Oct 12, 2018 Discretion of prosecutors – Fairfax criminal lawyer’s viewpoint
Discretion of prosecutors- Fairfax criminal lawyer weighs in
Discretion of prosecutors in settlement negotiations, providing discovery beyond what is required by the governing rules, and trial stipulations can change from Virginia county to county, case to case, prosecutor to prosecutor, and moment to moment.
Virginia criminal attorney on knowing the usual prosecutorial practices before working to alter them
Recently, a prosecutor I bumped into (I will not name the county) told me that he wished he had more discretion his work and pondered whether that discretion will increase as he puts more years into his work at this Commonwealth’s Attorney’s office.
Fairfax criminal attorney on helping a commonwealth’s attorney overcome real and perceived limits to their prosecutorial discretion
When a prosecutor tells me that s/he cannot take a particular negotiating action, I sometimes ask whether that statement is spurred by one of their supervisor’s directives, input from the complaining witness or their supporters, or the prosecutor’s own discretion. When I know what is motivating the prosecutor during a negotiation impasse, I can better handle any negotiating impasse.
One former prosecutor told me that when his colleagues learned which one of them had a trial set with me that day, the response of some of the remaining prosecutors was to ask how that prosecutor had drawn the short straw, knowing that I give prosecutors an effective run for their time and money, always fully ready for trial. I asked this former prosecutor if my reputation for giving a full fight at trial helped my clients at all, and he replied: “It did with me. I was lazy.”
Virginia lawyer on a prosecutor’s time motivations
One former prosecutor told me that prosecuting was the easiest job he ever had. If prosecutors want to get to the golf course or tennis court while it is still daylight, all they have to do is to start agreeing to favorable settlements with defendants. Not all prosecutors are like that, so know your prosecutor.
Fairfx criminal lawyer’s tips on expanding prosecutorial discretion
What, then, can a criminal defense lawyer do to expand a prosecutor’s discretion to the defendant’s favor? The answer includes:
- Always be trial-ready. Making the trial always the default means that a favorable settlement is a pleasant outcome but not a necessity.
- Be ready to add a supervising prosecutor to the negotiations. In Prince William County, Virginia, for instance, a wet reckless is typically not offered in a DWI case absent the approval of a particular supervising prosecutor. In other instances, I am ready where appropriate to ask the prosecutor if s/he minds whether I check for input on the negotiating matter with a supervising attorney, whether with or without the prosecutor’s presence; when this approach is diplomatically raised, the prosecutor is not likely to complain.
- Do not accept as a truism that today’s usual practice of a prosecutor’s office will not change. For instance, recently I obtained for a client charged with DUI and breath testing refusal a great deal for wet reckless with no active jail time. Once we were done in the courtroom, a surprised county public defender lawyer walked right up to my client and told him that the public defender had never before seen a defendant in that county obtain a wet reckless with no active jail time. Reality is no obstacle with strong criminal defense.
- Be ready to back up the prosecutor to his or her superiors if s/he gets heat for deviating from how the prosecutor’s office usually negotiates .
Fairfax criminal lawyer Jonathan L. Katz fully prepares each case for trial, thereby negotiating each case from a position of strength. To discuss your case with Jon Katz, please call his staff at 703-383-1100 to schedule a confidential consultation.