What Do Prosecutors Fail to Understand About Defense Counsel?

121752412_Letters_383033cAround the nation there are prosecutors who are tasked with an overwhelming number of cases.  Occasionally they may have a serious felony, such as rape or murder, but what bogs them down is the immense number of simple possession charges and “broken windows” crimes as a result of police focusing on the petty, hoping to clear the streets of anyone who might commit the serious.  Even children who are merely being disruptive in school (without committing a crime) have begun to clog juvenile courts.  Like a waiter slammed with a lunch-hour rush, these prosecutors need to keep the assembly line moving just to keep their heads above water.

Prosecutors live and die by the plea bargain, or “The Deal.”  Nationally, over 95% of all criminal charges are resolved without trial; in some places the number can be even higher.

In courtrooms and holding cells, statements can be heard such as “The judge doesn’t like it when you file motions.”  This comes from marshals, prosecutors, bailiffs, and even defense counsel.  The judge is also trying to keep their head above water and get through their docket.  And this is how evidence is rarely challenged, witnesses are rarely needed, and experts are rarely provided.

Prosecutors can get emotional, like anyone else, and take it personally if defense counsel does something like… defend their client vigorously.

Court employees need to understand the job of the defense counsel is to work for the client.  They are obligated, by law and oath, to provide enough information to the defendants so they can make their own informed choices.  Defense counsel is not allowed to make decisions for the client, nor allowed to manipulate them.  If so, those lawyers could be professionally sanctioned, and even kicked out of the practice.

Do prosecutors not understand the role of defense counsel?  Perhaps because prosecutors have no client, and can act autonomously in the vague name of “the State,” they forget how the adversarial system is designed to work.  Realistically, if the State can’t be bothered to have their evidence scrutinized, or don’t think its worth the time to actually serve as “lawyers” (utilizing the Rules of Evidence and Procedure, along with case precedent), then the logical thing to do is to drop the charges.

Defense counsel does not work for the State, and should not be taking “advice” from the opposition any more than the coach of a team should be taking advice from the coach of their opponent.  And they certainly shouldn’t need to concern themselves with what the referees think about the length of the game, or how opposing players feel about the matchup.   Any opponent who is offended that their advice wasn’t heeded should just look in the mirror and ask how they would receive such advice.  What if it were the defense attorneys who approached the prosecutors, after an arrest, and offered the Plea Bargain?

“Listen, my client would like to get in this treatment facility and attend community college, but you will need to drop these charges.  She will agree to urine tests, however.  That’s the Deal- you should take it.”

Prosecutors should know that they hold the cards as to whether the case goes forward or is dismissed.  Naturally, low line prosecutors have less discretion, and are probably facing a ton of pressure to get convictions for an elected boss.  District Attorneys and Attorneys General are political positions, and few have had the courage or the persuasion to get elected on anything other than “Tougher on Crime” via increased convictions and punishment.

Defense counsels who stand up to the pressures of “The Deal” should be applauded for their courage to withstand what amounts to harassment in the workplace.  If they (or their clients) are given discriminatory treatment for asserting their constitutionally protected rights (including the 7th Amendment right to a jury trial), then perhaps a federal §1983 civil rights lawsuit is in order.

Dear Prosecutors: Don’t hate the players.  Hate the game.

About Bruce Reilly

Bruce Reilly is the Deputy Director of Voice of the Ex-Offender in New Orleans, LA. He is a graduate of Tulane Law School and author of NewJack's Guide to the Big House. Much of his writing can be found on www.Unprison.org.
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