Taking The Law Seriously

The Maricopa County Attorney’s Office has so many policies I can hardly keep them straight. I suspect that few deputy county attorneys even know all of them, as I hear there’s a manual they consult when in doubt.

If a defendant files a motion to remand for a new determination of probable case, the policy is apparently to not offer a plea. For certain types of charges, no matter how unique the facts of the case, the offer apparently must involve a prison sentence. Aggravated DUI cases involve a plea to a complicated duo of charges that, quite frankly, makes no sense at all, and repeat offenders get similarly bizarre offers based on a complex and largely arbitrary set of considerations. Most notable, for the purpose of this post, at least, is the policy that the first offer is going to be the best offer and all subsequent offers will be considerably harsher.

I’ve actually seen the next-offer-is-harsher policy work pretty effectively in smaller counties. Prosecutors who handle every part of their cases from beginning to end make a fair offer after getting input from the defense. With one particular prosecutor, the initial plea offer is an informed one, assuming the defense lawyer has done his or her job, and she always keeps her word. Unless something new comes up, the next offer sucks, and if you continue to gamble with your case and it doesn’t work out, the offer you get on the eve of trial is downright terrible. It still conveys some benefit however, though the benefit may be minimal.

The problem in Maricopa County is that the policy is swallowed by exceptions. This year, almost every one of my clients has gotten a better offer later on in the case. In fact, only one client who rejected the first offer and continued to litigate the case didn’t get a better offer. Instead, after months of fighting and exploring every possible issue, she got the first offer back. A few others weren’t willing to take the risk, but who knows what would’ve happened had they made a different decision. Those were better-than-average offers anyway, some far better than policy.

As long as I’ve been practicing, there’s been a myth among defendants, especially in custody defendants, that the third offer is the best offer. I used to see people get massively screwed because they thought that was true, but lately, it’s been happening with increasing frequency. Like another lawyer described to me yesterday, it’s as if the county attorneys all come to the final hearing before trial in a clown car. They all pile out, disoriented and afraid, and someone new comes up to you saying they’ve replaced the previous prosecutor before eventually handing you the plea you wanted all along. I’d still never tell a client to wait for the third plea, nor should any self-respecting defense lawyer, but if the county attorney doesn’t fix something soon, I might have to rethink my position.

It’s not hard to see the problem. Every case is different, and broad policies ignore that to the detriment of everyone involved. A plea offer should be thoughtful. It should be based on the facts of the case at hand and the issues involved. It’s ridiculous that we’ve gotten to the point that a prosecutor would even entertain the notion of making an offer without any input from the defense. It should be a serious decision, not a simple flip to the right page of a poorly thought out choose your own adventure book. If the person handling the case can’t be trusted to fashion an offer, why should anyone think that person can competently try the case? For the most part, no one takes the county attorney’s policies seriously any more. I feel bad for many of the great lawyers working there, stripped of all discretion and turned from competent professionals into little more than grade school children whose jobs consist of coloring inside of the lines.

Unfortunately, the problem isn’t limited to the county attorney’s office. In general, people in power give us little reason to take them seriously. Take traffic laws, for instance. Having spent a large chunk of last month on a motorcycle, I witnessed first hand the general public’s inability to safely operate a motor vehicle. My trip confirmed that no one looks out for bikes. My lane is their lane, available for them to drift into as they see fit. No one keeps right except to pass, and in fact, they do quite the opposite. They go half the speed limit in the corners, but they do a NASCAR rolling start with wide open throttle in the passing lane the moment the road opens up. I saw one slow poke in a minivan push triple digits trying to avoid getting passed. No one cares about the speed limit, after all, except when there’s a cop nearby, in which case they dangerously slam on the brakes and pretend everyone doesn’t go ten over at all times. I probably saw fifty vehicles driving down the highway with the side mirrors bent back for some reason or another. Who cares about seeing other vehicles and avoiding collisions, though? What matters is the bean-counting cop with his laser gun hiding around the next corner.

Just like the prosecutors whose jobs have nothing to do with justice, cops rarely do much of anything to protect or serve. People with criminal cases don’t think about the prosecutor trying his best to do the right thing under the circumstances. The plea just reflects the spot where the wheel of fortune landed. People driving a car don’t think about how they shouldn’t endanger the lives of other human beings. Police are only there to catch the poor sap who inadvertently goes eleven over and fails to smash the left pedal into the floorboard at just the right time.

As unrelated as the two might seem, both situations reflect the dire health of the justice system. It isn’t really about justice at all. It’s just a system. Worse, it’s a system no one really takes seriously. People don’t sit around reflecting on spam emails filled with rambling nonsense because it’s white noise. We ignore it because it’s gibberish, yet the thought involved there is substantially greater than the thought that goes into many of the laws and policies that touch countless people all over this country. Everything sounds good on the campaign trail, but the application falls short.

The system can hurt people, sure. A prosecutor can take years from someone’s life, and some can actually take a person’s life. An officer wields an enormous amount of power over you and your future. The problem is that, for the most part, their power is applied randomly. Power alone doesn’t command respect. When we pass laws that no one takes seriously or apply others inconsistently, why should we think it’s going to make a difference?