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Some cases just need to be tried

Mar 30, 2009 Some cases just need to be tried

In what way is our payment of taxes for the salaries of uncaring and unjust prosecutors any different from Kevin Bacon’s imploring "Please sir, may I have another [whack on the butt]" in Animal House?

Too often, prosecutors refuse to hear from my witnesses to help them assess whether to prosecute a case, or whether to move closer to narrowing the settlement negotiations gap. Some prosecutors relent when I remind them that their obligation is to seek the truth and justice, rather than seeking a conviction and stiff sentence. Some do not.

Today, a prosecutor cut me off in my ten-word sentence to offer community service to inactivate a theft case, in response to his guilty plea offer. He insisted this would be a trial or a guilty plea. I suggested to him that he hear my counteroffer for his client to consider it. He responded that doing so would be unnecessary because of who his client is (does he really understand his client, and fully comprehend who his client is?) I asked him if he wanted to be known as a prosecutor who does not listen to counteroffers in settlement negotiations, but he replied that I should remove myself from the prosecutor’s table.

Some prosecutors speak loudly enough in such situations for the defendant to hear, despite the rule of professional conduct prohibiting lawyers from communicating about the case with opposing parties represented by lawyers, unless the lawyer consents otherwise. I at least give the prosecutor credit for not speaking loudly enough for my client to hear.

Sometimes criminal defendants get intimidated by prosecutors’ plea offers, which criminal defense lawyers are bound by the lawyers’ ethics rules to convey to their clients. This underlines how important it is to build a relationship of trust, confidence, and complete preparation between the lawyer and client well in advance and throughout the defense.

We went to trial in this case. We won. As many of my colleagues have responded to me when I have complained about prosecutors’ negotiating actions: "Some cases just need to be tried."

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