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Frye and Cooper: the Prosecutor

Today's question:

If you're handling a criminal case -- or on the receiving end of one -- and you had a choice between having a fair judge and having a fair prosecutor, which would you choose?

If you're a layman, or you're a lawyer who doesn't do much criminal work, you'll answer "the judge" almost instinctively.  The very idea of an unfair judge is anathema; a fair, impartial judge is the heart of the entire justice system.  We have ways of making sure the judge is fair; a judge's decisions will be reviewed by other courts, and if they're not fair they'll be overturned.  (At least, that's how it works in theory.)  Sure, she has a lot of discretion, but that makes her fairness all the more important.  There are few experiences worse than trying a case to an unfair judge.  And one of the things within her discretion is the sentence, and that can mean years of your client's life.  Besides, the prosecutor is on the other side.  He's not supposed to be fair. 

But if you practice criminal law a lot, you know an unfair prosecutor can do far more damage, because he has far more discretion than the judge.  He has almost total control over whether to bring charges, what charges to bring, and what charges he'll accept a plea to.  That latter one is huge.  As the Supreme Court recognized a couple of weeks ago in Missouri v. Frye and Hafler v. Cooper (discussed here, here, and here), our justice system is not one of trials, but of pleas:  around 95% of all criminal cases end in a plea.  That means the prosecutor has just as much, if not more, affect on the outcome as the judge.  Sure, if your client gets convicted of felonious assault, the judge can send them to prison for anywhere from two to eight years.  But if you can persuade the prosecutor to drop it to an aggravated assault, the chances are good your client's not going to go to prison at all.

Every now and then I do a blog post I call a bullshit ramble, and today's was prompted by three things.  First, I've got a case where my client was maxed out on a felony murder and aggravated robbery, with a gun spec.  That's 28 to life.  He was 16 years old at the time.  I got the case reversed and remanded to determine whether the two offenses were allied.  I'm going down to see the prosecutor on Tuesday to try to persuade him to not only agree that the offenses are allied, but to elect to sentence my client on the lesser offense.  That's a long shot, but he's a fair guy, so I figure it's worth six hours in the car to find out. 

Prompt No. 2 was the recent race here for country prosecutor.  We change prosecutors up here with the frequency that the Catholics change popes.  When I started practicing, John T. Corrigan had already been the Cuyahoga County Prosecutor for nearly twenty years, and went on to serve another fifteen.  Stephanie Tubbs Jones took his place, but quickly went on to bigger things -- U.S. Congresswoman.  Then Bill Mason came in in 1998, and he's been there since.

But he's retiring, so this year for the first time since 1956 we had a contested election for prosecutor.  Primary election, that is; as in most big cities, who gets the Democratic nomination pretty much seals the deal.  There were five candidates, but winning in a walk last month was Tim McGinty.

That's got a lot of defense attorneys worried.  McGinty was a former high-profile prosecutor, then served about twenty years as a judge.  I've tried cases in front of him, and I'd say he was fair, although in his calls, ties went to the prosecution.  Let's put it this way:  I doubt that his bailiffs had a lot of jury waiver forms lying around.  He wasn't the worst sentencer, but he came down harder than most of the other judges. 

He's also got judges worried.  McGinty doesn't think much of the efficiency of the criminal justice system, and he's not shy about voicing his opinion.  He ruffled more than a few judicial feathers with his criticisms, and has gotten a reputation as a guy who Doesn't Play Well With Others.  That makes even some prosecutors concerned as to what he's going to do, what changes he's going to make.

He's certainly going to make changes, and that's probably for the good.  His central point, that the criminal justice system is ineffecient, is indisputable.  The problem is that while efficiency and fairness are related, they're not the same thing; in fact, sometimes they can be at odds.  Getting a case through the justice system quickly doesn't necessarily mean the result is fair, and it can often mean that it isn't.  We know that McGinty attaches a high value to efficiency.  We'll find out what value he attaches to fairness, especially when the two conflict.

The final prompt was Frye and Cooper, particularly Scalia's dissent.  He posed the question that if the focus could now be placed on the effectiveness of counsel in securing a proper plea bargain, did that mean the defendant was entitled to a "fair" one?  Let's say, for example, that your client is one of three people who are charged with the exact same crime.  All had similar roles in the offense, and similar criminal records.  If the co-defendants get a better deal than your client, have his due process rights been violated?

I'm not sure courts are going to go that far.  As I mentioned, though, a prosecutor has almost unfettered discretion in plea bargaining.  The newfound emphasis on the plea bargaining procsess noted by Frye and Cooper at least raise the possibility that there are some limits on that discretion.

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