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Front-Lines View of Police and Prosecutor Conduct

Updated: Apr 14

By Clayton T. Robertson, Attorney at Law (Criminal Defense Attorney)


For those interested in a "front lines" perspective on criminal-justice reform, the following are a few of my thoughts about expanding the scope of the inquiry after serving as both a Deputy District Attorney and a Deputy Public Defender:


Whistleblower Threat


I've long said that District Attorneys' offices are much better at using the media than Public Defender offices. And when Public Defenders attempt to use the media (including social media) in the same way -- or anywhere close -- they get punished for voicing legitimate First-Amendment concerns about how the system works, including how it works against the accused during the pre-trial and trial processes (when the presumption of innocence should apply).


Per the article linked below, the Santa Clara District Attorney (DA) threatened a Santa Clara Deputy Alternate Public Defender with a whistleblower complaint after the latter expressed outrage about how DA offices are often part of the criminal justice problem and how those offices need to be scrutinized as part of any meaningful criminal justice reform. (The DA's pretext for threatening to file a complaint was that the defense attorney's post(s) allegedly incited violence against the DA's office, but that interpretation appears to lack merit.)


Power of Prosecutors


In the article, the Deputy Alternate Public Defender acknowledges that one fear from the uproar created by his posts is that "prosecutors could potentially retaliate against his clients with harsher charges or less favorable plea bargains." A critical issue that any lawyer who has ever walked into a criminal courthouse knows is the power of DAs in the negotiation process because DAs alone (with some exceptions) have the power to reduce charges, otherwise your client needs to "plead to the sheet" to the judge. DAs also start the process by filing criminal complaints (often without proper investigation, which DAs can avoid by rejecting a case "for further investigation"). Prosecutors also make the offers in cases, and judges are often reluctant to undercut the DA's offer. (Judges in some jurisdictions or in specialty courts are more willing to get involved, but are limited by law in what they can do – which is also my point.) In combination, these factors (and others) give DAs an inordinate amount of leverage in the courtroom. And these factors also produce the types of congestion -- not to mention inequities -- plaguing courthouses throughout the country. (Again – all of this in spite of the presumption of innocence enshrined in our constitution.)


Moreover, the number of cases in which the offenses are overcharged because the prosecutor believes every word in a police report makes the relationship between prosecutors and law enforcement far too cozy. Not to mention that DAs also consider themselves "law enforcement" and prize their badges and routinely add and defend certain charges (such as "resisting arrest") to provide cover for law enforcement so officers don't get sued or aren't held liable in civil cases for using excessive force. The list goes on and on. It would truly dismay you if I went into detail on the number of cases in which a potential just resolution was stymied over a prosecutor's refusal to dismiss a concocted "resisting arrest" charge because the prosecutor (and the DAs office) didn't want to burn a bridge with that officer or with the officer's department.


Worse, as suggested in the article, there is often an implied threat -- sometimes made very explicit -- that you will get punished in other cases if the DA subjectively "feels" you are being unreasonable or too aggressive in a particular case. Yet how many stories have we seen about those who have been falsely convicted from Brady violations (when evidence is not produced by the prosecutor) or due to other forms of prosecutorial misconduct? I remember one instance when, after a contested motion in what should have been a run-of-the-mill misdemeanor case, a young Deputy District Attorney (DDA) declared to me in open court, “I’ll remember this!” I let it go because it was an immature outburst by a "baby DDA." But these forms of retribution happen across-the-board at all levels.


Defense Perspective


I've served as both a DDA and Deputy Public Defender (and, later, as an “Alternate” Public Defender handling cases that the Public Defender’s Office cannot accept due to a conflict of interest). I've seen all sides of this process in painful detail. I’ve been on ride-alongs with law enforcement when I was a DDA in which I saw a few “tricks of the trade” that allow officers to make a "pretext stop" without ostensibly running afoul of the Fourth Amendment. I've also trained law enforcement in seminars to be professional trial witnesses. So, I've enjoyed the power of being a DDA, and later I have experienced the humility of serving as a Deputy Public Defender who needs to be mindful of avoiding burning a bridge with a DDA when I have 25 other cases that morning with the same DDA, and another 100 that week (not to mention another several hundred in the next few months), again with the same DDA in the same courtroom (with the same judge).


The disproportionate power of DAs has been widely studied, discussed, and critiqued in law review articles, in the mainstream media, by various criminal-justice reform organizations, and elsewhere. Thus, to include DAs in the discussion of criminal justice reform is appropriate and long overdue. There are numerous possible legislative solutions to the problem, including in some recent proposals to modify the California Penal Code to give judges more power over plea negotiations and dispositions, which probably will fail, but the power of DAs to maintain these power disparities -- in spite of constitutional guarantees to the accused -- remain perniciously etched in stone. Also, the unwillingness of some DDAs to agree to forms of "diversion" (mental health and others) that result in better "restorative outcomes" is yet another issue, or to take into account the socioeconomic root causes for why some offenses are committed, and many others. DDAs also may attempt to object to referrals to mental health, veterans, or other specialty courts when, in many instances, it's not within their power to object to a referral to evaluate the person for eligibility (and when these courts were instituted to address those persons most in need). The number of examples is too broad to address here. Thus, criminal justice reform is a system-wide issue, not just a “police department issue,” and it includes addressing the open-mindedness of DAs to accept legislative reforms already implemented. In short, the role of DA offices needs to be scrutinized if we intend to produce meaningful progress.


Finally, the "take it or leave it" attitude of many DAs – when, for example, they claim in negotiations that because "it isn't in the police report" it must not be true -- is now fatally undermined by the brutal reality that officer misconduct and a systemic circle-the-wagons mentality by law enforcement -- or, simply, bad or inadequate officer training -- is more pervasive than some of us ever imagined. How many instances have we seen in the past few months during recent horrific events when law enforcement’s "official" version differs significantly from what is seen on the television before our very eyes? Given recent events -- and I say this as both a former DDA and former Deputy Public Defender -- I now realize it is SO MUCH WORSE than even I ever imagined.


Article: "California DA threatens whistleblower complaint against public defender over protest blog posts"


https://www.washingtonpost.com/opinions/2020/06/19/california-da-threatens-whistleblower-complaint-against-public-defender-over-protest-blog-posts/?fbclid=IwAR19C9kEGAxPTaxgEpp6pAC83PFRauOoW3eY0sLqEwc9NPiijVWCe32WNvQ




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