15 August 2003

Prosecutors in the Hot Seat:

(1) In Alexandria a federal prosecutor's office looks to be in trouble - evidence which had been excluded made it into the jury room and was dispositive to the outcome of the case. No one seems to know how. It would be ridiculous to suggest that the Defense somehow planted the evidence which condemned its own client and "accident" just doesn't seem to pass the red-face test. And the judge is not happy.

(2) A prosecutor in Iowa has adopted the Allstate method in negotiating pleas. Nothing necessarily illegal or unconstitutional about that although this statement is "disingenuous":
"[The prosecutor] dismissed complaints that the plea policy prohibits defense attorneys from properly investigating cases. Good lawyers can learn what they need to learn by talking to the defendant, he said. It doesn't take months of depositions or courtroom debates.

"If they're going into court representing people and they don't know what the circumstances are, then I think they need to get out of the business," [the prosecutor] said.
Yeah, I know what the circumstances are. I know that I'm not going to know what the putative reason for the pretext stop was in a majority of the cases until I have a preliminary hearing and tape it or I get discovery telling me on paper the reason. I know my client isn't going to have a clue as to what's on the affidavit or search warrant or what all was taken out of his house after he had been arrested. I know that I don't know how citizens are going to testify at trial: they may not be able - or willing - to identify my client.

Early deals swing both ways. Unless the prosecutor has been involved in the investigation personally he doesn't know if the evidence will shake out the way it appears in the police report; usually it will but I'm sure that all you prosecutors out there can remember a nasty surprise or two. On the other hand, the Defense attorney often starts out with little more knowledge than the mandatory sentence and how much less time would be served thru the offer. I cannot recount the number of clients who've said something to the effect of: "Man, I was so messed up that night that I don't remember anything but the cop hitting me with his baton on the side of the road. How'd I get in Chesterfield County, anyway?" (like I'd know) So both sides are stumbling around in the dark prior to anything going forward. Deals at this point are mainly guesses.

I find it interesting that the Bar in Iowa refused to consider whether this prosecutor's actions would be unethical. Perhaps someone out there should refer this to ethicalEsq? for further analysis.


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