Sunday, May 29, 2005

The prosecutor mentality

One of my minor pet peeves is the attitude of many prosecutors, and going along with that, a common public attitude toward defense lawyers. I should mention right at the beginning that there are many exceptions to this, and that I don't see this at all when it comes to traffic & DWI cases.

So anyway, it comes to this -- many prosecutors can't accept that they have a bad case. Sometimes the evidence just isn't there. I've seen it in a few cases now. Defendant is arrested for allegedly doing X. The prosecution doesn't have much evidence.

In some cases the prosecution moves the case forward because they haven't really thought their case through. In others, they stubbornly push the case forward knowing they have no case. The former comes from laziness or being too busy. The latter results, I think, from a good-guys/bad-guys mindset.

An example of the lazy prosecutor is my client from a while back who was accused of stealing from the store where he worked. The "evidence" was register tapes with suspicious transactions, all of which supposedly took place only when my client was working. From the beginning it was obvious that, even if true, this was not enough. The store did not have the right kind of inventory and accounting controls - they didn't have any such controls. You couldn't tell who was on the register at any moment, and you couldn't tell if a "return" was genuine because the employees did not have to document the item coming back in. They couldn't even prove any money was missing. On top of that, my initial investigation showed that another store employee (the store manager's boyfriend) had a criminal record.

You would think this would be enough to make the Assistant DA say "Hmm". Nope. They went ahead and got an indictment against my client. In my conversations with that ADA, I never got any sense that he cared enough about the case to listen and look into my concerns.

After indictment we got a new ADA. This one eventually listened, but at first she didn't really pay attention. The case was a simple "paper-caper", and my client should take a deal. I explained my concerns but they didn't register. Then came discovery, and we got a look at the register tapes. The new ADA started paying attention, and had a law student intern looking at the tapes along with our expert. I got the sense she was starting to figure out she had a problem, but it wasn't enough to derail the train.

So we showed up for the first day of trial. I presented her with a detailed report from my expert, showing that there were a number of similarly suspicious transactions that had taken place when my client wasn't working. The store manager and a forensic accountant for the prosecution had both testified in Grand Jury that all suspicious transactions had taken place only when my client was working. The ADA's proof was demonstrably false. Frankly, their witnesses lied to the Grand Jury.

I leaned over to her at one point as we were about to pick the jury, and said I couldn't ethically prosecute this case if I were in her shoes. She ran down to the DA and came back up with an ACOD (adjournment in contemplation of dismissal -- effectively dismissing the case).

The other side of this is a case going now. My client is accused of attacking someone along with 2 co-defendants. The victim identified one of the co-D's. That co-D claimed he did not participate but id'd my client and the other co-D. The other co-D admitted participating and threw in my client and the first co-D. But the victim and his friends have never id'd my guy. And I have witnesses - one stating that my guy did not participate and another saying that co-D #2 had said my guy "punked out". I told the ADA about these witnesses but so far that's not making a dent.

So the two co-Ds took deals and agreed to testify against my guy. Unfortunately for the prosecution, guy #2 did not do well in his allocution (where the pleading defendant admits to his actions in front of the judge). He admitted his own participation but waffled badly in saying whether my guy was involved (this could turn into a gripe about defense attorneys not prepping their clients, but ...).

In this case, the ADA insists that she's going to get an indictment and nail my client. She has no reliable witnesses against my guy. Co-D #1 lied initially about his own participation and is getting a very sweet deal to testify against my guy. Co-D #2 has made at least 2 prior inconsistent statements. That's all she's got to tie my client to this. At the same time, we have two witnesses supporting us and my client will testify that he was not involved.

Then again, I expected to hear about my client's indictment by now, and I haven't heard anything. I'm wondering if the Grand Jury refused to indict.

Despite this venting, I have had a lot of good experience with a lot of good prosecutors. You know who you are ....
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