TDCAA Community
Prosecutor meeting with Defendant and his Attorney

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January 03, 2007, 21:34
Martha W. Warner
Prosecutor meeting with Defendant and his Attorney
I have often wished that I had the time to talk to Defendants and their attorneys like they do on Law and Order.Does anyone? 95 % of my communication is only with the attorney.I can see some advantages but can also see how keeping a distamce is a good thing too. I've been conned a few times over the years but every once in a while I want to make sure the Defendant really knows what is about to happen to them if they go to trial.I often have Defense attorneys make a point of me dramatically telling them no to a counteroffer. Any war stories to shed some light on how you deal with the Defendants?
January 04, 2007, 09:17
I once had a defense attorney set up a meeting with me so we could discuss my unreasonable plea offer. When I arrived at the meeting place, I was rather surprised to discover that defendant (who was, incidentally, a former DA), his wife, and his 3 young children were all sitting there too. Then, with many tears and much pleading, the all, yes, all of them, made their case to me why I should reduce my indecency/att. sexual assault to a misdemeanor so he could continue to practice law (in the office where the assault occurred....).
I was so offended by this blatant attempt at manipulation that I almost walked out, but I let them say their piece, the offer remained the same, and eventually, after a lot more begging and pleading, he took it.
January 04, 2007, 10:40
Don't meet with Defendant's Family.
January 04, 2007, 13:06
Mark Edwards
I agree with JB. About once or twice a year I will meet with a def. and his/her lawyer. This usually happens when I am making a real sweatheart offer, and I want to asssure myself that the def. is worthy of my generous offer.
January 04, 2007, 14:33
When I was a defense attorney, I often had clients (appointed) who would not believe that I relayed their one of a kind heartfelt story to the DA and could not get a better deal, so they would want to talk to the DA themselves. Once the DA took the defendant up on it (with me also present) and in the end we both got a frivolous grievance filed against us. I have never done it as a prosecutor, but I'm sure there might be an instance where it could be beneficial.

Also, I would never meet with the Defendant without his attorney. Appealed a case where the AG did that and got it reversed when they later introduced statements he had made to them (plea negotiations).
January 04, 2007, 15:55
Drew Gibbs
I once met with a DWI defendant's wife. The defense attorney claimed his client spoke no English and that his on-tape "no habla" act was no act at all. I noticed him sitting in the courthouse hallway next to a white woman. I introduced myself and asked the woman if she spoke any Spanish.

She said, "No,ha ha, not all."

"And is this your husband?"

January 04, 2007, 16:59
Scott Brumley
Perhaps it's different in your Utopian jurisdictions ...

Most of our misdemeanor defendants (including some of those who have retained counsel paid for by the family) have never met their lawyer. They will show up for arraignments, docket calls, etc. and wait in the hall that runs from our office to one of the courtrooms. The first one they see in a suit -- "yeah, that's gotta be my lawyer." So they corner us, complain about why we haven't taken their calls and then begin telling us about their case. Sometimes it's hard to speak up and say, "uh, sorry, sport. I'm the one on the other side." Two reasons make that difficult. First, sometimes the material they want to give is priceless. Of course, we know that's not kosher. Second, but more pragmatically difficult, a lot of times you just can't shut them up. Especially if they're drunk, stoned or having a hard time with their old man/lady.

Then there's the problem that I come from civil land, so when I speak, it sounds like Armenian to them.
January 04, 2007, 18:29
I once had a problem proving a prior at punishment. Couldn't connnect the defendant to the prior. I noticed an elderly woman had been sitting on a bench outside the courtroom throughout the trial. I approached her.

Next thing I know, I have her testifying on punishment, connecting the prior to the defendant based on her personal knowledge -- she had been to all of his many court appearances. It was his mother, who seemed pretty glad to help out. The defense attorney acted as if I had violated some constitutonal protection.
January 04, 2007, 21:48
Martha W. Warner
I must be getting cranky from my new years weight loss program because I have no patience. I swear I almost slapped a smarmy smirk off of a 21 year old "pretty boy always get what I want cuz I'm so cute" face.

Thank God I don't have to talk with Defendants except rarely. I just thought I might be the only one that didn't.

As for the Defendants family I try to keep my distance because I know they hate my guts and would love to set me on fire and throw me down the newly opened three story rotunda in the court house. That's a nice visual.When you are on fire and are flying through the air people get out of your way!

Besides I don't want to lose my rightious indignation for the terrible offense their loved ones have committed and I can't help but feel sorry for them
January 05, 2007, 06:57
While not exactly "on point," this is an interesting indirect communication between my office staff and a defendant's family member. A defendant charged with child porn and agg sexual asslt of a child plead guilty without an agreed rec back in the fall. The cases were reset for sentencing this week. A few days prior to the sentencing, my chief investigator was out and about and was approached by the defendant's father who began to lament about the "unfortunate and unfair" situation of his son. At first, my chief investigator didn't know the familial connection between our defendant and the guy he was talking to. Also, the defendant's father obviously didn't know that my chief inv no longer worked for the Sheriff's Office and that he worked for me. The father lamented how "that Mike Little" was a
"son-of-a-b--ch" because his son had just made a mistake and "that Mike Little" just wanted to "throw his life away." My Chief Inv stopped him and told him that he worked for me. Now that I think about it, I'm not sure if he disputed my characterization as an sob but oh well... But back to the story, that poor unfortunate defendant who had just "made a mistake" by possessing a whole bunch of despicable child porn and had repeatedly molested a young female was maxed out on the child porn charge and got 75 rodeos for the molestation charge. I guess I'm a REAL sob now...
January 05, 2007, 08:03
Mike, next time that we see each other remind me to tell you the story of how in the 70's my father was called a "son of a b----" by the complaining witness on the stand in an aggravated assault case. You'll enjoy the story.
January 05, 2007, 14:16
Jeff Swain
I have one of these defendant chats (always with counsel present) about twice a year or so. So far, the defendant has always accepted our plea offer after our chat. I think they fall into two categories: those who want to pitch their case on their own and those whose attorneys don't have the ability or the want-to to get defendants to do whats in their best interest.
January 05, 2007, 16:14
E. Foley
I could be a fashion goddess. I just know it. But unfortunately, I'm stuck in wash 'n wear land, not solely because of the exhaustion and poverty and figure problems associated with motherhood, but also because the nice lady who runs the dry cleaners that I and my mother before me used since back in the '80s happens to be the mommy of a guy who's doing 40 years for molesting his girlfriend's daughter. I've had a post-conviction writ case pending on him since 2004, one with a lawyer on the other side and all, which said mommy has been financing, probably honestly in the belief that her baby boy's innocent. But this was one where we really did have a lot of good evidence from multiple sources, and it was by no means baby boy's only brush with the criminal justice system (27 cases in our county, 12 of which were pending at the time of his conviction). Regardless, she's never going to believe that he's guilty, and while I really do feel bad for her, I, the jury, and various and sundry courts are all quite confident that he is guilty and was fairly convicted, so I think avoidance and our fancy new front-loading washer/dryer set is probably the best way to handle it.
January 05, 2007, 16:36
I have to ask: Is there only one dry cleaner on the isle of Galveston?
January 05, 2007, 17:00
E. Foley
There you are, GG! I was awaiting your insight. No, it's not the only dry cleaners around (and actually we're not even living in Galveston at this point), but I seem to be pretty much cursed with the dry cleaning industry. They either want close to $10 an item, or they lose or abuse my stuff. Alas, this was the one place I'd found that I was really happy with. So I just basically gave up for the time being. The hidden societal costs of child sexual abuse have hit home.
January 06, 2007, 18:29
I always try to make it a point to meet with a defendant and their attorney whenever I feel that I have offered him/her what I feel is a pretty fair deal and its been turned down just to make sure the defendant knows whats what. I think it helps when I am having to address the eventual "ineffective assistance of counsel" writ once the guy gets hammered by a jury.
January 06, 2007, 18:49
That meeting can perhaps best take place in the courtroom when the case is being set for trial. I encourage my prosecutors to make a clear statement on the record, in the presence of the defendant and his attorney, that an offer was extended and rejected and will not be revived. It cuts off later claims of ignorance by the defendant and related ineffective assistance of counsel claims.

And, many times, the defendant takes a time out, huddles up, and accepts the deal.
January 07, 2007, 08:06
Putting a rejected plea offer on the record in front of the defendant, the defense lawyer, AND the judge is the smart thing to do. It lets the trial judge know that you've made a reasonable offer. Particulary if you have a slam dunk, the judge will know that you tried to do the "right thing" before trial and that you're not just shooting ducks on the water. The defense lawyer may have recommended for the defendant to take the deal and it will give him/her some cover as well (and heads off or takes care of an ineffective assistance writ after the defendant gets hammered at trial). Also, our judges will often look at the defendant and not so subtly encourage the defendant to "strongly consider" the deal. Last but not least, if our judges know what was on the table but rejected by the defendant and the court sets punishment, they seem to always hit the defendant at least a little harder (perhaps coincidentally...).
January 09, 2007, 09:36
Jeff Swain
We make sure all of our offers are conveyed by making the defense attorney and defendant sign off on a plea negotiation sheet accepting or rejecting our offer. We then keep the sheet in our file. It is a little extra paperwork, but it's well worth avoiding those ineffective assistance writs (at least on this issue).
January 10, 2007, 12:00
Trey Hill
A long time ago, a defense attorney called me to say, his client had been arrested for indecent exposure & it was a pure accident. Seems he was in Air Force ROTC & had been out flying & when he stopped to play a video game at a convenience store while wearing his flight suit, his reproductive personal parts were exposed, because he'd failed to zip his flight suit completely after going to the restroom. Defense attorney asked for mercy. I told him, I'd think about it, but wanted to meet defendant to try to assess the guy's worthiness.

The meeting went fine. Defedant explained, it was accidental - he was a bachelor, ran out of clean underwear & just didn't wear any undies that day. he went flying & then didn't get his flight suit zipped all the way & hisprivates were inadvertently displayed to adults in the convenience store. The defendant seemed honest and I wondered, why anybody about to enter the Air Force as a commissioned officer & be a pilot would purposefully expose their privates, knowing that such an act would ruin their career. I chalked it up to an inadvertent act & dropped the case.

A few years later, a buddy of mine at the local base told me about one of their new pilots, who got in trouble for driving through the drive-thru at the Burger King with his pants pulled down to his ankles - and that he'd been caught doing it before & been let off the hook. I asked for the name - it was the same damn guy! I was so angry! Needless to say, I got took on that one, but the guy eventually wrecked his military & flying career by his own inability to curb his impulses.

I've met with defendants & their attorneys a few other times, only when large amounts of mercy are granted, but none of them has bitten me in the backside like this one!