You’re Screwed Just The Same

Accomplice liability must be a tough thing to grasp, as I often hear defendants argue about how they shouldn’t be sent to prison for various things because it wasn’t totally their fault. They didn’t kidnap the victims, they just continued to hold them against their will after someone else snatched them. They didn’t assault the victims themselves, they just drove their co-defendants to the victims’ house to do it. I could go on and on.

Addressing those sorts of arguments, I sometimes hear prosecutors and judges say that it didn’t matter to the victims who made what decision and who took over which responsibilities; they’re awful crimes, and all participants should face the music. In one case, the prosecutor asked, “do artificial distinctions comfort someone in a locked room with a gun to the head?” Under the circumstances as I understood them, I found the prosecutor’s arguments very well presented and fairly compelling, as did the judge. I thought about them recently in a hearing on a driver’s license suspension.

My client was looking at a year-long license suspension for a DUI because she supposedly refused a blood test after being arrested for DUI. She had to take off time from work to attend the hearing. We had a compelling argument against the suspension, and had we proceeded with the hearing as planned, the state wouldn’t have known beforehand that we saw through its charade and could support our claims with its own officers’ reports and records. Had the hearing went ahead as planned, the officers wouldn’t have realized their case had serious holes. They wouldn’t have had time to try to patch them.

Clearly caring a great about artificial distinctions, the judge for the hearing reset the case because all of the officers needed to screw my client weren’t adequately notified. “It was our fault,” she said apologetically to officer who did appear. Because it was the fault of one part of the government and not of another, my client was disadvantaged.

When I argued that it didn’t matter who made the mistake and that my client had taken time off from work to attend, the judge explained again how it was the court’s fault and not the other officers’. The supposedly impartial administrative law judge, who subpoenas officers, examines them, and at times even overrules defense objections to her own questions of the witnesses, was bewildered by how my client and I could have a problem with a continuance. She explained once more, slowly, how her office hadn’t issued all the subpoenas it should have. It was like she didn’t think we heard her the first time. How could my client possibly be upset about having to come back and probably lose? It wasn’t the cops’ fault!

I liked the officer who appeared. He made a comment at the start about how we were going to win because his colleagues weren’t present. He was honest to the judge about how he tried to call the other officers but they didn’t answer, though the judge had already clearly indicated her desire to give his fellow state actors another chance. After my argument against resetting, the officer said he agreed with me and thought it would be unfair to reset it. He came off as a good guy, a reasonable public servant with an impressive ability to look at the situation fairly and impartially. I wish he’d been the judge too. Unfortunately, I doubt his colleagues will share his attitude. They’ve probably already figured out excuses to explain away any issues.

I learned early on doing criminal defense that not all prosecutors call themselves prosecutors. Some of them have badges. Others wear robes or sit behind clerks’ desks. A rose by any other name would smell as sweet, right? The difference between the various state actors is often just a meaningless distinction, the sort of silly argument that would get rolled eyes and an admonishment if it came from a defendant because those things don’t matter to the victims, the people who suffer because of it. When the victim is the defendant and the artificial distinction comes from the government, however, it couldn’t be more important.