, I may have a different perspective for you.

    One thing that PD's sometimes fail to take into consideration is that a silver bullet defense rarely works as well as Perry Mason would have us believe. Think about it form this perspective... you withhold the information. Victim takes the stand and says she's certain it's the guy. You impeach her with the scar. Victim says "i did tell you that, but now I'm looking at him and I'm positive it's the guy." You ask the next question, "Did you speak the prosecutor about this information" and she gives a very credible and very honest "No, I didn't, I just know now that it really is the defendant, and I was mistaken when i talked to you."

    We all know juries, and you now know you're miracle acquittal isn't as likely as you thought it was. Why take the risk with your client?

    There are bad prosecutors (and bad PD's I might add), but I think most people on both sides take their job seriously and actually want to do it well. From my perspective, I have so many cases on my docket that I can't possibly try all of them. Neither can the PD's on the other side. Taking the heat from a victim, the police, (or even the press) about not moving forward is still usually less work than actually prepping a case for trial and taking a few days out of my week. The system works best when we all remember that we're professionals.

    I'm not going to dismiss every case where someone says "he's not good for it." In fact, most of the time I'm going to push forward. But I will say that I recently dismissed a street robbery, almost identical to your facts, because the defendant had a very credible alibi. The PD offered me the information, we investigated, it checked out, and we let him go home. Much better for the client than keeping him in custody for the nine months (to two years) it would have taken to get to a trial setting.

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  15. I like to tell new prosecutors: I am going to tell you why you can't prove your case. This is a test. If I tell you where the holes are, and you do the right thing and dismiss the case, you have passed the test, and will continue to receive information in the future. On the other hand, if you slime me--try to plug the holes, or change someone's testimony--you will never, ever get information from me about why your case sucks.

    In 15 years as a public defender, I've had about 3 prosecutors pass this test.

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  16. I see a lot of mutual distrust between public defenders and prosecutors, but being slimy in anticipation of sliminess on the part of your opponent just shows that you don't have integrity either, and it might be a bad idea for pragmatic reasons too. Prosecutors are biased toward their side, but they don't treat all public defenders the same any more than public defenders treat all of them the same. A public defender who is too committed to the tit for tat approach (and her clients) might suffer as a result. I'm not saying you should treat a slimy DA the same way you treat one with integrity, but there are still hard questions about where to draw the line without losing your own integrity. There's also the potential hypocracy of being a criminal defense lawyer who is willing to pull out all the dirty tricks, or soften her commitment to basic standards of ethical interaction,on the basis of a prosecutor's bad reputation. That's exactly what any defense lawyer hates most in a prosecutor, so be careful.

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  17. What about going to the witness, getting your statement, and then advising her that a trial based on anything less than her completely being sure would be unfair and would haunt her forever. Then advise her to call the prosecutor and if she is afraid to, you will go with her or help her find a friendly defense lawyer who will go with her.

    I go with witnesses who are feeling pressure from police or prosecutors all the time. Usually Pro Bono.

    We have a few prosecutors who will coerce different testimony. Once they have to answer to a third lawyer, they realize they risk way too much for one stupid case and behave themselves... at least this once.

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  18. I'm a firm believer in Karma...be slimy and it will eventually come home to roost.

    We should all be promoting the search for the truth. The utimate decision is for the judge or jury, not for me to decide, I'm just not that smart or important and I wasn't there so I really will never know what happened.

    To Tom: You assume that the defendant has actually told his lawyer about an alibi before the eve or morning of trial. Defendants also seem to think we can magically spit witness subpoenas out our ears and just consult my ouji board for real addresses!

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  19. Girl, you've hit it square on. If we could trust the state to dismiss, or lower the charge to what it should be, we could resolve things in a just manner. But we can't.

    I've had two bombshells in 13 years of trials. Both times, I knew what I had, I knew how the jury would react, and it was truly wonderful. I still relive those moments.

    Those of you who think it's slimy, think again. It's not a level playing field. The state gets to submit their pleadings late, gets adjournments for almost any reason, and often thinks it can railroad or blindside our clients, hiding behind some arrogant belief that it is protecting the public against our hapless, powerless (and yes, often loser) clients.

    People are so misguided. We are not just protecting the rights of our clients, we are protecting our own rights, and the rights of everyone else--including the prosecutors. That's why we labor for peanut shells.

    So relish those trainwrecks. THey are few and far between.

    SDR

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  20. Anita Dickens-HydeSeptember 16, 2006 12:16 AM

    If you will indulge me in an off-color story, the comments on this thread remind me of the young woman who told her gynocologist that her husband had lately become very fond of backdoor sex.

    The doctor asked, "Does it hurt?"

    The patient said, "Yes, a little bit."

    The doctor asked, "Well, do you like it?"

    The woman replied, "Actually, I do."

    The doc then said, "In that case, I don't see any problem. Just be careful to use condoms if you don't want to become pregnant."

    The patient exclaimed, "I didn't know you could get pregnant that way!"

    The doctor replied, "And where did you think prosecutors came from?"

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  21. MOM DESPERATE FOR SOME IMPUT FROM ANYONE WHO CAN TAKE A MOMENT AND LET ME KNOW HOW THEY SEE THIS CASE TO TURN OUT. VERY SIMPLE CASE, WITH EVIDENCE.

    I am not an Attorney of any sorts. I am a mom that has witnessed a situation with two boys who are innocent of a crime they were charged for, one was a misdeanor and the other a felony.
    This is a self defense issue that has all the evidence to prove it. I will try to make this short. It happened in Florida where a person can stand there ground. They were in the process of leaving a resturant and the misdeamenor one was outside of the accused felony truck throwing up and sick. The accused felony heard about it and went out to help the misdemeanor boy,(been charged already), into the car. The felony, (still waiting to talk to his public defender and has not been to trial or acquitted), helped the misdemeanor into the truck,let him go and walked around to drivers side to leave. As this was going on, a man and two women walked pass the truck and made a comment to misdemeanor about his public drunkeness, (which was actually food poison), afterwhich, the misdemenor boy called the man a fag. The man came after the misdemeanor boy and pulled him from the truck and started to violently beat him up. The misdemeanor boy motion that he could not fight. The man would not stop and the felony boy tried to pull him off, but was unable. He noticed that the misdemeanor boy was bleeding badly from his head. So the felony boy went to the back of his truck where he had a concealed stick for self defense. As he went to hit the man, the man let the misdemeanor boy go, which at that point he had blacked out, and grabbed the stick from the felony boy and started to beat him up. The felony boy was on the ground and crawling away towards the steet. When the police officer showed up, the man was on top of the felony boy, and one of the women the man was with was kicking the felony boy. The misdemeanor boy had come too and gotten into the truck and witness this going on with the felony boy. The police pulled the man off, but they let him go because the only question that was asked was who the stick belong too and if the man was hurt. The felony boy owned up to it, but did not get to tell what happened. The man said that the felony boy hit him in the back of the head, but he did not end up going to the hospital. That was a lie, because he took the stick before the felony boy could hit him. The man also said that the misdemeanor boy advanced toward him and so did the witnesses. The two boys were taken to jail. Misdemeanor boy, was released, but never got to plead in the case, and when he tried the procecuting attorney said it was too late, she filed a deferred prosecution agreemen form for six months. The supposed victim never came forward in that case, so the prosecuting attorney did this instead. There are pictures of blood on the truck along with puke and also the girlfriend of the misdemeanor boy was on the phone and heard everything. The felony boy is still awaiting to hear something. His Public defender has not called him yet, all evidence has been forwarded to him. Both boys immediatally put their stories on paper and had them notarized. The misdemeanor boy has been submonded for a depostion. The felony boy is very afraid, he is a great person and neither have ever been in trouble. One is in the military and the other just got out after joining straight out of high school. The felony boy is the one that just got out and is awaiting to begin his life as a civilian.

    If anyone can tell me whether they have had a case like this and the outcome, I would be forever greatful. Hopefully this is enough info for you.

    The state that this happened in has a self defense statue, that says a person does not have the duty to retreat if they are defending themselves, family or other. It is justifiable to use deadly force if necessary. Also, you may carry a concealed weapon for self defense purposes.

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