The district attorneys in most Massachusetts counties have strong training divisions. Experienced prosecutors run internal seminars educating young lawyers on a myriad of subjects. Among other things these seminars include how to try a case, the amount of bail to request for particular matters, legal standards for evidentiary challenges, trending criminal law issues and more.
Pertinent to this article, young prosecutors are also taught the value of a case at these gatherings. They are instructed on what they should be recommending in exchange for a change of plea. They are taught to be fair and reasonable and to strive for a just result. Yet there are some prosecutors who tend to be unrealistic in their assessment of a case. These are usually young, inexperienced prosecutors who are handling cases in the district court. This issue has many of my clients asking me what I can do when the district attorney is unreasonable. The answer varies from district attorney to district attorney and from case to case. Below are some
Show The Prosecutor The Flaws In His Position
The most diplomatic way to address this issue is to delicately point out to the prosecutor the errors in his approach to resolving the case. Take a recent case I had in Middlesex County district court. The defendant was charged with possession with the intent to distribute a class B drug in violation of Massachusetts General Laws Chapter 94C Section 32A. The defendant had in his possession over a gram of cocaine. The drugs were found in his possession after a routine traffic stop that would likely have survived a constitutional challenge. He has a very significant criminal history involving cocaine possession and a documented cocaine use problem. The drugs were undoubtedly for his consumption, not for distribution. After several discussions and production of drug treatment records proving a lengthy cocaine use history the prosecutor agreed to drop the case from a felony to a misdemeanor, that being possession of class B, a violation of Massachusetts General Laws Chapter 94C Section 34.
Offer A Disparate Tender of Plea When The Prosecutor Won’t Listen
Sometimes, no matter what you do or say a young prosecutor simply won’t listen to you. This type of person is often too stubborn or overwhelmed or unprepared to engage in meaningful case resolution efforts. I witnessed this today first hand in an Essex County district court. The defendant was charged with disposition of marijuana, a class D substance, Massachusetts General Laws Chapter 94C Section 32C. The district attorney wanted a guilty finding with probation. A condition of probation was for the defendant to get a GED, attend drug abuse counseling and have random drug screens. In advance, through a letter, the defense attorney sought pretrial probation. In support of her request she told the prosecutor that the defendant was attending a community college out of state, that he had graduated high school and that he randomly tested negative for drugs while on pretrial release. She made clear that the defendant was not a drug user. The district attorney had obviously not read the defense attorney’s letter. Moreover, his logic regarding random drug testing was patently flawed. The man was charged with distribution, not possession. He is not a user. So the defense attorney asked him why request drug counseling and screens. He responded in a nasty manner to “take the deal or go to trial”. There were a couple of problems with his suggestion. First, the defendant didn’t have to go to trial. He could and did ask the judge to CWOF the case. Second, he didn’t have to accept the probationary conditions requested by the assistant district attorney.
So, the defendant offered a change of plea. The judge caught on very quickly and asked the prosecutor why the defendant needed the GED when he had a high school diploma. The prosecutor couldn’t answer the question. The judge then asked the prosecutor why random drug testing when the charge was distribution, not possession for personal use. Again, the prosecutor was stumped. The same question was put to the prosecutor about drug counseling. Again, he had no adequate response. The result was a just one. A thirty day CWOF, no conditions. In one month the case will be dismissed and the defendant will have no criminal record.
Go With An Experience Criminal Defense Attorney
The Law Offices of Stephen Neyman, PC has been successfully defending people all throughout Massachusetts. Call us at 617-263-6800 or send us an email. We can help you.