I was making an appearance on a first DWI. My client had declined to participate in the cop’s agility exercises (also known as “field sobriety tests”), both at the scene and at the station. The cop claims that at the scene my client showed signs of intoxication, but on the video from the station my client is rock solid.
In court, I handed the file to the number-two prosecutor: this one is a try-or-dismiss case; I, of course, think it should be dismissed. “We have a policy of trying all total-refusal cases, unless there is a good reason—like a medical excuse—for refusing. I’m sorry.”
My first thought was this: another stupid Lykos policy, implemented without consideration of the ethical ramifications. Trying all total-refusal cases might be politically-appealing: it might encourage people to cooperate with the police agility exercises by sending the message that refusing to play is not a free pass; it might make the DA appear to the SWRVs to be tough on crime.
But a policy of trying all total-refusal cases will result in people being put to trial on legally insufficient evidence—a waste not only of the defendant’s time, but also of valuable and increasingly scarce public resources. Every court day spent trying a total-refusal case is a day that could be spent trying a family-violence assault case; for every frivolous case the DA’s Office tries, it has to lower its plea offers on a host of other cases.
Further, even when the evidence is legally insufficient, anything can happen in a jury trial. In every case, there is a chance that something will go wrong for the government, or that something will go wrong for the defense. If the government forces enough cases that should be dismissed (because the evidence appears to be nowhere near proof beyond a reasonable doubt) to trial, someone will be convicted. So, aside from wasting resources, a policy of trying all total-refusal cases will result in people being convicted on factually and legally insufficient evidence.
None of that has any positive correlation to a prosecutor’s special duty, which is to see that justice is done. There is no justice in “trying all total-refusal cases.” A policy of trying all total-refusal cases—even if you exclude those total-refusal cases in which a person has a “good reason” to refuse—is unethical.
Unethical policies are cited and followed only by thoughtless or otherwise unethical lawyers. It occurred to me that dismal morale in the DA’s Office might be contributing to poor ethical practices among the line prosecutors. To gauge the depth of the problem, I stepped out of the courtroom, and conferred with a couple of prosecutors who had been around for a lot longer than the #2 who informed me of the policy. Is there a policy of trying all total-refusal cases? “No, that’s ridiculous.” “That’d be unethical.”
So rather than another stupid Lykos policy, implemented without consideration of the ethical ramifications, it appears that this is a stupid line-prosecutor policy, implemented without consideration of the ethical ramifications.
I returned to the courtroom to lie in wait for the chief in that court. Once she was settled in, I asked her: Do you have a policy of trying all total-refusal cases? “Yes, unless he has a medical excuse or other good reason for refusing”: almost verbatim what the #2 had said. Further, “it sends the message that refusing the FSTs is not a free ride.”
Don’t you think there are ethical problems with that? “Well, we evaluate each case.” That’s what we call crawfishing; before I left the courtroom the chief prosecutor had scuttled into a hole in the mud, denying ever having said that there was a policy at all; her #2, like a good little ethically-challenged toady, was agreeing with her.
I am slow to anger; I don’t get mad very often. So I started writing this last week, but held off on publishing it until I had cooled down a bit. I haven’t named the players here, but I hope they’ll recognize themselves, because I want to thank them for revealing themselves to me: if we hadn’t had this discussion, I might never know that you aren’t to be trusted. Unethical, and liars to boot.