Law Review and DA/PDs Offices

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CanadianWolf
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Re: Law Review and DA/PDs Offices

Postby CanadianWolf » Wed Apr 29, 2015 11:33 am

Ughh. Let it go already.

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Tanicius
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Re: Law Review and DA/PDs Offices

Postby Tanicius » Wed Apr 29, 2015 11:41 am

CanadianWolf wrote:You can negotiate until the cows come home. You, as defense counsel, can negotiate your heart out. But, the prosecutor still holds all the power as to whether or not a plea deal will even be offered and, if so, the terms of any proffered deal. Nothing that defense counsel can do if the prosecutor refuses to "negotiate" or to offer any plea deal whatsoever.

The best that defense counsel can do within his or her control is to prepare for trial & always demand a jury trial.


What I am saying -- and it doesn't seem you disagree -- is that negotiation is one of the top three most important skills to have as a public defender, and it's easily in the top 2 things I spend most of my time doing (as opposed to researching law or writing motions, which accounts for probably 1% of my time, hence why law review would not be practical). Almost in every case, a negotiation of some sort is successful. When I don't negotiate a case at all, it is most commonly because the client is in custody and is not interested in fighting over minutia and just wants to plead out on the spot without talking about their case at all, so I never even get the chance to take something back to the prosecutor.

So, while prosecutors hold most of the evidentiary and legal cards, that doesn't really change the success rate we have at negotiating cases. It just means we have to get very creative in how to negotiate.

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LA Spring
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Re: Law Review and DA/PDs Offices

Postby LA Spring » Wed Apr 29, 2015 11:46 am

CanadianWolf wrote:I don't. It's just that what one normally calls "negotiations" doesn't really exist in this arena because the prosecutor has all the power.

Defense counsel's only real chip is the power to demand a trial by jury.


From a second year who is rarely staffed on criminal cases, three months ago I would have disagreed with you, but now, not so much. Whether (or not) prosecutors really have the power, what is clear is that they certainly think and act as though they do. Perhaps it’s because they know (in a high stakes case) they can charge a modestly wealthy person and know that their legal expenses will drain them pretty quick. Jury trails are not inexpensive.

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Displeased
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Re: Law Review and DA/PDs Offices

Postby Displeased » Wed Apr 29, 2015 7:24 pm

Tanicius wrote:
CanadianWolf wrote:"negotiating a deal with opposing counsel" isn't the way that I would phrase dealings between prosecutors & defense counsel. Prosecutors typically hold all the cards.


For many cases, sure. But the cards defense attorneys learn to use are:

-snip



This is a perfect post and completely true in my couple years of experience as a PD. CanadianWolf is right in that we don't pound the table and "negotiate" the way you see on TV, but I consider everything Tanicus posted to be "negotiation", and we do that every single day.

Of course, defense counsel's reputation also plays a role in getting deals. Better attorneys get better deals, prosecutors really don't like losing and if they think there's a real chance at losing, they'll make good offers. Even if you aren't objectively "good", If you are known for drowning the court in motions or just generally for being a hassle, some prosecutors will just offer you something to make you go away. But that cuts both ways, sometimes having a reputation like that triggers a prosecutor's bloodlust (as Tanicus indicated). I've had a couple good deals get withdrawn just because I had the temerity to suggest that I had favorable facts/witnesses.

If you are known for never trying cases, then the prosecution has no real reason to make good offers. Sometimes I try deadbeat loser cases, even when the offer was decent, in the hope that getting a reputation for trying cases will result in better offers down the line for future clients.

I will say that sometimes it just comes down to raw luck. Sometimes you get good offers because a witness calls in sick or because the prosecutor scheduled too many trials that day/is hungover. Sometimes the arresting officer gets fired for ethical issues (happens more than you might think, at least in my jurisdiction).

And sometimes you just get creative/desperate. I've sometimes printed out a folder full of irrelevant caselaw and then flipped through it in front of the prosecutor, in the hopes they think I have some crazy motion or legal argument. I've intentionally let my intern handle deadbeat loser cases, because prosecutors are sometimes nicer to interns (plus watching an intern try a case is occasionally physically painful, so they make offers just to avoid the awkwardness).

No, we don't hold the cards. But that doesn't mean we don't have ways to effect offers.

Anonymous User
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Re: Law Review and DA/PDs Offices

Postby Anonymous User » Wed Apr 29, 2015 7:57 pm

I noticed we've veered off topic, but I will offer that it is crazy how different stuff is from jurisdiction to jurisdiction. I'm a prosecutor in a major city, and I guess I have all the cards because I have all the fucking cases. I'm usually juggling 4 to 5x as many cases as my PD. And there is no reasonable deal I will refuse out of sheer exhaustion/lack of time/ jaded.

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gobucks101
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Re: Law Review and DA/PDs Offices

Postby gobucks101 » Wed Apr 29, 2015 8:13 pm

It's amazing how many defense attorneys in my circuit who don't like the minimum offer I'm authorized to offer do a non-negotiated plea after pre-trying the case in chambers or at the bench instead of demanding a jury trial. Don't they know I hold all the cards?

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Displeased
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Re: Law Review and DA/PDs Offices

Postby Displeased » Wed Apr 29, 2015 8:39 pm

Anonymous User wrote:I noticed we've veered off topic, but I will offer that it is crazy how different stuff is from jurisdiction to jurisdiction. I'm a prosecutor in a major city, and I guess I have all the cards because I have all the fucking cases. I'm usually juggling 4 to 5x as many cases as my PD. And there is no reasonable deal I will refuse out of sheer exhaustion/lack of time/ jaded.


The situation in my jurisdiction is reversed. There are twice as many prosecutors as PDs and the PDs must handle minor misdemeanors even when the prosecutor isn't involved. Each PD in my office has roughly 150 open cases at any one time, compared to about 70 for each prosecutor.

We also get paid substantially less to handle twice as many cases, but that's just sour grapes...

One more comment about pleas. Defense attorneys, even baby PDs, have WAY more latitude when negotiating than prosecutors do. Varies from jurisdiction to jurisdiction, but when negotiating a baby PD answers to no one but the client, while an assistant district attorney usually has to get their deal signed off on by the boss.

As for returning to the topic...

PDs don't care about law review. It can't hurt, as long as being on law review didn't stop you from doing PD work while in law school. PDs care whether you've worked as a PD, and if you've interacted with indigent clients. That's it, really. I recommend doing law review, just because it looks weird for other jobs if you don't do a journal and it doesn't really take THAT much time if you aren't an editor.

andythefir
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Re: Law Review and DA/PDs Offices

Postby andythefir » Wed Apr 29, 2015 11:57 pm

At the risk of derailing the threat further, in my jurisdiction the DA and PD departments get the same amount of funding per statute, although individuals get paid differently (PDs presently get paid more, but they're now looking at furloughs due to their poorly managed budget). I also have roughly 2X the caseload of the PDs, with my caseload hovering between 205 and 230.

On the off chance the thread returns to topic, I will say that really getting the law can be really frustrating in the small town state criminal law practice. Someone with great grades at a great school will bang their head against a wall with inexplicable evidentiary rulings (I had a motion hearing on whether the rule allowing self-authenticating documents existed), and doctrinal legal skills are probably less important than interpersonal skills. But I would still bet on someone who was on law review being able to figure out the job more quickly.

Anonymous User
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Re: Law Review and DA/PDs Offices

Postby Anonymous User » Thu Apr 30, 2015 1:16 am

Seems to be a lot of PDs and DAs here. How do you guys like your jobs?




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