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For eight years, off and on, I had a relationship with — lived with — someone. It was a toxic relationship. She not infrequently berated me for what were really insignificant and only actually perceived slights. She was a wonderful woman.

I have a memory from high school of a friend who engaged in what today would be considered an act of felony vandalism. It may have been then, too, but in those days we understood that sometimes kids did destructive things, because, by definition, they’re immature. We didn’t saddle them with felonies because of it. But I digress (as I am unfortunately wont to do). He was a great guy.

These days, I ostensibly make my living as a criminal defense lawyer in Fresno, California. As you might imagine, I rub elbows with a number of deputy district attorneys. Not infrequently, I’m mystified by their attitudes towards people accused of crimes where there is little (or even no) evidence beyond innuendo and supposition to support the charge. These DDAs forge full steam ahead towards a conviction, sometimes stretching the law — in some cases even breaking the law — in order to obtain a conviction. The majority of them are pretty nice people.

There’s a common thread here.

How Bad Things Get Done by Good People

In the case of the woman above, friends who knew us asked, after the eight-year relationship ended, how I could stay with “such a horrible person” so long and why I didn’t leave sooner.  The answer is that she wasn’t a horrible person.  As I explained to my friends, it wasn’t her: it was the dynamic of our relationship.  Over time — who really knows why? — she developed a habit of feeling and acting a certain way towards me.  You might think I did something to earn this, that I deserved it, but I’m pretty sure I did not.  I was a pretty great guy myself, or so people who knew me said.

My high school friend committed the act of vandalism while with a group of others — some of them may have been great guys, too, but I didn’t know them enough to say — and later was ashamed of his own behavior.

You may not think the deputy district attorneys fit what I’m describing here. And if I were only talking about the temporary insanity that goes along with group-think, I’d probably agree.  Yet the attitudes and opinions of the DDAs are reinforced by the offices in which they work and the people with whom they spend a lot of time.

Theirs is an institutionalized and fossilized group-think; backed by policy.  (Their actions and attitudes are also informed by other phenomena: oversimplification and hasty generalization.  That, however, is a topic for another article.)  As with other examples of group-think, what happens depends on the specific characteristics of the group.  There is no doubt that the mileau of the Fresno District Attorney’s office differs quite a bit from that of the Dallas County District Attorney’s. [1]With respect to Egan’s excuses, the real reason Fresno’s conviction rate is so low has less to do with money than with the fact that the department overcharges those who do commit crimes and wastes resources by charging people who should not be charged at all. The prevailing theory is that to maintain her “tough on crime” image, Egan prefers to charge even weak and unlikely cases. “Let the jury sort it out,” she says. She gets to look tough, but what about the innocent people who, unable to make bail, sit in jail until their case meanders its way through the court to the jury? As for the “more money” issue, in Summer 2007, she added 15 prosecutors to her office; the Public Defender added about two-thirds as many attorneys. If this page and this page — both maintained by the County of Fresno — are correct, there are now more than 300 people in the DA’s office and 132 work for the Public Defender in Fresno County.

And as Judge Katherine Lucero, a supervising judge of the Santa Clara County Juvenile Dependency Court can tell you, who is in charge can make a big difference in the approach a particular group of prosecuting attorneys take towards the public they purportedly serve.

Treating Clients & DDAs as Individuals

My constant fight with individual members of the DA’s office is to remind them that each of my clients are unique, that each of my clients is an individual.  Institutionalized group-think makes that a challenge.

The job of a DDA is not to obtain convictions, but to seek justice. [2]People v. Fuller (1982) 136 Cal.App.3d 403, 424 [186 Cal.Rptr. 283][“prosecutor represents the state and has a high duty, actually and in appearance, to seek justice, not merely convictions”].  While the law attempts to ensure some predictability and evenhandedness to the dispensation of justice, the fact is that real justice requires an individual assessment of each offender.  It’s in vogue these days to treat all accused persons as criminals equally worthy of disdain, contempt and a lack of respect for them as human beings and to keep that attitude in mind when deciding whether or not to plea bargain.  Part of my job is to counteract this tendency.

Ironically, the reason this doesn’t always work is because the DA’s office doesn’t just fail to treat accused persons as individuals: it fails to treat its own DDAs as individuals. If the stories some DDAs tell are true, many of them are not allowed to do what their own investigation and understanding of the case tells them they should do. They’re not allowed to act upon the case “in the interest of justice.” Whether the case should have been filed, or not — and in more than a few cases, it flat out should not have been filed at all — it’s the conviction rate that counts. In the California Rules of Court, Rule 4.112(a) actually requires that,

  1. All trial counsel must appear and be prepared to discuss the case and determine whether the case can be disposed of without trial;
  2. The prosecuting attorney must have authority to dispose of the case….

Yet Fresno County District Attorney Elizabeth Egan appears incapable of recognizing that appropriate dismissals or “deals” demonstrate that her office makes sound evaluations and realizes that some cases, in the interest of justice, should be dismissed. Instead, she appears to believe that dismissing or making a more fair disposition under the individual circumstances is tantamount to being “soft on crime.” [3]And yes, I speak of the evil “plea bargain” without which our system would collapse from its own weight., [4]In fairness to Ms. Egan, this attitude is not limited to her office and is actually driven by a more widespread societal group-think. On the other hand, that’s why we have people whose job it is to know certain things and act upon that knowledge; because uninformed mob rule is a bad thing.

The Detrimental Effect of Group-Think on Justice

From conversations with DDAs, I think this reticence about allowing prosecuting DDAs to plea bargain comes from a misplaced assumption that proper consideration was given to the case prior to filing the charges. Yet prior to the involvement of a defense attorney, the DA’s office, supplied with the one side of the story presented by law enforcement and any alleged victims, may not have had all the information to make an appropriate judgment. That, after all, is why our system presumes people to be innocent until proven guilty. And it is why our Constitution and sometimes our courts require the prosecution’s case to “survive the crucible of meaningful adversarial testing.” [5]People v. Dunkle (2005) 36 Cal. 4th 861, 930 [32 Cal.Rptr.3d 23].

It is not uncommon to try to settle a case with a DDA who cannot make the determination as to a possible disposition without first taking it back to their supervisor.  Not only does this result in a delay in the disposition of the case (and, incidentally, increased cost to public and private resources not limited to potentially unnecessarily prolonged contribution by the client to jail overcrowding), it is contrary to the rules of court.  It sometimes results in rejection of a defense offer of settlement by someone who might not have the necessary input from defense counsel that could cause the supervising DA to recognize the defense offer has merit.

Institutionalized Group-Think Hurts Everyone, Not Just Those Accused of Committing Crimes

The institutionalization of group-think has a significant negative impact on our justice system.  First, the District Attorney’s office is afraid to do its job as required by Justice and the Constitution because of public attitudes which do not differentiate among individual crimes or criminals.  This societal group-think leads to the District Attorney’s fear of appearing soft on crime if they treat accused persons as individuals and take into account information supplied by the defense to arrive at a more fair disposition. This societal failure to discriminate — shared by some DAs and DDAs — combines with a policy that ignores the California Rules of Court by denying individual DDAs to negotiate settlements on an individualized basis.

In the end, we all lose. Not only is justice delayed justice denied, but “justice” applied without recognition of individual differences amongst accused persons can result in longer incarceration periods than necessary in many circumstances. The increased burden on already-overpopulated jails and prisons impairs our ability to fund other needed services, while simultaneously inviting the federal government to put California prisons into receivership.

It would help if District Attorney Elizabeth Egan and other higher-level supervisors within her department would remember their duty to justice, rather than being concerned about special interest groups who might make a fuss at election time.

Ms. Egan’s job is not to obtain convictions, but to seek justice. (People v. Fuller (1982) 136 Cal.App.3d 403, 424 [186 Cal.Rptr. 283][“prosecutor represents the state and has a high duty, actually and in appearance, to seek justice, not merely convictions”].)


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