Criminal Law Blog
October 29, 2005
The State’s Advantage.
When I moved from handling white collar criminal cases in civil practice to prosecuting criminal cases, I gained two big advantages.
First, money was no longer an issue. When I had been in private practice, I had to pay attention to using my time as efficiently as possible so that my client’s money was not wasted on anything. Also, I don’t think I’m going too far to say that the management committee preferred it if my work made some small profit for the firm’s partners.
As a prosecutor, I could put as much time as I wanted into any given case. “Efficiency” wasn’t the main yard stick for measuring my performance.
Instead, the yard sticks for measuring performance as a prosecutor included fairness, effectiveness (winning) as a trial lawyer, and courtesy shown to defense lawyers and the public.
Second, prosecutors get to choose which cases they will try. Defense lawyers don’t. To sum it up: prosecutors get to make offers you can’t refuse and offers you can’t accept.
Here is what I mean. Prosecutors can make sure that the “dog” cases (cases that the prosecutors know they can’t win at trial) will go away by making deals so good that the defendant would be crazy to turn it down.
Prosecutors can also make sure that the cases that they are very confident that they can win (e.g. cases in which the defendant confesses) will actually go to trial. How? Prosecutors can make their offers so high that no defendant would really want to accept it. An example of this would be a 50 year offer. Since a term of “life” is, for all practical purposes, a sentence for 60 years, many defendants would prefer a trial to just giving up and accepting a 50 year sentence.
As a solo defense practitioner, I cannot focus all my attention on my cases. There are always some administrative matters to take care of. Also, I never decide whether a case I’m handling will go to trial. That decision belongs to my client.
So if you have wondered why some prosecutors have 100% win rates, now you know why. Prosecutors get to pick which cases they will try, and they get to invest as much time as possible into preparing those cases by pleading out their other cases.
But the truth is: prosecutors who win every case may well be avoiding trying the really hard cases that ought to be tried. That isn’t really doing justice.
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