Monday, October 12, 2009

Who We Are, What We Do, and How We Do It


We are lawyers, paralegals, investigators, victim support, and admin staff. I could take the time to explain the set up, or I could link you to the official site. Guess which I'm doing....


I thought I'd start by giving you a quick look at how the D.A.'s office handles a typical case. No two cases, or defendants (or prosecutors, for that matter) are alike but the mechanics of the process are, hopefully, consistent throughout the office.

The first step is for a file to land on the desk of an intake prosecutor, an ADA assigned to the Grand Jury Division. That prosecutor will read the offense report (a detailed report of the incident written by one or more police officers) and the probable cause affidavit (the "PC Affidavit," upon which the arrest is made and the charge filed) to ascertain which, if any, crime has been committed. She (I'll use "she" because my court's intake prosecutor is a she) will then draft the indictment. This will contain all of the elements of the crime: the date, the place, the victim (if any) and the illegal act. If even one of those essential elements is left out, the indictment, and the case, could be dismissed.

She next presents the indictment to the Grand Jury, twelve ordinary citizens, and they will decide if there is enough evidence to go to trial. If so, they vote to indict, if not, the case is "no-billed." This basically means all charges are dropped. Sometimes, if new information comes in, we can seek to reindict but in practice it usually means the case is dead and buried.

The Second Step, once the case is indicted, is for the file to arrive on the desk of my chief. She will then assign the case to one of the four (including herself) assistant district attorneys - ADAs - in the court.

The Third Step is for the ADA handling the case to review it in order to make a recommendation, or "rec." This is a plea bargain offer that the defense lawyer will take to his client.

In making my recs, I am most interested in the following (not in any particular order):-- the crime charged and the facts of the crime itself (not all thefts/assaults/arsons are equally heinous);
-- the impact on (and wishes of) the victim;
-- the defendant's criminal history;
-- the age of the defendant;
-- the strength of the case, in terms of whether I think I can win at trial.

There are some cases that will, very often, need more information before being pled out, though I can usually make an initial rec based on the following:

· Any crime of violence will absolutely require input from the victim. That's easier said than done, sometimes, and I'll blog about it another time. For the inital rec I assume that I have a cooperative victim or victim's family;
· DWIs will almost always need me to look at the video. By "the video" I mean the recording from the officer's patrol car. If they do it right, and they usually do, they position their car so the camera in the windshield captures the individual doing the field sobriety tests. Microphones on the officer's uniform pick up any conversation. For the inital rec, and before I see the video, I assume that the video shows that the defendant is intoxicated;
· Drug cases will sometimes, not always, have a chemist's report already in the file. This report summarizes the kind of drug found on the defendant, and the amount. If there isn't one and the defendant contests either the amount or type of drug found, I can get one within a few days.

I will write the initial rec on the front of the file, which will then be put away until the next court setting for that case.

The Fourth Step is that court setting. There, the defendant's lawyer will review the file, including the indictment and the PC affidavit, and make a note of the rec. We will talk about the case and he will present the rec to his client. At some point, now or later, he will present his defense in an attempt to improve my offer, or possibly persuade me to dismiss the case altogether. There then follows a period of negotiation, which can last days, weeks, or even months.

Eventually, one of three things will happen:

1. The defendant will plead guilty to the charge alleged or a lesser version,
2. the case will go to trial, or
3. I will dismiss the case.

And that is probably the order of frequency.

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