Same-Day Recommendations

"The purpose of a jury is to guard against the exercise of arbitrary power - to make available the commonsense judgment of the community as a hedge against the over-zealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge." - Justice Byron White, Taylor v. Louisiana, 419 US 522

In certain counties there have been times where prosecutors like to offer what I have come to label “same-day recs.”  From my experience, this only happens in felony cases in district courts, and only in certain counties that, in my opinion, do not believe in the fundamental fairness of our justice system.

In every criminal case, the state will have a prosecutor who will give a recommendation as to what they believe the punishment should be.  The United States Constitution, as recognized by the Supreme Court, has recognized that everyone accused of a crime is always entitled to an attorney.  This is a fundamental aspect in our criminal system literally mandated by our founding fathers, and it is something that I believe should be held in the highest regard and never encroached upon.

The mere fact that our founding fathers recognized the need for ALL those accused of a crime be entitled to an attorney embodies the concept that the state will rarely, if ever, act on behalf for what’s beneficial for accused.  As a criminal defense attorney, I take pride in my work.  I realize that it is only me that stands between my client and what the government can do to potentially ruin their life, in terms of future job employment and possible damage to their reputation.  As such, it is EXTREMELY vital for me to analyze every aspect of every case.  In doing this, an attorney can analyze the very essence of the nature of the charge, and whether or not this accusation is even warranted.  There are MANY factors related to any criminal charge, not the least of which are constitutional issues which can arise from police officers invading a citizen’s constitutional rights.  Aside from this, statements need to be read and reviewed, witnesses interviewed, legal issues need to be interpreted and researched, etc.  I cannot stress how the only way to do this job correctly and with integrity is to analyze every aspect of the case with precise detail.

In many ways, it is no different than how a surgeon expends an immense amount of time in preparation and review before operating on a patient.  Even in surgery, the surgeon takes only calculated moves to hopefully minimize any potential for error.  The surgeon only will operate on a patient after careful and deliberate review, and when doing so only with calm and cool precision.  If the surgeon makes an error, the results can often have fatal consequences.  Now while I recognize this scenario is quite severe, I also find it interesting that in our legal system the standard of proof for which the doctor will be held accountable should something go wrong is with “preponderance of the evidence.”  This is a legal definition which assumes that they are “more likely than not” liable for the mistake, and therefore should be held accountable.  This “burden of proof” is somewhere in the neighborhood of 51%.

What I find interesting about this is that in a criminal case, the burden of proof is even HIGHER.  The burden of proof is “beyond a reasonable doubt.”  This is the highest standard in our entire legal system.  This burden is so high because we place a person’s freedom and liberty above EVERYTHING else...even possible physical harm.  It is the very concept that our forefathers died for in creating this great nation.  It is embodied in the song that is played before every athletic event around the country, the Star-Spangled Banner, and also in the last words our children utter before school with The Pledge of Allegiance… "With Liberty, and Justice, For All…"  We place ths burden so high because our system (ideally) recognizes that a person’s future, their reputation, and their freedom are the most important values a person has.

I write this in response to some of the experiences I’ve had in certain court settings where a prosecutor will give a recommendation where I am threatened to take a plea bargain offer that day because if not, the recommendation will significantly increase later.  Most courts give many resets before a defendant has to make a final decision.  This is done for the reasons outlined previously, and to also give the person time to consider their various options.  I am proud to say that more often than not when threatened with this ultimatum, I have encouraged my clients to turn down this offer and proceed with a jury trial.  I am also proud to state that this has always worked out to the advantage of my client, in that in the end there was a better resolution to their case ultimately in the end.

Regardless, this might seem insignificant to the casual observer.  However, forcing an attorney to plead a case with NO preparation in my opinion is worse than forcing a surgeon to operate without knowing ANYTHING about their patient or their history.  The prosecutors do this, from my perspective, to either do less work because they are lazy, or because they just don’t care.  The sad reality to this, however, is that as an attorney, you might be forced to comply in this situation, because the defendant could be in a much worse position if you don’t.  This kind of practice should be absolutely frowned upon and should be prohibited in my opinion by all prosecutors around the nation.  If I am ever elected to a judicial position, it will be a blanket policy to never let such behavior proceed in my courtroom.  There is absolutely no disadvantage to let an attorney do his job properly.  The state’s recommendation should be fair and appropriate that day, the next week, the next year, or whenever.  If the attorney investigates the case and then believes it is in the best interest of the client to agree to the state’s recommendation, then no harm has been done.  However, in a great many cases, issues arise which are unforeseen that can possibly mitigate the situation to a certain degree.  There is always the chance that incorrect charges have been filed.  Or perhaps the person is guilty of something else, but not what the state has alleged.  Any number of things could potentially arise with a criminal charge.  The bottom line is that the only way we can be sure that justice is done, which happens to be the oath a prosecutor takes before serving, is by allowing a complete review of the alleged charges.  Period.

From my experience this has only been done by prosecutors who have NEVER served as a defense attorney.  It is my humble opinion that every prosecutor and judge should serve as a defense attorney for at least a period of time so they can understand some of the issues presented when dealing with the accused.  The reality, however, is that most of them HAVE NOT.  This is not to say that there are not fair prosecutors and judges who have never worked as a defense attorney.  There are quite a few from my experience.  However, I do believe working and representing the accused does provide a certain amount of insight and perspective when making decisions.  And this is ALWAYS a good thing.

I believe our founding fathers left open many of the issues which could arise when creating our constitution.  I believe they gave us a framework with which to operate.  Given this framework, I believe it is obvious that they wanted the rights of the accused protected at all cost and in every situation.  If I was given the opportunity to create a new constitution, under the provision granting an accused the right to an attorney, I would put a subsection eliminating "same-day" recommendations, while also including a provision mandating that all judges and prosecutors spend at least a year representing the accused before serving.  I believe this is the only certain way to ensure that the rights of the accuses are always upheld, in every courtroom and in all situations.

"With Liberty and Justice For ALL"