Wednesday, August 9, 2023

One allegation, two prosecutors - and a startling disparity.

How much does justice, or the outcome of a case, depend on what amounts to a roll of the dice?

You see, the thing about being a prosecutor that some folks don't realize is the broad discretion assistant district and county attorneys have with their cases. Everyone's busy, everyone's overworked so generally speaking unless a line prosecutor screws up, their work doesn't get too much scrutiny.

That's especially true with the "smaller" cases - the ones that don't make the headlines, or maybe just the crimes that don't have a specific victim (I'm thinking drugs cases, possession of firearms etc).

I was always acutely aware of the power that this discretion vested in me, and lord knows I hope I used it wisely and with mercy and compassion. And I say that because I'm seeing that some prosecutors do not. 

I know, I know, a horde of defense attorneys are welcome to pile on with "we know, you idiot," or "welcome to our world," but look - I always knew there was a disparity between the way I'd look at a case and the way a prosecutor in, say, Lubbock would. But it's worse than I realized, I'm more than willing to admit that.

Recently I found myself in a situation that made me wonder what kind of system we're working under. Here's what happened (names, unimportant details, and other minor facts changed to protect the innocent/guilty).

Facts of my case: young African American man pulled over for driving in the left (passing) lane. Not speeding, but he wasn't passing anyone so the cop decided to pull him over. I didn't like that, and the phrase "'driving while black" immediately rang in my head.

Cops smells marijuana, and searches the car. Finds a bag of MJ, some THC carts, and a gun.

  • MJ = Class A misdemeanor; 
  • Carts = Felony 2; 
  • Gun (he was allowed to have it but not if committing another offense) = Class A misdemeanor.
I ran this by one prosecutor who liked everything about the case, wanted him to plead to having the carts, and be on felony probation. Second degree felony probation, for five years. Pretty damn harsh.

I ran this by a different prosecutor hoping for a different perspective, even wondering if I was missing something. She didn't like the stop, didn't much care that a kid had THC carts, but wasn't thrilled about the gun. However, she also wasn't thrilled about tagging a young kid with a criminal record for, essentially, having weed. She proposed some classes in exchange for a dismissal.

The difference between these two prosecutors? One in Lubbock and one in Travis? Maybe one in Blanco and one in Hays?

Nope. About four feet. Both in the same jurisdiction (which will remain nameless), working in the same court, just at different tables in the same room.

Naturally, I did business with Prosecutor #2.

I couldn't, and still can't, get my head around one ADA wanting the kid to have a felony record and the other wanting to dismiss. And the scary thing is, both can be right. Both have the power to be right. If Prosecutor #1 hadn't been out that week and I'd not spoken to Prosecutor #2, my client would be at risk of losing everything.

And, of course, thank heavens for the level head, compassion, and decency of Prosecutor #2.

What's to be done about this? Nothing. At all. I share this only to let you all see the minefield that is the criminal justice system, and how the whims of just one person can destroy or salvage someone's career, even life.

Scary, huh?


  1. Chilling. Thank you for providing such a clear example .

  2. If you had negotiated with Prosecutor 1 (maybe you did) offering an alternative such as the one offered by Prosecutor 2 would it have made any difference? Are ADA’s open to discussions?

    1. Honestly, no. I've had multiple cases with Prosecutor 1 and there is little room for movement. I don't think they would even have considered a resolution like that, not for a second.


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