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Archive for the month “August, 2013”

The Good, the Bad and I guess that makes me the Ugly .. . .

I haven’t blogged for a while. I have been busy with work, life etc. Actually, I had been meaning or rather wanting to blog about one of the most disappointing moments in my legal career. It was a moment in which I was confronted with something that I knew existed but had not had to deal with directly on any of my cases. I thought long and hard about posting the incident, but ultimately decided that I should couple the negative story with something positive, hence the name of this thread the good, the bad and the ugly.

As some of you know I am a former prosecutor and I generally hold law enforcement and prosecutors in reasonably high regard. Do I believe officers and prosecutors make mistakes? Yes they are people! Do I think reports can be written and evidence can be reviewed with a presumed conclusion of guilt? It happens. But I think most people in those jobs are trying to do the right thing and enter the profession for the right reason.

However, there is one flaw that I think is pervasive in the system. I call it ” pass-the-buck-itis”. This is a highly pervasive disease that you see in the criminal justice and criminal court systems. I am sure as a young prosecutor I probably suffered from it on an occasion or two, but I know when I had the opportunity and authority I never hesitated to do what I thought was right. But officers often submit cases to the prosecutor so that the prosecutor can make the the decision to not issue versus writing a report that concludes that no charges should be filed. Prosecutors will often put decisions in the hand of the court when they have the authority to act. Preliminary hearing judges will state on the record that a charge should be reduced yet not exercise their authority to reduce the charge. All of these individual have the power and authority and some would say an obligation to make the decision that is in front of them.

Although this “itis” is pervasive there are people that have conviction and fortitude and do what they believe is right. Recently I had a case that deserved to be dismissed. I thought that it was going to be a long and hard battle to get to that result. Contrary to my prediction, early in the case the file was handed to a prosecutor who has no problem making decisions and they were prepared to and in fact did dismiss the charges. Now this prosecutor is actually a hard nosed, aggressive prosecutor, but he is ethical and decisive. The kind of prosecutor you do not want on your case because he will leave no rock unturned, he knows the law well and he is aggressive. But he does what he thinks is right, and he has the fortitude to stand by his decisions. It was a breath of fresh air.

Now the bad . . . . . .
I perivously had a case where a search warrant was lawfully executed. My client was arrested and charged with a felony. Now my client was allegedly engaged in a criminal enterprise, but had no prior criminal record. It took several months to resolve the case and during this time i got to know my client pretty well. I pierced his many defensive layers and got to know him. His fears, his frustrations even his aspirations. During these several months my client actually began to turn his life around. By the end of the case he was beginning to start progressing towards a new career.

As we were beginning to close the case out we were going over all of the evidence logs and the receipt and inventory. He had asked about the siezed monies before and I explained that if law enforcement wanted to forfiet the funds he would be mailed a notice and we would have to contest the forfeiture. The forfieture letter never came. As we reexamined every piece of evidence we noticed that the amount of money that was listed was different then what my client indicated was taken. Normally I would have concluded that might client was mistaken, lying or exaggerating, however after spending so much time with my client I knew he wasn’t lying. I remember looking into his eyes and seeing the disbelief in his face after he realized that the reports were not consistent with what he knew was seized.

I then explained to him that we can file a complaint and allege that money was missing and not accounted for in the reports. He next asked what would happen if he in fact filed the complaint. I told him the complaint would go in the person’s file and there maybe an investigation, but it will probably not lead to him getting any of the money back. He sat there for a moment apparently contemplating the situation. Then he surprised me with what he said next. “Well I have moved on with my life, that money was part of my old life they can keep it I am a new man now. I am not going to waist my time or your time filing a complaint. They know what they did” I was astounded. I was proud of the growth of my client, yet heart broken by the system I dedicated many years of my life too. I was angry and wanted to fight, but knew the fight would be symbolic only because it is not likely that anything would be done with out additional evidence corroborating my clients statements.

As far as the ugly . . . Well the truth that my client’s word and the truth would likely be meaningless is an ugly part of the system.

Now I still know or believe that this is unusual and most officers are hard working, honest and they are doing the best that they can and are assets and an important and critical part of our society.

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