posted
This is a problem paper I did for my Prosecution Clinic. The assignment was to write about any situation which would be good fodder for class discussion about how a prosecutor makes day-to-day decisions. I've turned it in, and it's not graded, so I'm not asking for help on my homework. I'm also satisfied that I acted ethically, although I'm not satisfied that what was done was the best possible thing that could be done.
I'm most interested in describing the type of event that most people never see in our criminal justice system, and also seeing what people think about the situation, both from an overall outcome-based standpoint and from a role-based standpoint - that is, what should the prosecutor, defense counsel, and judge have done in this situation?
Of course, if it's too long, I'll understand.
quote:The proceeding was a probation violation in Circuit Court. The defendant had been convicted of felony cocaine possession in 2003 and received two-years of supervised probation and a two-year suspended prison sentence. Later in 2003, the defendant failed to show up for a mandatory meeting with her probation officer. She showed up again in 2005 to “clear up” her outstanding probation issues. Just before the judge started hearing the probation violations docket, her defense attorney asked me for a continuance because he had just received the file. My supervisor denied the request because the hearing had been scheduled for 3 weeks.
The defendant admitted guilt but testified to the following: 1.) she had violated probation to go to Colorado to “get clean” and that she had successfully completed an in-patient rehabilitation there; 2.) she was engaged to be married and also 6 weeks pregnant; and 3.) she was almost done obtaining an associates degree at a community college in Colorado. During cross, I established the following: 1) her supervised probation had included drug rehabilitation counseling; 2.) her only evidence of rehabilitation or education was her own testimony; and 3.) she had been convicted of filing a false police report while in Colorado.
The defense asked the court to recognize her progress in rehabilitation and education and requested that she be given a “second chance” by either transferring her probation to Colorado or allowing her to complete her supervised probation in Virginia. I made no specific request for jail time but pointed out that we had little reliable evidence of her “getting clean.” If she had wanted to get clean she could have done so on probation, and as such the defendant had already refused her second chance – probation. The judge gave her 8 months – an amount that meant she would likely have her baby while in jail. He noted the lack of any evidence of the defendant’s turnaround and her conviction for filing a false police report. To me, this suggests that had she had a transcript from the community college and records of from the rehabilitation clinic, she might have gotten a lighter sentence.
This situation suggests several related issues: First, should we have agreed to the continuance? The defense attorney did not explain to us what type of evidence he could have obtained. Second, did the defendant receive adequate representation. The defense attorney did not move for a continuance, nor did he appear to have read the portion of the probation report about the Colorado conviction. Third, the report was against a boyfriend for domestic abuse, and it is likely that this conviction was based on her recanting about the abuse either at or before trial.* This suggests that the defense attorney could have mitigated the effect of the conviction.
All three issues suggest a single question: what it our duty as prosecutors in the face of inadequate representation by defense counsel? I am comfortable with the idea of impeaching the defendant’s testimony – as a prosecutor, that is my job, and I have no idea if she was telling the truth. But one of the reasons the adversarial process is supposed to help achieve justice is that there is a defense attorney doing his best to present the opposing case. In this case, the defense attorney did not effectively present his case, and the defendant received a fairly harsh sentence.
*Recanting by domestic violence victims is common. This type of prosecution underscores the frustration prosecutors have with victims who recant and go back to their abusers and raises complicated issue in its own right.
posted
She did not get good defense -- or, the DA knew she was lying about getting "clean" and an A.A. degree, and just hoped y'all would let it slide.
And you are quite correct about the "recanting." Again, a competent DA, or one who gave a "bleep" would ensure she was receiving services from a victim advocate.
Just my humble opinion on a first read.
What is your duty? Frankly, I would like to think that the prosecution would step up to the plate and say "Your Honor -- it gives me no pleasure to say this, but frankly, I do not believe the defendent is receiving adequate defence."
However, I have no idea what works in the real world, so my opinion is just that. Opinion.
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posted
I agree with Shan. Also, was the defense attorney court appointed? If so then I think by denying a continuance, the judge was punishing the defendant for something that was completely out of their control.
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posted
Couldn't the judge have given her the harsh sentence, and then made a provision to commute it to a lighter sentence if she could provide the documentation?
Her defense attorney should have looked into that and asked for the documentation from her, that seems like a big slip up from him, but the Judge, in the best interests of fairness to the defendent, could have allowed for a short continuance to make sure he was adequately informed of the case.
I do wonder though why she had to leave Virginia for Colorado to get help, and why she couldn't keep the court appraised of her situation as it unfolded.
To me, there's just too many unanswered questions for it to have been a competent trial.
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If she's not clean, at least the baby will be born in a safe environment, where it's harder for her to obtain drugs during the pregnancy. Not that the baby's rights should supercede hers to a fair sentence and a competant DA. Just saying.
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quote:What is your duty? Frankly, I would like to think that the prosecution would step up to the plate and say "Your Honor -- it gives me no pleasure to say this, but frankly, I do not believe the defendent is receiving adequate defence."
However, I have no idea what works in the real world, so my opinion is just that. Opinion.
I'd also love to see this happen, but I also have no idea if that sort of thing happens in real life, or if it's only something I should expect (albeit more dramatically) in a movie.
Regardless, I think you acted ethically - both as a human being and as a prosecutor with a duty to uphold.
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posted
I am wondering -- could not this situation have been resolved by the judge (or someone else) simply calling the secretariates of the community college and the rehabilitation clinic and ask if they have/have had a person with the defendant's name on the roles? I suppose the clinic might be reluctant to release such information due to issues of privacy, but the defendant's reaction to the suggestion might at least give a clue as to truthfulness of her claims.
As regards to the roles of the prosecutor and the judge when the accused receives inadequate defense, my opinion is that both have a (moral) duty to ensure that all relevant facts are being brought to light; but then, I'm trained in a system where less weight is given to adversality and where the prosecutor is legally required to be objective and, is it neglected, both him the judge steps in and protect the interest of the defendant.
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posted
But isn't it the responsibility of the defendant to provide the information backing her claims? That she provided no evidence, while knowing she was going to court, spells bluffing to me.
I doubt that either the college or the clinic would provide information over the phone, and I doubt the judge would accept such anyway. The college and rehabilitation clinic would likely have to receive, at the very least, waivers signed by the defendant giving her permission for them to release such information. The agencies involved may or may not be willing to receive waivers by fax. The agencies involved would have to dig up the information in a format that would be accepted by the court, including appropriate signatures by appropriate people in authority. The judge may or may not accept documentation by fax - I'm willing to bet it's originals only. (I'm not American and I do not know US law - I only watch Law & Order, CSI, and other such shows ) That takes time. Expecting a judge to make a few phone calls doesn't, to me, seem at all reasonable.
It's the responsibility of the defendant to make sure her lawyer has sufficient information and the documentation needed and into the court on time. Granted, the lawyer got the case late, but she still could have gotten documentation together, even if it was inadequate, which could at least have provided a reason for the court to provide a continuance to get proper documentation together.
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quote:It's the responsibility of the defendant to make sure her lawyer has sufficient information and the documentation needed and into the court on time.
Granted, when it is prima facie clear that the defendant has violated her parole, it is reasonable to expect that she on her own iniative provides evidence of the mitigating circumstances she wishes to submit. However, in principle the burden of proof is on the prosecutor to show that she is lying even if she shows up with nothing but her word to back up her story (which Dag attempted to do by bringing up arguments discrediting her story).
On the other hand, if her story were true, neither Dag, the judge nor society has any particular strong reason for sending this person to jail. If no evidence could be obtained during this trial (and I agree that perhaps my idea of a couple of phone calls might be a tad unrealistic), and since the defense councelor had not had time to do his own research (and his client might, like many of us, have been a little short-sighted/stupid), I don't think a continuance would have been unreasonable.
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posted
Very quick - I'll cover the rest in more detail later:
quote:If she's not clean, at least the baby will be born in a safe environment, where it's harder for her to obtain drugs during the pregnancy. Not that the baby's rights should supercede hers to a fair sentence and a competant DA.
If she's not clean, the sentence was fair. In fact, it was relatively light.
Two other things to realize: First,there are many possible reasons the DA wouldn't want to bring in such evidence. For example, she might have left rehab early, or had a bunch of withdrawals on her transcript.
quote:However, in principle the burden of proof is on the prosecutor to show that she is lying even if she shows up with nothing but her word to back up her story (which Dag attempted to do by bringing up arguments discrediting her story).
Not really - we had the burden in proving guilt, but she admitted guilt. It's possible she would have gotten the same sentence even if her story were true. She still fled her supervised probation.
I agree that wouldn't be the best outcome, but it might be my duty to advocate for jail time anyway, depending on the policies of the elected head prosecutor.
Thanks for all the comments. More later.
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quote:Not really - we had the burden in proving guilt, but she admitted guilt. It's possible she would have gotten the same sentence even if her story were true. She still fled her supervised probation.
Over here (Sweden), the prosecutor has the burden of proving the absence of extenuating circumstances are such advanced by the accused. In practice this burden is of course often easier to satisfy than that of the main issue regarding the guilt of the alleged offender, but it is there nonetheless.
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quote: Just before the judge started hearing the probation violations docket, her defense attorney asked me for a continuance because he had just received the file. My supervisor denied the request because the hearing had been scheduled for 3 weeks.
. . .
Second, did the defendant receive adequate representation. The defense attorney did not move for a continuance, . . .
Bolding mine [KarlEd].
quote:Originally posted by Amanecer: I agree with Shan. Also, was the defense attorney court appointed? If so then I think by denying a continuance, the judge was punishing the defendant for something that was completely out of their control.
Bolding mine [KarlEd].
Just a clarification for me. The Judge didn't deny a continuance because there was never a motion before him to grant one, correct? The defense asked the prosecution to allow a continuace (I'm presuming from your writing that it would have been within the prosecution's rights to grant one, in which case it wouldn't have gone before the judge until after the continuance, if it were so granted??)
If I am correct in this, then the the defense requested a continuance, then having been denied one by the prosecution before trial, failed (or chose not to) request one (via motion) from the judge at the actual trial. So you list this as possible evidence of the incompetence of the defense, right? (I'm asking because I don't know exactly how this works, and either Amanecer is mistaken or you contradict yourself in your description of events. (and of course I'm assuming the former ) (No offense Amanecer) Posts: 6394 | Registered: Dec 1999
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quote:Two other things to realize: First,there are many possible reasons the DA wouldn't want to bring in such evidence. For example, she might have left rehab early, or had a bunch of withdrawals on her transcript.
Would the DA have been expected to explain in detail the reason he wanted a continuance if he made a motion before the judge? Is it possible that he didn't move for one, not because of incompetence but because he didn't want to subsequently have to produce the evidence, which might be more damning for the reasons you state above?
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quote:Just a clarification for me. The Judge didn't deny a continuance because there was never a motion before him to grant one, correct? The defense asked the prosecution to allow a continuace
Correct, no such motion was made, so the judge didn't deny anything.
quote:(I'm presuming from your writing that it would have been within the prosecution's rights to grant one, in which case it wouldn't have gone before the judge until after the continuance, if it were so granted??)
Technically only the judge can grant one, but if there hasn't been one, the judge will almost always grant one if the other side doesn't object. So in practice, it was up to us (really, my supervisor).
quote:Would the DA have been expected to explain in detail the reason he wanted a continuance if he made a motion before the judge? Is it possible that he didn't move for one, not because of incompetence but because he didn't want to subsequently have to produce the evidence, which might be more damning for the reasons you state above?
Exactly - it is entirely possible she was lying. It's also possible (likely, even) that the DA did not inquire too deeply. If he's not aware that testimony is a lie, he can still ask questions to elicit it. If he knew it wasn't true, he couldn't have asked her the questions. There's good reason for the DA not to get into the habit of asking their clients questions that might expose a client's lie.
And there's no doubt that defendants lie to their attorneys all the time.
quote:Over here (Sweden), the prosecutor has the burden of proving the absence of extenuating circumstances are such advanced by the accused. In practice this burden is of course often easier to satisfy than that of the main issue regarding the guilt of the alleged offender, but it is there nonetheless.
This is the case in some circumstances (insanity in some states, or lack of extreme emotional distress in murder/manslaughter issues), but not all. In this case, there's no formal legal defense to probation violation based on "I went somewhere else to get clean." It's not a legal excuse, but something for the judge to take account of in sentencing.
quote:And you are quite correct about the "recanting." Again, a competent DA, or one who gave a "bleep" would ensure she was receiving services from a victim advocate.
Yes, if my surmise on the recanting is correct, then it should have been relatively easy to mitigate somewhat. It's even possible she left because of her abusive boyfriend's influence - something I don't think excuses it, but should mitigate some. I'm trying not to be too hard on the defense attorney, because the public defenders are extremely overworked. My single biggest gripe with the system is the lack of adequate funding for appointed counsel/public defenders.
quote:Couldn't the judge have given her the harsh sentence, and then made a provision to commute it to a lighter sentence if she could provide the documentation?
Her defense attorney should have looked into that and asked for the documentation from her, that seems like a big slip up from him, but the Judge, in the best interests of fairness to the defendent, could have allowed for a short continuance to make sure he was adequately informed of the case.
The judge would have had to do so sua sponte (on his own initiative) because of the lack of a defense motion. Also, I asked about transcripts, and that provided the perfect opportunity to ask for a continuance. The defense not doing so probably suggested to the judge they didn't exist.
We really rely on the adversarial system to get the right evidence before the judge. Judges can ask questions on their own, but it's not in their nature to seek beyond the adversarial process like that. Especially when guilt has been admitted and the evidence deals only with mitigation.
quote:I do wonder though why she had to leave Virginia for Colorado to get help, and why she couldn't keep the court appraised of her situation as it unfolded.
This was the weakest part of her testimony. I even asked her why she had to leave to get help (something I normally wouldn't do on cross - I like short, leading questions then) to give her a chance to say something good.
quote:To me, there's just too many unanswered questions for it to have been a competent trial.
Again, there are many situations where a perfectly competent defense attorney would want to not go further. So, from our perspective, some competent trials will look like this. My gut says she was telling the truth, but that's not enough to get me to not impeach.
quote:But isn't it the responsibility of the defendant to provide the information backing her claims? That she provided no evidence, while knowing she was going to court, spells bluffing to me.
I doubt that either the college or the clinic would provide information over the phone, and I doubt the judge would accept such anyway. The college and rehabilitation clinic would likely have to receive, at the very least, waivers signed by the defendant giving her permission for them to release such information. The agencies involved may or may not be willing to receive waivers by fax. The agencies involved would have to dig up the information in a format that would be accepted by the court, including appropriate signatures by appropriate people in authority. The judge may or may not accept documentation by fax - I'm willing to bet it's originals only.
Evidence rules are relaxed in such hearings, and although I might be able to successfully object, I wouldn't if I thought they were authentic.
We did 12 probation violations in a little more than an hour. Most had no witnesses called - admit guilt, give a quick sob story to the judge, sentence, done.
There's anothr aspect to this: the policy of the commonwealth attorney is to seek pretty harsh punishments for probation violations, something I'm not against. Probation can only work if there are stiff penalties for violation. At least one of the prosecutors didn't think that her story warranted a much lighter sentence even if true.
quote:What is your duty? Frankly, I would like to think that the prosecution would step up to the plate and say "Your Honor -- it gives me no pleasure to say this, but frankly, I do not believe the defendent is receiving adequate defence." However, I have no idea what works in the real world, so my opinion is just that. Opinion.
I saved this one for last, because it is the heart of the issue for me. Without more proof, it might be unethical for me to make such an accusation. Further, it is a valid position (one that I wouldn't get decide, even were I a full lawyer) that such mitigation shouldn't change the sentence. Although prosecutors have a duty to justice that goes beyond mere advocacy, we are still advocates.
On the other hand, if the story is true, this woman is in jail instead of finishing her degree and her baby will be born in jail, and I think that it's fairly likely a different defense attorney could have gotten a lighter sentence for her.
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quote:It's also possible (likely, even) that the DA did not inquire too deeply. If he's not aware that testimony is a lie, he can still ask questions to elicit it. If he knew it wasn't true, he couldn't have asked her the questions. There's good reason for the DA not to get into the habit of asking their clients questions that might expose a client's lie.
While everyone, liar or not, has the right to have their attorney as their advocate, it's a shame that this "habit" benefits the liars at the expense of the clients who tell the truth.
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posted
I agree. I couldn't operate that way. It would make me a better advocate for the innocent than the guilty. Of course, most of a defense attorney's clients committed the offense they are charged with, so by the numbers it wouldn't be better.
Enough time with each client would make it possible to tailor the interaction appropriately. The root of the problem is the underfunding of appointed counsel, especially in Virginia.
Knowing the client committed the crime doesn't prevent a defense attorney from putting on a good defense. Defense attorneys are allowed to impeach witnesses who are telling the truth. For example, if you witnessed a crime to which the defendant had confessed in confidence to the defense attorney, your eyesight could be challenged on the stand, even though the defense attorney knows you are telling the truth. A prosecutor may not do this, although he has to know the witness is telling the truth before he would be prevented from impeaching.
However, if the attorney knows the defendant committed the crime, he can't put on alibi witnesses which contradict his certain knowledge. So knowing too much can make defense more difficult. I have a hard time wrapping my mind around defense ethics sometimes - not because they are unethical, but because they are contrary to my nature.
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If the DA would have said, in their initial call for a continuance, "I need to get some possible evidence, School Transcripts, sent to me from Colorado. They will not arrive before the trial. Can you grant me a continuance until they get here--next week?" would you have granted them the continuance?
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quote:If the DA would have said, in their initial call for a continuance, "I need to get some possible evidence, School Transcripts, sent to me from Colorado. They will not arrive before the trial. Can you grant me a continuance until they get here--next week?" would you have granted them the continuance?
I think I would have, probably on condition that she pass a drug test that day. Or agree to support a motion that the judge find guilt and hold it over - almost the same effect, but we get the guilt finding that day.
I'm not sure what my supervisor would have done, but I think he would have agreed to something that would get that evidence before the judge.
At that point, we can be a lot more sure that she's telling the truth.
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quote: The root of the problem is the underfunding of appointed counsel, especially in Virginia.
That is certainly a problem, but I’m not convinced it is the root. I have serious questions about whether the adversarial system is really the best way of arriving at justice for all. In theory, it sounds great – one advocate responsible for presenting each side of the argument in its best possible light, the position with truth on its side should be stronger. But unless the two advocates are exactly matched in skill and resources, this will not necessarily be the case.
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quote:That is certainly a problem, but I’m not convinced it is the root. I have serious questions about whether the adversarial system is really the best way of arriving at justice for all. In theory, it sounds great – one advocate responsible for presenting each side of the argument in its best possible light, the position with truth on its side should be stronger. But unless the two advocates are exactly matched in skill and resources, this will not necessarily be the case.
You may be right, but I'm not sure what a better workable alternative would look like.
In the short term, I meant root of this particular problem, because I think the defense attorney is generally doing the best he can within this system. If we have an adversarial system, we must do better providing advocates for indigent defendants.
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posted
This is probably tangential, and I'm not even pretending to believe it could be initiated in the USA at this point, but what would be the drawbacks (in terms of Justice) with a system where all trial advocates are court appointed? (Assuming adequate funding.) People could hire whoever they wanted for legal advice, contracts, etc, but when charged with a crime, they get a public defender.
Note: I know why people wouldn't want this as long as they could afford "better" counsel, so I'm not asking if it's feasible in our society. I'm more interested in ethical or moral failings of such a system. It seems like such a system would eliminate a Johnny Cochran situation (so to speak).
Edit, I'm trying to imagine a system that would acheive dkw's "exactly matched in skills and resources" ideal. I'm sure it's not actually possible to ensure an exact match, but this idea seems like it would level the playing field greatly.
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posted
I think it's hard to morally justify forcing someone to use a particular advocate when their life, liberty, or property is directly on the line.
The possible benefit is that the average citizen might see the importance of properly funding appointed counsel. But I think most people would still see it as something they'll never need - something needed only by criminals and thus not worth truly funding.
So the only thing it would accomplish is guarantee everyone has ill-funded counsel.
quote:Edit, I'm trying to imagine a system that would acheive dkw's "exactly matched in skills and resources" ideal. I'm sure it's not actually possible to ensure an exact match, but this idea seems like it would level the playing field greatly.
It's the mismatch between prosecutorial and defense resources that really causes the problem, not the mismatch of one defendant to another.
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posted
Another piece of data I'd love to have seen was a pregnancy test...
However, if she was actually lying about everything, and the proscecutor already suspected it, then going in with a lack of evidence might have been the best thing to do.
quote:Another piece of data I'd love to have seen was a pregnancy test...
That, too.
Cynicism is understandable in these situations. Judges, prosecutors, and defense attorneys hear the most ridiculous lies every single day.
That said, while it is understandable, I don't necessarily think it's excusable. At least, it should be something recognized and efforts made to overcome it.
quote:However, if she was actually lying about everything, and the proscecutor already suspected it, then going in with a lack of evidence might have been the best thing to do.
If nothing else, she got me not to make a recommendation. And we expected 12-18 from this judge, so I think it worked a little for her.
posted
I did probation violations again yesterday.
To be fair to the defense attorney, he is by far the best I've seen at it - including some much more expensive private counsel.
It's not so much any technical skill as an understanding of the types of situations that can lead to probation violations - situations which the judge has not understanding of whatsoever. And he's good at getting this understanding before the judge.
This public defender obviously cares very much for his clients and is terribly constrained by the system. Even though I didn't post his name, I wanted to put the good stuff out with the bad.
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quote:Originally posted by Dagonee: It's the mismatch between prosecutorial and defense resources that really causes the problem, not the mismatch of one defendant to another.
Why is this not a problem? If one man is acquitted, and another jailed, on the same strength of evidence, isn't that a problem for a justice system?
Also, you seem rather dismissive of the inquisitorial system. What do you see as its flaws?
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quote:Why is this not a problem? If one man is acquitted, and another jailed, on the same strength of evidence, isn't that a problem for a justice system?
Maybe. I'm skeptical that something called "the same strength of evidence" really exists.
But regardless of whether that's the case, if all defendants had resources to match the prosecutor (not the same manpower - prosecutors do need more, but rather the same percentage of the ideal amount) then the defendants would also be equalized with each other.
In other words, fixing the problem I identified would also fix the problem you identified. But fixing the problem you identified would not necessarily fix the problem I identified.
(By fixing the problem, I mean disparate results from disparate results. There will always be other sources of disparate results.)
quote:Also, you seem rather dismissive of the inquisitorial system. What do you see as its flaws?
It's not so much dismisive as pragmatic. I am a part of the adversarial system, in no position to change that. I need to look for solutions to improve this system that I have a chance to achieve and figure out how to ethically act within the system that actually exists.
In addition, there are benefits to an adversarial system that I have actually seen in action. I'm not saying it's better than an inquisitorial system, but it is a viable system of justice.
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