The victim in one of my domestic violence cases has recanted. She is very eager to tell everyone, myself included, that she lied about what happened and wants the prosecutor to dismiss the charges. I know for a fact she told the prosecutor she wanted absolutely nothing to do with the case and was not willing to participate in any way. The letter I sent to the prosecutor reminding him of his obligations under Brady and Kyles demanded, among many other things, interviews with all of the prosecution’s witnesses. The victim, of course, is one of them.

Keeping in mind the fact I know the victim told the prosecution she would not cooperate with them or participate in the case because she wanted the charges dropped, consider the following sentence:

Note; [the victim] wishes not to be interviewed.

That appeared in the prosecutor’s written response to my letter. I think it’s seriously misleading, if not an outright lie. Your thoughts?

Downtown RCC is in the basement of the central court building. When you get out of the elevator, you walk down a hallway and go to an area that looks a little bit like an airport terminal. There’s a line to check in, a help desk, and seating for defendants. I often see a private attorney or two waiting in line with the criminal defendants. I once asked the lady at the desk if I was supposed to wait in line and she couldn’t give me an answer. I never check in, but I wouldn’t be surprised if I’m supposed to. Awkwardly standing around not feeling entirely sure about what to do is a recurring theme at the Downtown RCC. I think they cultivate that.

If you want to talk with the prosecutor, you have to go to the negotiation room. To get there, private attorneys have to go stand by a locked door and wait for someone with access to open it. It’s usually a public defender who lets you in. Sometimes, it’s a sheriff’s deputy, but that will only get you through the first door. You’ll just end up stuck between two locked doors, waiting for a public defender to let you through the second. Nothing says professionalism quite like looking like a poor puppy dog stuck outside, patiently waiting for someone to let you in.

After you get past those doors, you’re in the public defender’s office. To get to the negotiation room, you need to walk past cubicles, a copying machine, and a conference table. Three right turns and you’re there. Of course, then you have to get in touch with the prosecutor. There’s a dry erase board that usually lists the prosecutors and their extensions. You have to figure out who’s assigned then give him or her a call using a phone in the negotiation room. After using the county attorney hot-line, you get to wait again.

Getting to the phone in the negotiation room is reminiscent of the opening sequence of Get Smart. Okay, maybe I’m exaggerating, but it’s definitely more complex than it needs to be. Plus, I think the negotiation room is actually directly adjacent to where where you have to wait for a public defender at the beginning. Would an extra door have been that difficult? Also, the prosecutor’s office has a little window next to where you first wait. Couldn’t they just put someone there and have them get the assigned prosecutor if you need to talk? Never mind, that makes too much sense.

In the negotiation room, you’ll probably find the police reports and a plea. The prosecutor you’ve summoned on the bat-phone is usually going to be one of a generally pleasant group of lawyers. The problem is that they have basically no discretion to do anything. Except in the rarest of circumstances, they can’t change the plea, approve that extra continuance, or dismiss a guaranteed loser of a case for the State. They’ll tell you with a smile that they can’t do a damn thing to help you. At least you’ll know who does have authority to approve your deviation request when you write it.

After accomplishing a whole bunch of nothing, you’ll probably want to communicate what’s happened to your client. If your client is in custody, the fun has just started. You get to backtrack through the cubicles and enter a hallway with little visitation booths. That’s where you get to wait looking helpless until a sheriff’s deputy gets your client for you. You’d better be patient. There’s a good chance you’ll get to wait quite a while before you can contact a deputy to get your client, and a great chance you’ll have another significant chunk of time to wait before seeing your client.

If your client only speaks Spanish and you want an interpreter, you’d better clear your schedule for a day. Okay, okay. Not really. But it seems like that. Downtown RCC experts tell me a defense lawyer’s best bet for an interpreter is waiting outside of those first two locked doors. Instead of looking like a house pet that’s been locked out, you now get to look like a zombie. For best results, approach every professional-looking person who walks by and desperately asking them if they’re an interpreter. If you get one, you begin the process described in the preceding paragraph.

I wouldn’t shed a tear if I never had another Downtown RCC case. I might like it if I was a public defender or a prosecutor (or someone who liked watching private attorneys look dumb, for that matter), but even public defenders and prosecutors seem to hate it.

Every RCC experience I have leaves me wondering who thought it would be a good idea to set it up the way it is. Anyone know? More importantly, if any of you know, do you know if they still like their idea?

Of course, that’s not always the case. The disparity in treatment may be real, and the two defendants may be similarly situated.

Differences could be caused by an ineffective defense attorney. The defendant may have a lazy public defender who sees no point in trying to get a better offer. He may have an appointed attorney who gets paid extra for trial and has no incentive to get a better plea. He may have hired a bargain basement private lawyer who considers it his job to make every client feel good about taking the first crappy plea the state throws their way.

The cause for disparity could also be the assigned prosecutor. We are so concerned about making sure people aren’t treated differently that we’ve created a system where everyone who chooses to go to trial gets royally screwed if they lose. We’ve made things equally bad for everybody in that situation. What we haven’t done, however, is eliminate plea-bargaining.

As I’ve discussed before, you have no right to a plea. I deal with some great prosecutors almost every day, but I also deal with some terrible prosecutors. The worst prosecutors make ridiculous offers. They don’t know the facts of the cases they’re prosecuting, and they don’t care. As long as prosecutors can offer plea bargains to lesser charges or dismiss counts, people are going to be treated differently. The assigned prosecutor can be the major factor in what happens to a criminal defendant.

Rigid plea-bargaining guidelines do nothing to promote equality. They just shift the initial burden to the defense attorney. The prosecutor will make the same offer he or she always makes, then it’s up to the defendant’s lawyer to try to fix it if it’s wrong. A defendant with a good lawyer is more likely to get a fair offer. A defendant with a terrible lawyer may have no chance. The buck still stops with some prosecutor who has discretion about the prison term or whether to offer the defendant probation.

I’ve had many clients charged with even the highest level felonies plead to misdemeanors with no jail. I’ve convinced many prosecutors to dismiss cases based on weak evidence. Sadly, I’ve also had clients charged with stupid low-level felonies based on minimal evidence grudgingly go to trial because the prosecutor wouldn’t make a reasonable offer.

The system doesn’t treat everyone equally. When the specific circumstances of a case, like the assigned prosecutor, cause a defendant to be treated differently from others similarly situated, it’s unfair. It’s also a reality we can’t do much to change.

When I was a kid, I always got the same response from my parents when I complained about something being unfair. “Life isn’t fair,” they would say. When people complained about his class, one of my high school teachers used to say in an unbelievably thick west-Kentucky accent, “there are three fairs in the world; the county fair, the state fair and the world’s fair. You ain’t at any of them.”

They’re probably right. The system isn’t going to be fair. Some people are lucky. We can try to treat everyone equally, but our system will never be perfect. Most of the time, our best efforts will only make things worse. We will only succeed in achieving equal unfairness for most.

The system is run by humans. Those humans have a job to do. Many of them have very specific ethical obligations. Some of them will take their jobs and ethical obligations more seriously than others. Because of that, some defendants will see the cases against them dismissed, while others will have to go to trial or take an unappealing plea bargain.

Unless we take discretion away from prosecutors entirely and remove their obligation to only pursue good faith claims, people are going to be treated differently. The only way to really make things equal is to remove the few remaining safeguards that prevent unfairness.

Do we really want that?

Why would the state choose to prosecute such a case? What else can they do to him? He’s going to enjoy his field trips to court. If he goes to trial, it’s going to feel good to wear street clothes and take the restraints off, even if it’s just for a little while. What kind of plea is a “lifer” going to want to take?

The prosecutor knows all of this because I told him. He doesn’t seem to care.

Dockets are already too full. Everyone in the system is already overworked. When I hear about budget cuts, I wonder how much of the budget goes to meaningless prosecutions. Win or lose, the practical effect of my client’s case is going to be the same: it won’t matter. We will all just be a little bit busier for the next few months.

I will file motions. In this case, there may be a lot of them. I suspect I will have to litigate some discovery issues, and I will spend time dealing with voir dire and jury instructions. I’ll write and send out a variety of letters and notices before all is said and done. The state will have to deal with everything I submit, and the judge will have to rule. I will conduct officer interviews, prepare my arguments, and devote a few days to trial.

Trials are expensive. Court personnel will be in attendance, and the sheriff will have to transport my client there from prison. My client will need clothes, and a court reporter will have to be there for all proceedings. Jurors will take time from their busy schedules to attend trial, and the judge will not be hearing other cases. The courtroom will be occupied, air-conditioning blasting.

I enjoy trial, but I’m not crazy about wasting tax dollars on pointless cases. This case is pointless. Does anyone disagree? Under what theory of punishment can the prosecution be justified? Why should taxpayers be forced to pay for such a ridiculous show?

Please, someone enlighten me.

Knowing that, what do you say when you know your client’s new offense was allegedly committed while he was out on bond for another felony offense and the judge asks, “counsel, do you have any recommendations regarding bond?” Does it matter if the same judge is assigned to the client’s other case and presumably knows that the client was out on bail when he or she supposedly committed the new offense? Does it matter if the prosecutor doing coverage, who recommends a bond amount, is the assigned prosecutor on the client’s other case and presumably knows the client was out on bail when he or she supposedly committed the new offense?

In a situation like that, everyone but you is operating under some kind of false assumption. It’s not uncommon. In fact, I encountered a few situations like that last week (hence the post). They either don’t remember your client was on release, or they don’t know about Article 2, Section 22. Regardless, you know they’re wrong. You’ve probably told your client he isn’t entitled to bond, and when the judge asked you for a bond amount, the client was probably grinning from ear to ear thinking it was his lucky day.

In a situation like that, the State Bar of Arizona would probably direct you to Ethics Rule 3.3, Candor Toward the Tribunal. Here it is:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Sure, it’s an important rule, but does it really apply? The constitution is legal authority, but is it directly adverse to the position of your client? Your client wants bond, obviously, but his position was that he couldn’t get it. The judge and the state are the ones who hold the position which is contrary to legal authority. Also, is arguing for bond a false statement of fact or law? Doesn’t the rule seem to only require you correct a false statement of material fact or law that you previously made to the tribunal?

Some of these questions are answered to some degree by ethics opinions, but I don’t think the answer is clear. How big of a factor is the way the judge words the question? Does merely asking for recommendations regarding bond give rise to a duty to tell the court your client isn’t entitled to it? What if the judge assumes the client gets bond and just asks you for an amount and a reason? What if he just asks you for an amount? Just a reason? Do you argue for the bond amount you know your client wants, or do you just throw out a number and say as little as possible? Is the way you word it going to make a difference? What if you say, “if the court is inclined to set a bond amount, X amount is appropriate for Y reasons?” Can you argue freely if you assume the court and prosecutor think proof is not evident or the presumption not great as to the present charge?

You can probably guess by now that I’m just going to ask questions here without really answering any of them. Every situation is different, so I don’t think there’s any single right answer. However, I think it’s fair to say any good criminal defense lawyer is going to keep his or her client’s interests in mind at all times while advocating for the clients within the boundaries of the ethical rules (duh). In the right situation, there are ways to argue for what your client wants.

One fascinating thing to me about what I’ve described is that I don’t recall law school professionalism ever covering a fact pattern where everyone was wrong but you. Maybe they thought learned judges and prosecutors didn’t make mistakes like that. If so, they’re wrong. Situations like the one I’ve described happen regularly. More often than most people think.

Because of that, it’s probably not a bad idea to figure out in advance how you’d react.

If a defendant has more than two historical priors, the additional priors may be considered aggravating factors which merit a longer sentence within the statutory range, but there aren’t any special statutory sentencing ranges for people with three, four, or five historical priors. Usually, the most a judge can give someone with two historical priors will be the same as what the judge can give someone with three or more historical priors.

Prosecutors regularly get that wrong. I recently had a prosecutor argue that my client, who had a ton of historical priors and was charged with a class two felony, could get more than the statutory maximum of 35 years. When I asked, the prosecutor couldn’t tell me which law or laws authorized a longer sentence.

The prosecutor agreed that my client couldn’t get less than the mandatory minimum no matter how many mitigating factors the judge found. The law put my client in a specific category, so the preset range for that category applied. My client couldn’t get a sentence under the minimum, but he also couldn’t get a sentence over the maximum. The prosecutor seemed unwilling to make that last jump.

I guess prosecutors are just so used to having the law work only in their favor and against defendants that they forget to apply the same logic to maximum sentences that they apply to minimum sentences.

I don’t like the county attorney’s policy, but it isn’t the worst. Not by a long shot. My vote is for the City of Mesa Prosecutor’s Office, which charges $5.00 for its mandatory, automatic disclosure pursuant Rule 15.1 of the Arizona Rules of Criminal Procedure. Rule 15.1 lists a lot of discovery that a prosecutor “shall make available” to a defendant. The list isn’t short, and it includes the police reports. Because Mesa Municipal is a misdemeanor jurisdiction, pretty much everything is due by the first pretrial conference.

When you show up at your first pretrial in Mesa, the prosecutors will let you look at the disclosure, including the police reports, but they won’t let you take it, copy it, and return it. Is that really making it available? You can beg and plead, but they’re going to insist on getting $5.00 before you can have a copy of your own. The policies written on the office’s discovery notice itself confirm that the only way to get a copy is to pay up. The notice also explains that they charge an additional $0.10 per page for other mandatory disclosure items like police reports for sentence aggravation, HGN and DRE logs and manuals, FST manuals, alco-sensor logs, and Intoxilyzer calibration logs and manuals. They exhibit a characteristic lack of humor when you try to opt for $0.10 per page for the initial disclosure instead of the flat fee of $5.00. I think they don’t like counting pages.

By requiring that defendants pay them for copies, the city prosecutor is pretty clearly violating the plain language of Rule 15.1. I can’t see how their policy could possibly be permissible under a rule that says “shall make available.” Is it okay because they’re only charging $5.00? Would it still be “available” if they charged $500.00? How much would they have to charge before it becomes a problem? What if they didn’t give out copies, but just let defense lawyers read the report and take notes? The rule used to say “for examination and reproduction” in relevant part, which would have made Mesa’s conduct even more outrageous (and they did it back then too), but I can’t find any legislative history suggesting the change was intended to allow prosecutors to limit the scope of availability. How can they possibly read the rule to require anything other than what they refuse to do?

Additionally, it seems obvious to me that city prosecutors are violating the Article 2, Section 24 of the Arizona Constitution. The Arizona Consitution provides a guarantee against being compelled to advance money or fees to secure constitutional rights, and Arizonans have a constitutional right to a copy of the nature and cause of the accusation against them. I think the word “copy” implies a reproduction of something in writing. The words “cause of the accusation” mean something more than just the broad language of the indictment, right? I read the consitution as giving defendants a constitutional right to a copy of the police report. They therefore have a constitutional right not to be compelled to pay for it. Do any of you disagree? Again, how can the City of Mesa possibly think that what they’re doing is acceptable?

Unfortunately, I suspect the city doesn’t care if what it’s doing is okay because it doesn’t have to care. Defense attorneys have been filing motions arguing these points for years. I’ve seen a motion as old as 2002. Who’s going to appeal over a $5.00 discovery fee? Maybe a judge will occasionally grant a defendant’s motion by compelling a prosecutor to provide the report free of charge, but I seriously doubt a judge is going to dismiss the case. Is saving $5.00 worth the lawyer’s time? Certainly not if the lawyer is being paid by the hour. If one defendant wins one case, who’s going to stop the prosecutors from violating the rule in every other case? The court isn’t going to issue some kind of standing order. The city’s discovery fee probably brings in a decent amount of money each year. Who cares about one tiny little profitable, illegal policy?

In criminal defense, the state often doesn’t have to follow the rules when enforcing them. The law is what judges say it is. In Mesa, I’m guessing that the prosecutors either don’t care what the judges say and the judges look the other way, or the judges just ignore the rules altogether. I think both situations are equally plausible. In fact, years of a terrible policy suggest to me that the one of those options is almost certainly the case. It doesn’t leave me with a good feeling.

Believe it or not, I am not going to lie and cheat in order to gain some kind of advantage. My goal in this pretrial is not to trick you. Although you are just covering, I am not a high school student, and I do not view you as a substitute teacher. I do not intend to do anything to jeopardize my bar license, now or ever.

You have looked over the file for about ten seconds. It isn’t even your case. Please look over things a little harder before you question my credibility. It might not be on the first page, but it is in your file. You will look very stupid when it turns out the judge knows the case better than you do and realizes I am right.

If you are having trouble grasping these concepts, I can put you in touch with one of the many fantastic prosecutors I encounter almost every day in almost every jurisdiction. You are not too old to figure out how this prosecutor thing works. Some of your colleagues are great at their jobs, and you could learn a lot from them if you wanted.

I recently had a client who got a DUI just before the law changed and had a prior DUI slightly over seven years old. By “slightly” I mean a matter of days. Because of the date of the offense, hers was a typical extreme DUI. No special enhancements applied, and neither did the crazy new law. Based on the facts of the case, I expected the prosecutor’s initial plea offer to be ten days of jail (with twenty suspended) and mandatory minimum fines, a pretty typical extreme DUI plea for that office. I was wrong.

The prosecutor offered my client a plea that gave her more jail than she would have gotten going to trial and losing. On top of that, the plea included extra fines and other collateral penalties. The prosecutor’s reasoning? Well, my client “almost” had a prior DUI and “almost” fell under the new law. The prosecutor thought that meant my client deserved a harsher plea than the average extreme DUI defendant.

Some prosecutors might make that offer hoping I wouldn’t notice the date of offense. Some prosecutors might not know they are supposed to apply the law in effect at the time of the offense. This prosecutor, on the other hand, acknowledged that my client was looking at ten days in jail and still offered her a plea to more. My first reaction was to laugh.

How is that a plea? Does she understand how plea agreements work? Prosecutors usually don’t like it when I offer to draw them diagrams. They also don’t like it when I offer them my old law school textbooks to review. In this case, maybe a diagram would’ve helped. Maybe a refresher on consideration from first year contracts might have cleared things up. I didn’t ask, but maybe I should have. Even though the plea ultimately changed to something much more reasonable, I’m pretty sure the prosecutor still thinks that was a good offer. Thinking about that makes my head hurt.

I’m not a very trusting person, and I’m especially suspicious when there’s no way to verify what someone tells me. That’s the case with victim interviews. I bet a lot of prosecutors never bother asking victims, but in most instances, I have no way of proving it. I can’t later seek out the victim and find out. That would be a bar complaint waiting to happen. If the matter goes to trial, I don’t normally use my cross-examination time, my first opportunity to question the victim, to find out whether he or she was told I wanted to do an interview. Maybe I should.

I don’t think it’s possible to overstate the advantage the prosecution can gain by preventing defense attorneys from interviewing victims. Most of the time, there are no written statements from victims. You generally have only a vague idea about what they’re going to say. You have no clue how believable they will be. You won’t hear the little inconsistencies in their stories until you get to trial, so it creates a lot of unnecessary pressure. It may be that you end up having little if anything to work with, or the state’s case could unravel altogether. When the only evidence against a defendant is going to be the testimony of victims, it can be extremely difficult to assess the strength of the state’s case prior to trial.

Prosecutors have a lot to gain by not asking victims about doing a defense interview. There’s no good way to make sure a prosecutor hasn’t lied about asking them. I had one case where my client swore the victim moved to Kansas, and the prosecutor kept swearing she had contacted the victim. She kept telling me my client should take the plea because the victim would show up for trial. Trial came around, and there was no victim. Case dismissed. I’m pretty sure that prosecutor was lying to me, and she probably wasn’t the first one. I don’t think I’m being unreasonable by not trusting prosecutors to do something that might ruin their case and that I have no way of showing they didn’t do.