Policy Shmolicy: Dealing With Junior Prosecutors

Occasionally you have a judge who tells it like it is.

I am standing at the bar of the court. My client has successfully completed a diversion program. The clerk calls our case 15 minutes early, before my client has arrived in the courtroom, so I offer to waive my client’s presence. We need two simple words from the government – “case dismissed” – so that we can all get on with our business.

The judge is a kindly older man with white hair and a beard and a very good sense of humor. He is respectful towards everyone in the courtroom, including the accused. And he is friendly now to the two prosecutors standing in front of him at the other table. I know this is not my decision, he says. But do we really need to have the defendant standing here for the four seconds it will take to dismiss these charges?

Although this is exactly what everyone else in the courtroom has been thinking, it is gratifying to hear the judge himself actually say the words. Those of us who do this every day can get so wrapped up in ourselves that we can sometimes forget how ridiculous things must seem to people on the outside.

There are two Assistant U.S. Attorneys standing at the other table. They are both junior. This is part of the problem. Because the prosecutors rotate so quickly out of misdemeanors, you never deal with the same prosecutor on any case that takes over 6 months to resolve. If the odds of getting one prosecutor to return your emails or phone calls on a minor misdemeanor are slim to begin with, they are virtually non-existent when it comes to communicating with two different prosecutors. And that is assuming you can even figure out who the second prosecutor is. There used to be a number you could call. That number now goes directly to voice mail.

The other part of the problem is that junior prosecutors are too insecure to deviate from office policy even when that would be the common sense thing to do. They are afraid of getting themselves into trouble.

Both prosecutors look down at the file in front of them as if they are going to find the answer there. We need to have the defendant here, one of them says finally, before we can dismiss the charges.

The judge shrugs his shoulders and smiles. Well then, he says to me, I guess we will just have to pass the case.