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Eliminating prosecutions by preventing prosecutor trial postponements

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Most criminal defendants do not care how they win, just as long as they win.

For most criminal defendants, a case dismissal is as good as an acquittal in most respects. Here are some key differences:

An acquittal prohibits the defendant from being re-prosecuted for the same alleged offense, unless the acquittal was in state court and a new charge is in federal court, or vice versa.

An acquittal can look like a stronger vindication than a dismissal.

An acquittal might speed along the expungement application procedure more quickly.

A dismissal might be without prejudice to enabling the prosecutor to re-charge the offense. Some prosecutors will use dismissals as an end run around an inability to obtain a trial date continuance from a judge.

A dismissal can remove the angst and expense of proceeding to trial.

A dismissal — if not recharged — gets the case over with more quickly on or before the trial date than conducting a trial.

A dismissal without prejudice might create the angst of not knowing whether the case will be recharged, and concerns about being arrested out of state on a re-charged case, and then being jailed for multiple days to be extradited to the prosecuting state. In consultation with the client, the criminal defense lawyer should balance asking the prosecutor and/or police officer to tell the lawyer whether the case has been recharged against checking periodically with the law enforcement open warrant desk (in the event such a desk will willingly provide accurate information, let alone the times when names are misspelled in the database and not found) against trying to leave the entire case out of sight and out of mind of the prosecution and law enforcement.

Criminal defense lawyers must realize that it is not rude, out of order nor underhanded to object to prosecutorial trial continuance requests more often than prosecutors agree to defense continuances. The prosecutor serves but one client, which is the government. The client’s interests come first, and client A’s present interests should not immediately be sacrificed for the criminal defense lawyer to have better relations with the same prosecutor who is handling the prosecution against the same lawyer’s client B. Prosecutors must recognize this reality, and not be vindictive in deciding whether to consent to criminal defendants’ trial date continuance requests.

Convincing a judge to deny a prosecutor’s postponement request is a fine art, and can provide the judge with critical food for thought that the judge had not previously considered. Let us look at two common reasons provided by prosecutors for seeking a postponement: "Witness A is sick. Witness B is not here."

The defense lawyer’s opposition to a postponement as to witness A might include: "Judge, I am waiting to hear whether witness A was subpoenaed for trial, when witness A was subpoenaed, and when and how service of the subpoena was perfected. If the subpoena was delivered late or incorrectly, that delay should fall squarely on the prosecution’s shoulders. If this trial is postponed, it will further clog up this court’s already heavily booked docket. Administrative efficiency and my client’s speedy trial rights will be served by denying the prosecutor’s postponement request. 

"We have all types of sick. I am waiting to hear when witness A became sick, what type of sickness it is, how serious the sickness is, whether there is a doctor’s note, when the witness told the prosecution s/he is sick, and why I was not informed earlier of sickness, when my client and witnesses are here on time, and are here at great opportunity cost in terms of cancelled work, travel time and travel expenses. If police believe their cases will automatically be postponed if they call in sick, that can encourage a culture of calling in sick."

As to Witness B, the defense lawyer’s opposition can include: "The prosecution has the responsibility for getting its witnesses here. I am waiting to hear how, when and from whom the prosecutor learned of this witness hurdle [sometimes busy prosecutors rely on the word of unreliable others], whether witness B was subpoenaed for trial, when witness B was subpoenaed, and when and how service of the subpoena was perfected. If the subpoena was delivered late or incorrectly, that delay should fall squarely on the prosecution’s shoulders. The prosecution’s proper recourse to obtain the presence of a subpoenaed witness with no good excuse for dishonoring the sanctity of the subpoena is not a postponement, but a bench warrant to secure the witness’s presence." Watch how many prosecutors will seek a bench warrant for the presence of a police officer, by the way; do not hold your breath.

In arguing against a postponement, try to include how a postponement denial helps the court, including the administrative efficiency of unclogging heavily booked case dockets so that other litigants may have their day in court, and giving honor to the sanctity of subpoenas by denying a postponement if the prosecutor does not first resort to requesting a bench warrant (called capiases in Virginia) for the subpoenaed party’s arrest to be brought to court. 

I usually avoid blogging about specific prosecution continuance requests that I overcome, unless something uniquely instructive comes from it and unless I am not at greater risk that the blog entry will lead the prosecutor go re-charging the case. For instance, earlier this year, I pointed out how I summoned the memory of Bill Clinton and Paula Jones to overcome a prosecutorial continuance request based on the arresting officer’s paternity leave.

Trial victories are an adrenaline rush. However, a high percentage of my clients probably did in fact commit one or more crimes that they have been charged with, so an outright case dismissal often is a smashing victory in itself for any of my clients, particularly when compared to the high risk so many of them face of being convicted at trial.