Imagine a case where a guy gets popped on drug charges and the cops say they’ll not submit anything for charges if he catches a bigger fish for them. The guy holds up his end of the bargain, but the cops screw up the sting. The cops then go ahead and submit everything to charge him.
A prosecutor later needs the guy to testify against the bigger fish when the cops finally catch him. The guy and his former lawyers both claim she promised him no jail or even a dismissal if he did what she asked. Again, the guy follows through, this time securing a conviction. The prosecutor makes him an offer to jail anyway, denying she made any promises and pointing out nothing is in writing.
In a situation sort of like that, I once got involved with the case and met with a judge and the prosecutor to try to settle some of the issues. I’ll never forget the conversation in chambers.
With regard to the deal with the cops, the judge pointed out there was nothing in writing. “This guy has been through the system and knows he can’t trust cops.” The judge chuckled, “either he’s stupid enough to deserve it, or he knew better.” He added, “I’m disinclined to believe anything that a felon like this guy says anyway.”
With regard to the deal with the prosecutor, he repeated his thoughts regarding the deal with the cops. When I told him what the former lawyers said, he picked it apart and made a number of comments about how it was obviously poor lawyering on their part. He said he’d take the word of the prosecutor over what they said any day.
After explaining how he didn’t think any of the promises were true in the first place, he said that he didn’t think it would matter even if they were. “I can’t force the state to make an offer.” When I suggested a judge might be able to dismiss for prosecutorial misconduct or disqualify the prosecutor’s office, he looked at me like I was describing the Chewbacca defense to him. It was unthinkable that any judge would ever do such a thing.
Finally, I explained the guy never would’ve cooperated had he known he might end up in custody. He’d be a dead man if he went away, as he’d already received threats. The judge’s response was the most concerning part of whole concerning conversation:
Look, we all know this guy is not going to quit committing crimes. He’ll be back. You need to tell him he’s going to do time now or he’s going to do time later. It’s inevitable. All these guys know they’re going to jail, it’s just a matter of whether it’s on this case, on their probation violation, or on the next case.
How well do you think that conversation would’ve gone over? What defense attorney would even consider saying something like that to a defendant? What judge would advise it?
I’m used to people who smile and give a thumbs up with one hand while stabbing the defendant in the back with the other. I frequently wonder what they’re actually thinking when they appear so friendly. With the judge from that conference in chambers, I probably don’t want to know. If that’s what he says, what he thinks is probably even worse.