Wednesday, May 05, 2004

Defending DAs?????

I never imagined that, in writing a blog on being a public defender, I would feel the need to defend DAs. But, believe it or not, here goes.

Since just about every DA is an elected position (federal is different, but they're appointed by the president, so same thing), they are inherently political. Furthermore, as the DA's office is (at least in California), the road to the judiciary (if you want to be appointed by the governor), you have to make sure you don't show yourself to be a wimp if you want to be a judge some day. Politically speaking, no one I can think of has ever been turned out of office, except perhaps in San Francisco, for being too tough on crime. Especially for a law enforcement job. This does not mean that people with strong law enforcement credentials can't run campaigns which have elements of realism in them - such as not being too tough on 3 strikes, or pushing rehabilitation. But, for the most part, being "tough" pays.

For a DA's office, this means that the top person's main concern is losing his next election by being outflanked in the toughness department by his next opponant. If certain deputies are offering too low a sentence on a case, or don't win enough cases, or don't file cases with every possible crime and enhancement pled, then that is fodder for a future political campaign. If someone gets out of jail after receiving a light sentence and kills someone else, or gets out of jail after a prosecutor agrees to them being released OR, then this will be brought up by the DA's next election opponent. Just about everything can be spun to look bad, as George Bush has shown, trying to discuss nuanced subjects doesn't work in a 30 second political commercial, so DA's make policies that are not easily subjected to 30 second ridicule.

This pervades the whole office, and sets up a general tenor of the office.

However, this does not mean that every DA is evil. Just because they work for an office that frequently cannot recognize humanity, many individuals have a great sense of humanity, or even if they are tough, they are very fair. They can be very trustworthy, honorable, fair, and not vindictive. A large amount of the individual DAs are like this. Some are not afraid of political payback for doing what they feel is right, even if it bucks the office, some want their actions to be kept quiet, some make backroom deals that allow them to look good on the record (this means that they have to make the judges be the bad guys and do things that they want to happen but don't have the guts to do).

Examples: A DA thinks that a defendant should not get 25 to life for possession of a gun, but his office says that the person should get that sentence. The DA tells me that we could go to a court where the Judge would probably not give that sentence, and tells me that I'm free to approach the judge and tell him this, asking if he'll give a non-life sentence to the defendant. The judge says he'll cooperate, and so the DA and I quiety manipulate to get the case to that judge, and the DA tells the judge that this is what he wants to happen. The judge, however, is forced to do this on the record, so that if, 10 years from now (when the Defendant gets out), he kills someone with a gun, the judge will be the one to take the hit on it in the papers. Ultimately, while I wish the DA would have had more guts to do what was right out in the open, I also recognize that had he done so, he may not be around long enough to do so again.

Another one: A DA gets a case assigned to her from the "Calendar" DA (meaning, the DA who is in charge of all cases out of that court). The calendar DA is a rabid, out of control frothing at the mouth type. The DA who gets the case is the opposite, reasonable, easy to get along with, and very fair. She purposefully has me put the case over to a date that she knows he won't be there, and approaches another DA about getting an offer on the case, and gives the Defendant a very good and fair offer that he never would've received if the calendar DA had handled the case. In fact, a friend of mine had a very similar case with the rabid DA, and his client got a 10 year longer sentence than my client did.

Last one: I had a case which was a profile case of a mother abusing her child. Case got onto TV because the cops publicized it for some absurd reason. Of course, the case was never as bad as the cops said it was, and far more nuanced than they suggested. She wasn't innocent, but she wasn't as evil as they considered. The DA told me that he thought the case was worth up to a year. He tried to get this done quickly and quiety so that wouldn't hear about it and go ballistic, but through some wierd thing, they actually heard about, went ballistic, and tried to scuttle the deal. They went almost all the way to the top of the DA's office, threatening that they had gone to the police before, and they would go again. They wanted life (she only faced 6 years max, so they were wacked anyway), and they were going to do everything they could to make that happen. The DA, however, stuck his ground. The case was worth 1 year, he had handled many of them, and the fact that they were going to the press to turn it into a federal case wasn't going to make him back down on what he thought was right. Suffice it to say, he will never be a top person in the DA's office, and perhaps never a judge, but he's a really honest person, and would be the best thing the judiciary could get.

In other words, there are quite a few very fair DAs out there, people I like and respect, who may put people away for a living (something I never could do without complete discretion to handle each case however I wanted, including dismissing all victimless crimes like drugs and prostitution), but who realize the meaning of fairness. They aren't out for blood, they aren't there to make a name for themselves, they don't get joy out of putting people in jail. They are just decent people doing a job the best way they can. Unfortunately, they have to fight to do this, and they risk their careers to do this. This is why they are the exception rather than the rule.

I often think that I would love to have people like this come over to our side, work in our office. I think: "these are cool people, good lawyers, have experience with the DA's office (so they could give us all their tricks and tell us all the things DA's have up their sleaves, as if we didn't already know), and would be a coup if we could steal them away." However, upon further reflection, I think it's best that they stay in the DA's office and remain a nice counterbalance to the nuts that frequently pervade that office.

There are quite a few good ones, though. And they should not go unappreciated or unremarked upon.

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