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Getting the mark

The education of the criminal bar continues apace, and they just don't understand how things work here in Cuyahoga County.

I belong to the Ohio Association of Criminal Defense Lawyers, and they have a nice listserv:  a great place to go if you need a boilerplate motion, some advice about a search issue, or who you can get as an expert on a particular issue.  Last week somebody wrote in saying they had a case here where the client was charged with a felony four drug possession.  He'd tried to get a misdemeanor or a felony five, without success:  the file had been marked to the felony four, and the prosecutor was unwilling to request a change.  The lawyer wanted to know if the mark was likely to get better on the day of trial.

And the response was, "what is this 'mark' of which you speak?"

Not completely; there is some reason for the system.  This isn't a small county with just a handful of prosecutors; there are 43 "room" prosecutors, which handle the ebb and flow of the usual criminal cases, plus about as many "special" prosecutors, who handle particular types of cases -- major trial (murder, rape), public corruption, major narcotics, child sex abuse, and the like.  The room prosecutors often are inexperienced, sometimes just brought over from juvenile court to the felony division, and they require some supervision.  Plus, it prevents the situation where the defense lawyer says, "The prosecutor up on the 19th floor let me plead to a four in this type of case.  Why aren't you giving me the same deal?"  (Which, of course, is a variation of what we get from our clients:  "I know a guy who got a rape charge dropped to disorderly conduct.  Why can't you get me that deal?"  Sure you do.)

That's not a defense of the system.  It used to be that each floor had its own "chief prosecutor," who was responsible for approving deals on fourth and fifth degree felonies, and it's difficult to understand why that system was dropped.  And it's equally difficult to understand why someone in major trials, who's been trying murder and rape cases for a decade or more, can't be trusted to make his own decision about deal to make.

Be that as it may, the system's not going to change any time soon, so you need to know how to handle it.  First, understand that the prosecutor you're dealing with is the one who's going to be "selling" your proposal to the supervisor.  That can be a problem, especially with new prosecutors:  they aren't going to be willing to risk the ire of a supervisor by arguing for a particular mark, and even if they were, they don't have the credibility with the supervisor to get it.  Then there are prosecutors who see this as a 9-5 job, and are simply going to leave it up to the supervisor.  There are some prosecutors, though, who have been around long enough to achieve credibility, and are willing to make the argument for the mark you want, as long as it's reasonable.  And the prosecutor does have a motivation to get a reasonable mark:  he's the one who's going to be trying the case, and the office does keep track of wins and losses.  Being forced to try unwinnable cases is not a path to career success.

But, to get back to the original question, is the mark going to change?  That depends.  There's an office policy that the file won't be "remarked" unless there's a change in circumstances, like some new evidence.  If you feel that the floor prosecutor hasn't really presented the reasons for the mark you requested, you can always ask to meet with the supervisor yourself; sometimes, you'll get in to see the wizard, most times you won't.  It depends on the judge, too.  A lot of judges won't participate in the plea bargaining process, even to the extent of telling you what sentence they're likely to impose.  But a lot of judges will, and some will go even further and get involved in what deal is eventually struck.  On one occasion, I had a judge tell the prosecutor that he should've had his case on a leash, it was that much of a dog, and to go get a better mark.  Which he did.

And keep in mind that factors other than the merits of the case may come into play in the supervisor's decision of what mark to give.  I had a case once where the mark was unreasonable, and I was told by another prosecutor that the reason for it was that the supervisor wanted the prosecutor I was dealing with to get some trial experience.  It seems to me that a plea bargain should be an attempt to reflect what the defendant's actual criminal conduct was; after all, this affects people's lives.   When the primary, if not sole, consideration is whether the prosecutor needs more trial experience, that's pretty screwed up.


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