One of the benefits that my clients have is that I have a reference point when it comes to dealing with prosecutors. I was an Assistant District Attorney for 5 years, which included stints as a Chief in County Court and several years in the District Courts where I ultimately handled the most serious felonies. I can’t, however, say that I was very good at it.
It’s not that I wasn’t good at convicting people. I did that very well. In fact, in 40 felony trials I only suffered one acquittal. From the standpoint of my supervisors, I was an unqualified success. In one week I obtained three life sentences. My bosses couldn’t have been any more impressed.
However, I suffered from lack of experience. Not in the law, mind you. But in life. I hadn’t lived enough. I was 24 years old when I was first placed into County Court Number 2. I was immediately asked to make decisions about the lives of individuals twice my age, and sometimes with far greater credentials. They had raised families, been through job disasters and lost loves. They had dealt with immeasurably more difficulties and human contact than I had experienced. This was true not only for the defendants, but also the criminal defense attorneys I dealt with. I shudder to think of some of the things i told these fully formed men and women who had to come to me for plea negotiations.
I bring this up not to be nostalgic. I’m writing about this because I deal with these prosecutors, and have to explain to clients why a particular prosecutor doesn’t understand the common logic my client sees so clearly. Sometimes its not the facts – or even the law – that is at fault. Sometimes it is because the recipient simply doesn’t have a reference point to understand what is being told to him.
I have two cases that are remarkably similar. Both clients are charged with Harassing Communications, and both clients have very good reasons for calling their ex-spouse repeatedly on the phone. (You might have guessed that they both share children with their ex’s.) It is clear to me that these cases need to be dismissed, since they involve activities that aren’t criminal court business, but family court issues. However, it is hard to explain this to a prosecutor who is single and 25 years old. It is doubly hard to explain this when the prosecution has no experience with a recalcitrant father in divorce court.
And so the prosecution stretches the case out, and is consistently inundated with one sided information coming from an individual who is getting free legal service. Ultimately, the case is set for trial and only then does the Assistant D.A. realize that she has read the case wrong. It is then that the prosecutor discovers that the juror’s experiences are very, very different than hers. And it is then that justice is painfully served.
I wish it could be easier, but lest I complain too much, I should remember that I was once part of the problem. I’m making up for it now.