Prosecutors vary. They vary in intelligence. They vary in competence. Most importantly (to the majority of criminal defendants, at least), they vary in harshness. Some prosecutors demand blood for the tiniest little mistakes. Others are capable of feeling compassion. I can usually strike a judge and occasionally even change the venue altogether, but I’m pretty much stuck with the prosecutor who’s assigned. That can sometimes be a major determining factor if not the major determining factor in the outcome of a case.
I just finished handling a somewhat complex drug case in a rural county. The first prosecutor on the case was a very competent younger attorney. She knew the case like the back of her hand and considered it a serious matter. I received the discovery from her office immediately, she was easy to reach on the phone when I called after reviewing everything, and she was reasonable when we discussed the case, though she stood by her initial offer. I spent a lot of time on the matter, as did she, and we ultimately worked out a resolution where my client would in essence determine her own fate. After months in custody, my client would be released but strictly monitored. Sentencing would occur far in the future to gauge her progress while on release. If she did not do well, she would certainly go to prison. If she succeeded, she would be placed on probation.
During the lengthy delay between my client’s change of plea and sentencing, that first prosecutor moved on to greener pastures. I found out about that when I called to inform her of my client’s stellar performance while on release and to discuss the upcoming sentencing hearing. I spoke with the new prosecutor instead, and she was immediately upset that my client was even out of custody. She didn’t know it was a drug case or that my client had no priors, but she self-righteously told me she would have never made such a lenient offer. She thought there was an assault count too, not realizing there was an assault aspect to the case but that was due to the fact police only found the drugs after my client called 911 to report being the victim of an assault by the co-defendant. The new prosecutor shrugged that off, sitting in a silence for a few moments while thumbing through the file to find evidence supporting her knee-jerk reaction that my client was a bad person who should be taken back into custody. She found nothing, yet she remained resolute about my client’s need for punishment and the horrible seriousness of the charged crimes about which she hardly knew anything.
During the final months prior to sentencing, I got to explore the depths of the new prosecutor’s lack of knowledge. Her understanding of the case seemed to depend as much on what kind of day she was having as it did on the actual facts of the case. Still uncertain about what really happened and apparently unwilling to remedy that, she ranged from thinking my client should go away for a really long time to thinking my client should go away for a really, really long time. My client’s remarkable success on release, the glowing report from pretrial services on my client, and the probation department’s strong recommendation that my client be placed on probation didn’t change her mind. At sentencing, the new prosecutor left coverage notes demanding the max and complaining that the plea her predecessor made hadn’t been harsher.
Fortunately, the judge was great. In fact, my only complaint is that the prosecutor wasn’t there herself. The judge criticized her recommendation because it didn’t make sense to him. My client couldn’t have possibly done anything more to prove herself worthy of probation, he explained. She had already spent quite some time in custody, and the state’s recommendation revealed a disturbing lack of understanding. The situation obviously bothered the judge, and he made quite the record before congratulating my client on her success and sentencing her to probation. Everything turned out okay, thankfully.
That case emphasized an unfortunate correlation that occurs among prosecutors: the least knowledgeable tend to be the harshest. You might expect that prosecutors would not be so quick to demand punishment when they don’t know the facts, but it’s often the case with many of the worst prosecutors that the severity of the punishment they demand increases the less they know. They control someone’s fate, yet they can’t be troubled to open up the file. Ignorance leads to cruelty, whereas knowledge often leads to compassion. It’s a sad truth in the criminal justice system that’s made worse by the fact that not every case is in front of a judge like the one we had, a judge who doesn’t have the same problem.