Brown & Little, P.L.C. » Courts, Government Rants, Prosecutors, Victim's Rights » A Victim In The Way

A Victim In The Way

From afar, I’ve been watching a colleague represent the minor victim in an assault case. The “victim” was actually the aggressor, so it behooved him to hire counsel. He and his lawyer have had quite the ride as the case has progressed.

I’m sure the prosecutor told the defense attorney that the victim would not consent to an interview because almost every prosecutor does that in almost every case. They almost never ask, however, and this time I knew for a fact that was what happened. The prosecutor never once bothered to consult with the victim about anything. At most, the prosecutor just read what the cops said the victim said, probably not even listening to the actual recorded interview, then acted like an expert on the facts of the case and the victim’s wishes. A rigged system makes that type of confidence all too easy.

If a defense lawyer ever did such a thing, of course, he’d find himself is serious trouble with the bar. We’re overwhelmingly the target of bar disciplinary proceedings, after all. Not those wonderful public servants at prosecutors’ offices. Plus, most prosecuting offices are so bloated and incompetent that you can never really show that the prosecutor in fact knew that no one had asked about an interview. They rarely do anything right, and they don’t bother to do other things at all. When when they lie about something they’re supposed to have done, there are always a bunch of un-followed or badly-executed policies they can pretend they relied on. The bureaucracy couldn’t be better designed to maximize confusion (and accordingly plausible deniability) when it comes to what would clearly be misdeeds if committed by anyone else.

The case plodded along without any victim input. Had he asked, the prosecutor would’ve known the victim didn’t want charges at all. The defendant was his dad, and the victim had started it. He hadn’t been entirely truthful about that to the police. Not that they would have cared if he had been, though, as lots of cops only hear what they want to hear. There’s the person who needs to get charged and the person who can help make that happen. Reality isn’t so neat, and situations can be very complex. Except in the minds of certain officers who see an arrest as the only solution to all of life’s problems and certain prosecutors who see a criminal case as a shining juggernaut of fairness even when no one involved wants it. Like prosecutors are fond of saying, it’s the state versus the defendant, not the victim versus the defendant. The show must go on, even if it hurts the victim as much as it hurts the defendant.

Unless this case was an anomaly, I bet the prosecutor used the victim he ignored and whose opinions he would’ve disregarded to move along the litigation. When a defendant requests a change to his release conditions, prosecutors love to convince the court to put off the issue due to a lack of notice to the victim they can’t be bothered to contact even once. When a defendant requests a better plea, prosecutors love to refuse because the poor victim they don’t care to contact deserves more. Ignore the fact the victim doesn’t want his father to go away to prison. Only prosecutors and officers know what justice is. The victim is another tool the state can use to get what it wants.

The case eventually got to the point where the victim was going to have to testify. He was subpoenaed, but it got continued. The prosecutor couldn’t be bothered to tell him, so he found out instead from his lawyer, who found out from the defendant’s lawyer. No one told him at all when it was reset. Not until the day of the next setting, when the prosecutor called the victim’s lawyer to go on a tirade about him and his client not being in court at the trial setting. The prosecutor, who couldn’t even do him the common courtesy of telling him not to show up for the first setting or when the next setting would be, was furious that his victim didn’t take a whole day off to show up at a pointless calendaring hearing he didn’t know about when he wasn’t really needed until the next day, or maybe that afternoon at the earliest.

The prosecutor also refused to offer the victim adequate immunity for his testimony. As he should have, the victim was going to plead the fifth because he too faced criminal liability for his involvement. Charge ‘em all and let God sort ‘em out, that’s how we do it in Arizona. The victim should’ve been worried. The prosecutor should’ve been worried too, but he wasn’t. The prosecutor, who needed the victim to prove his case, wouldn’t give the victim, who potentially faced criminal liability for his answer to every relevant question, anything more than immunity for only a single charge of the many that the prosecutor’s office could probably bring if it was so inclined. And they’re always so inclined, by the way. This is the land of overcharging on a scale most decent human beings would find appalling.

The prosecutor wouldn’t budge. Completely wrong on the law and with his case falling apart, he didn’t even realize it. Like I said earlier, though, a rigged system cultivates that sort of arrogance. He couldn’t see the importance of the victim in his case because he wins so frequently and so easily that he wouldn’t know a losing position if it kicked him in the ass. Unfortunately, it turned out the prosecutor won here too. The truth is probably that he was winning the whole time; not because he knew what he was doing or because he was doing what was right, but because he is powerful and finally figured how best to use his power to crush the defendant. Before anything actually came before the judge and after months of the defendant watching the state steamroll over defendants, defense attorneys, judges, victims, and witnesses, the prosecutor made a plea offer then told the defendant he would charge his minor son with perjury if he said one little tiny thing at trial that differed from his interview with police. The defendant couldn’t sign the plea fast enough. Yet another victory for justice, right?

Of course, none of this has a damn thing to do with justice. It isn’t about helping a person in need or giving a voice to the powerless either. It’s about power. To be more precise, it’s about the power of the state. It’s about hurting someone, which is what the state does when it uses its power to prosecute. Sometimes those someones might deserve it, but sometimes they don’t. Regardless, the state hurts everyone who dares to stand up to its authority, which is to say it hurts almost everyone. The state is a bully, and many of its individual agents are bullies, just like that prosecutor. They usually pick on the defendant, but they’ll re-victimize the victim too. I’ve seen prosecutors arrest and jail victims, calling them to the stand in chains. I’ve seen them threaten victims with perjury and other charges. We are a culture obsessed with punishment. Our desire to harm and to call it justice has swelled so large that it’s indiscriminate. The idea of the victim is a tool for the powerful. A victim in the way is just another person to hurt. We only care about the idea.

Filed under: Courts, Government Rants, Prosecutors, Victim's Rights · Tags: , , , , , , , , , , , , , ,

4 Responses to "A Victim In The Way"

  1. Andrew B says:

    Matt,

    Far be it for me to argue with you on the criminal justice system, given your extensive experience with it. That said, I wanted to share with you an experience I’ve just had with our local county attorney’s office (rural Arizona).

    I am representing a young woman (in her civil case) who was the victim of a violent sexual assault. The perpetrator was arrested within days and is being prosecuted. I have attended the meetings between the victim and the prosecutor, and my experience with that is very different from what you illustrate here. Defense counsel made a request to interview the victim, and that request was passed on by the prosecutor. The pros and cons of assenting to an interview were discussed. The victim’s thoughts on plea negotiations were solicited. The prosecutor only agreed to make a plea offer after the victim gave the okay. She was consulted in detail about every step of the case.

    I’m certainly not saying that my experience is the norm, but I thought it was only fair to point out that not all prosecutors ignore the victims or refuse to pass along requests for interviews. As with all walks of life, there are those that abuse the process and those who respect it.

    1. Matt Brown says:

      It certainly does work like that in many cases. In some jurisdictions, and with the best prosecutors no matter where they practice, it always works like that. I’ve found that there are more likely to be problems in a domestic violence matter, though, and some things, like failing to communicate a request for a defense interview, are become way too common way too rapidly because there’s pretty much no way a prosecutor is going to get called on it.

      I think the biggest factor is the victim’s position. If the victim wants blood, or if the victim is unsure about what he wants, the prosecutor is either cooperative or ambivalent. When the victim opposes prosecution altogether, that’s a different story.

  2. Andrew (the other one) says:

    Coincidentally, the 9th Circuit just ruled that a prosecutor threatening a prosecution witness with perjury is a violation of due process (U.S. v. Juan). Of course, the threat has to be communicated to the witness. With the prosecutor here just threatening the defendant, I’m sure a court could differentiate the case and hold the prosecutor blameless.

  3. Manny Campana says:

    You said it all brother, the truth, the whole truth & nothimg but the truth.

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