I won’t name names here, but there is one prosecutor’s office in Arizona that has particularly rigid and often ridiculous office policies regarding plea bargains and a number of other important things that, in my opinion, should be left to the sound judgment of individual prosecutors. Some of the office’s policies are so draconian and inflexible that they are known by pretty much anyone who is even minimally involved with Arizona’s criminal justice system. I imagine 99% of people reading this post instantly knew which office I meant after reading the first sentence.
Anyway, in two cases this year where I wrote the assigned prosecutors letters presenting overwhelming exculpatory evidence and requesting the cases be dismissed, I had conversations like this:
Me: Have you looked over what I gave you?
Me: Are you willing to dismiss the case?
Them: We can’t dismiss these cases.
Me: Are you serious?
Me: You mean to tell me that you can’t dismiss any case involving these charges?
Me: Even with all the exculpatory evidence I gave you?
Me: Even if you know the suit is without merit?
Me: I’m pretty sure you’re not supposed to pursue charges unless there’s a non-frivolous good faith basis in law and fact.
Them: Sorry, it’s our policy.
Me: And that trumps Arizona’s Ethics Rules?
Me: Is this a written policy?
Me: What if I had a video of someone else committing the crime?
Them: Videos can be doctored.
Me: What if my client was incarcerated elsewhere when it happened?
Them: I’m sorry, I can’t dismiss these cases, and I’m very busy.
In all fairness, I should admit that one of those two cases was ultimately dismissed (though not due to the exculpatory evidence I presented) and the other one resulted in a plea to the only charge there was a factual basis to support, but my head still hurts after trying to understand how a no-dismissal policy works in light of Ethics Rule 3.1.
Assuming some high-ranking prosecutor does have authority to dismiss any case, what happens if the defense attorney doesn’t keep moving up the chain of command? Will the assigned prosecutor really proceed with a trial they can’t possibly win? Won’t that prosecutor be violating the ethics rules as soon as he or she realizes the case is unsupported by evidence? Sure, no evidence 100% guarantees guilt or innocence, but I think it’s an enormous waste of public money to not allow the person with the most intimate knowledge of a loser case to dismiss it.
Filed under: Practice in General, Professionalism, Prosecutors · Tags: attorneys, court, courtroom, dismiss, Ethics, exculpatory, good faith, guidelines, lawyers, policies, Professionalism, Prosecutors, rules