The Prosecutor Doesn’t Care About You

There is good news and there is bad news for anyone who has ever been charged with a minor criminal offense.

The good news is that the government has a ton of these cases that it needs to prosecute. This means that it will probably offer most first-time offenders some type of diversion program in which they can do community service in exchange for getting the charges against them dismissed. It also means that, if the case ends up going to trial, it is very likely that the first time the prosecutor will look at the paperwork, interview the government’s witnesses and actually focus on the file will be on the morning of trial. In other words, the government may have the advantage when it comes to the resources it can throw at a case. But the defense will have the advantage when it comes to actually preparing for the trial. It is the defense who will take the time to know the facts and to be creative.

The prosecutor’s inability to focus on a case until the morning of trial is also the bad news for someone charged with a misdemeanor. Defendants who are not familiar with the criminal justice system tend to have this notion of a prosecutor not only focusing on their case, but also focusing on them as people. “Hmmm,” they imagine the prosecutor thinking as she reviews the file. “This is really a good person. It is hard to believe that he would do something like that. I think I am going to dismiss this case.”

I had a case recently in which my juvenile client was also the government’s witness in a sexual assault case. This resulted in me working directly with the prosecutor as we both sought to look out for the best interests of this little girl. It was a strange experience to be working with someone with whom I had a history of some pretty contentious litigation. It was strange to be on the same side. It was also strange for me to see this different side of the prosecutor’s personality – the caring, supportive, motherly side.

I assume prosecutors go through the same mental gymnastics that defense lawyers do to reassure themselves of the righteousness of their cause.  And the difference, of course, in this case was that my client was the victim, not the criminal.  In fact, most prosecutor don’t seem to see many of our clients as sympathetic individuals who have needs that should be accommodated. Or is this too simplistic?

Over at Mimesis Law, Andrew Fleishman mentions the particularly unrealistic expectations of DUI clients when it comes to what the prosecutor will offer. I couldn’t agree more.  Many people charged with this offense seem to genuinely believe that the prosecutor will dismiss the charges against them just as soon as she reviews the file, sees that the transgression wasn’t all that bad and concludes that, besides, the suspension of the person’s driving privileges would be a tremendous and unwarranted inconvenience for the defendant given, say, his responsibility for driving his children to and from school.

These people have never stood in front of a prosecutor as this type of argument was made: “Well, they shouldn’t have been driving drunk then.”   And they do not understand when you are not successful in making it.