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The Adversary System

"You gotta talk to Erin," The Prosecutor said.

Not a prosecutor up here. A few years back some people in Columbus saw my blog and decided to hire me for an appeal in Athens, about 60 miles southeast of Columbus. Their 16-year-old son had been convicted of felony murder and aggravated robbery with a gun, and the judge had maxed and stacked them: 28 to life. Long story short, I got it reversed and sent back for allied offense analysis, and The Prosecutor and I worked it out so the kid would do fifteen to life. That's a deal not a lot of prosecutors would have made; basically, we had to make the jury's conviction on a three-year gun spec disappear. But The Prosecutor's a real good guy, and, considering the distance, I'd maintained contact with him throughout the case, and gotten along with him from the beginning. Sometimes, the best thing you can do for a client is not be an asshole.

This was the second time The Prosecutor had complained about Erin.

I'd talked to Erin on several occasions. She's a public defender down there, and she's called me a couple of times to run something past me. Seemed perfectly reasonable, but The Prosecutor was of the opinion that Erin was too confrontational, to the point where it was adverse to her client's interests. At least, The Prosecutor thought so.

There's a young lawyer up here I've gotten to know in the past several months, I'll call him Aaron, and we have lunch once a month or so. It's sort of an informal mentor-mentee relationship, but it's also sort of going through a time machine, because Aaron's got The Fire, like I once did. The other week, his Outrage Du Jour was the fact that this county prosecutor's office overindicts people.

"Gosh," I said.

Injustice has always fascinated me. Back when I was in law school, for whatever reason, I devoured everything I could find on the subject. Books about cases of innocent people being convicted. Sacco and Vanzetti (they probably didn't do it). The Rosenbergs (they definitely did).

And I've seen injustice. About thirty years ago, I represented a guy we'll call Derrick who went off to prison for 15 to 25 for a bunch of arsons, which I will go to my grave believing he had as much to do with as I did. They let him out after 21. He called me several times after that. He'd lost his mind in prison. Literally; what he said no longer made sense. He finally stopped calling. I just sent a letter out to a kid telling him that the Supreme Court had rejected our appeal, so he's going to be doing twelve years because he wound up with two appellate judges who didn't understand that you don't apply a sufficiency of the evidence test to determine whether error is harmless. One of the former chief trial prosecutors up here spent over a decade seeing how many Brady violations he could commit; the latest two victims of his work were just released, after spending 24 years in prison.

Yet if you ask me now whether the criminal justice system is indeed just, I'd say yes. It mostly gets it right. Sure, innocent people go to prison on occasion, but there are a lot more occasions when guilty people don't. I usually try to talk to a jury after a trial, and on about two thirds of the times that I've gotten an acquittal, the jury told me they thought my guy did it, but the state hadn't proved it to their satisfaction. The bromide is that we'd rather let ten guilty men go free than convict one innocent person, and we do a lot better than that. Or worse, depending upon your perspective.

But I wonder how much of that is just surrender on my part. After a while, you become inured. To a certain extent, you have to, or you couldn't do this. After a couple of years, I learned to stop thinking about whether something I did or didn't do is why Derrick went to prison for 15 to 25. After a while, you're happy when you get that aggravated robbery knocked all the way down to a misdemeanor, even though you know your client's not even guilty of that.

And sometimes we wind up doing things just to go along. A couple months back, I had a case for a guy we'll call Don, who'd gotten drunk, called his baby mama and threatened to kill her for some imagined slight, then stumbled over to her house, broke a window, came in and passed out on a chair. He was charged with aggravated burglary and vandalism, and long story short, I should have gotten him a deal for the vandalism instead of having them drop the burglary to a 4th degree felony. But the prosecutor was too lazy to take it down to his supervisor to get the file remarked, and I was too lazy to make him do it. No harm, no foul; I talked the judge into giving my guy paper.

But Erin wouldn't have been too lazy to do that, and I'm hoping Aaron won't be, either. Maybe just don't get bent out of shape because people are overindicted.

Or maybe you do.


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