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When a jailer suffers the justice system’s injustices / How prepared should a prosecutor be?

Apr 23, 2008 When a jailer suffers the justice system’s injustices / How prepared should a prosecutor be?

Bill of Rights (From public domain.)

When I started practicing criminal defense, I spoke with a very experienced criminal defense lawyer who told me that he had never prosecuted, but expected he would love it if he had such a job; this was a variation on a theme of some former prosecutors who recommended that I precede my criminal defense career by prosecuting, which I refused to do. I take it that only finances got in his way of such work. A former prosecutor, asked what such work was like, said it was one of the easiest jobs he ever had.

A private practice lawyer who includes criminal defense work four business days weekly prosecutes misdemeanors once a week for a nearby city; he recently described the work mainly as preparing the cases on the court day, letting the cops issue witness subpoenas, and asking "what happened next?" at trials as a substitute for doing pretrial date case preparation. He seems to enjoy his prosecuting work very much.

At first blush, a criminal defense lawyer might want a prosecutor who sees his or her job as easy; if the case will go to trial, the less prepared the prosecutor is for trial, the better it might be for the defendant (unless the prosecutor waits until the trial date to successfully seek a trial date continuance to cover for the unpreparedness). However, I want prosecutors to put in sweat equity to screen cases in advance to determine which cases and counts should be dismissed or reduced, or offered pretrial diversion or an inactivation disposition.

I want prosecutors to carefully scrutinize their cases and witnesses to discard the dishonest witnesses and false evidence, and to insist that witnesses stick to the rules of the court, including answering the question asked and only the question asked, rather than trying to do an end-run around the rules of evidence and procedure. I want prosecutors to put in the time necessary to satisfy the letter and spirit of the discovery disclosure rules and the Brady/exculpatory evidence rule, and to return my phone calls seeking case information and seeking to reach evidentiary stipulations for trial, consents to motions to resolve trial calendaring conflicts, and other relief for my clients. I want prosecutors to understand their cases well enough so that I may engage in meaningful settlement negotiations when the stakes are extremely high for my client to go to trial, including when a client is likely to get convicted for a deportable property destruction or unlawful entry case where we might avoid that if the prosecutor will let my client only plead guilty to trespass.

Walk into any misdemeanor District Court in highly populated counties around the Washington, D.C., Beltway and beyond, and you often will see packed courtrooms with prosecutors handling dozens of cases for the day in comparison to a private defense lawyer’s one or two cases. Something has to give for the prosecutor and judges to get through the day’s docket, and one of those things might be an insufficient review of a particular case, unless the prosecutor has done the case review before the court date.  On the other hand, the more packed the courtroom, the more favorable a negotiation the prosecutor might offer the defendant, depending of course on the "office policy" of the particular prosecutor’s office and the individual prosecutor’s own approach within "office policy" and to deviate from time-to-time from office policy.

Of course, no matter how much time prosecutors put into cases — and plenty of prosecutors work substantial hours, despite the some or many who do not — many will still move forward with cases that should have been dismissed. In Fairfax County, Virginia, Rose Merchant should never have been arrested and prosecuted for falsely impersonating a law enforcement officer, but she was. She should not have had to go through the financial loss and emotional angst of hiring a lawyer, awaiting trial,  and being let go from her job when still presumed innocent pretrial, but all that happened. The prosecutor should not have gone forward to trial rather than dismissing Ms. Merchant’s case by the trial date, but he did. The judge should have put the brakes to all this nonsense, AND HE DID!

Last Thursday, Fairfax, Virginia, District Court Judge Ian M. O’Flaherty declared after hearing evidence from the prosecutor, and before the prosecution rested: "Ma’am, there’s no case here.. This case is dismissed." Ms. Merchant’s disposition sheet is here.

Rose Merchant, the acquitted defendant, was a Prince George’s County, Maryland, corrections official before her Fairfax County arrest last February. What did her employer do as a result? Prince George’s County fired her at once. What did Ms. Merchant do to deserve being fired for her arrest? Nothing. All she did, according to the Washington Post, was to inform police investigating a report of a car that allegedly ran another car off the road that she worked in corrections, in the context of asking to be spoken to with more courtesy than the police were giving her. How often do police talk disrespectfully even to those not disrespecting the police? All too often.

Fortunately, Ms. Merchant’s encounter with the cops was caught on video and audiotape, to counter any exaggerations by the police about what she may have done to violate any laws, which she did not. By the way, many police often tell inaccuracies from the witness stand not intending to lie, but not intending to reveal, either, any problems of recall or of digesting the events in the first place. Once a cop writes something in his or her report, it is a monumental challenge for the cop to deviate from the report, even when the cop is unsure after all about the report’s accuracy; it is the dark side of human nature at work.

Ms. Merchant’s lawyer says she wants her job back with Prince George’s County. Prince George’s County is where I started my criminal defense career; I anticipate that she will be re-hired after her acquittal. If Ms. Merchant is re-hired, hopefully this injustice done to her in Fairfax will benefit Prince George’s inmates to have a jail official who understands police and prosecutorial abuse firsthand. When an inmate is unfairly charged with a jail infraction or makes a plasuible claim of mistreatment in the jail, hopefully she will listen, and step in for the better. Jon Katz.

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