Celebrating 10 years! 2007-2017

Prosecutors and Defense Attorneys, I ...

... would appreciate your feedback/input. The following j cacrimdefense04/08/18
Yes, there is one prosecutor in particular that does it all thirdtierlaw04/08/18
Former prosecutor. Never offered to donate to any charity as shikes04/08/18
never seen that in 20 years. feels wrong. tax deductibl defensivelawyer04/08/18
When I was a pd, DA's offered all sorts of money grabs in ex trollfeeder04/09/18
Does it count as a conviction? Would that matter to the Clie physicssezno04/09/18
That is the advantage of making the donation, the case just thirdtierlaw04/09/18
a donation in exchange for dismissal seems like extortion. lilgub04/09/18
NEW YORK STATE BAR ASSOCIATION Committee on Professional Et defensivelawyer04/09/18
This is a curious statement: " to a not-for-profit organiza lilgub04/09/18
It sounds like extortion if there’s no probable cause to s physicssezno04/09/18
cacrimdefense (Apr 8, 2018 - 4:12 pm)

... would appreciate your feedback/input.

The following just happened at my least favorite courthouse in SoCal:

My guy is charged w/ a single misd. count of violating a restraining order (No, this is not the defendant I described a couple months ago who can't stop pleading with his GF/baby mama to reconcile w/ him). He was accused of the violation by a social worker he swears hates him.

It's a pretty good case. It's he said, she said, and the SW has ready given two diff. stories, whereas my guy has always said the same thing.

The only issue is the defendant's geographic location. He's not accused of violating the RO in any other way, and two witnesses are prepared to testify to his version of events.

Anyway, we're scheduled to commence trial soon, so the DDA called me on Friday and offered the following deal: The defendant makes a donation to the county victim restitution fund in the amount of $---.00, and the case will be dismissed.

What happened here is pretty clear to me. As the trial date was getting close, a DDA finally took a look at the police reports and realized his evid. is weak. He probably spoke to the SW, considered her conflicting accounts of what transpired, and concluded that he can't prove the charge beyond a reas. doubt. However, instead of simply dismissing the case, he dangles an offer in his employer's best interests that is also appealing to me (financially) and my client (guarantee he won't be convicted).

My question: Have any of you folks ever made or received a similar offer in a crim. case (money paid to county fund in exchange for a dismissal)?

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thirdtierlaw (Apr 8, 2018 - 4:46 pm)

Yes, there is one prosecutor in particular that does it all the time. I hate it with a passion.

It's always cases like the one you described where it should just be dismissed outright. But how do you counsel your client, who is paying you by the hour, in any other way than to take the deal? It'll cost the client much more to pay you for the trial where there is a chance they'll be found guilty.

It's practically extortion. But my clients always play ball.

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shikes (Apr 8, 2018 - 6:46 pm)

Former prosecutor. Never offered to donate to any charity as thats just weird, but definitely offered fines/costs only on trash cases I didn't think I could win. This is common.

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defensivelawyer (Apr 8, 2018 - 11:44 pm)

never seen that in 20 years. feels wrong.

tax deductible?

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trollfeeder (Apr 9, 2018 - 4:45 am)

When I was a pd, DA's offered all sorts of money grabs in exchange for a dismissal. It is a dick move when it is a nothing case, but objectively, your client should take it.

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physicssezno (Apr 9, 2018 - 9:27 am)

Does it count as a conviction? Would that matter to the Client? It’s def a raw deal.

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thirdtierlaw (Apr 9, 2018 - 10:33 am)

That is the advantage of making the donation, the case just goes away, zero risk of a conviction.

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lilgub (Apr 9, 2018 - 9:43 am)

a donation in exchange for dismissal seems like extortion. If this were part of a plea, it would not be.

For you, does it take money out of your pocket (for trial) and put it into the prosecutor's (by way of the fund - it benefits him in some way).

Seems really scummy.

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defensivelawyer (Apr 9, 2018 - 10:45 am)

NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics

Opinion #770 - 11/12/2003

Topic: Plea bargains; donations as part of agreed sentence





Digest: If probable cause supports a charge, and if all terms of the sentence are legal, a prosecutor may agree to a plea bargain in which the defendant is required to make a donation: (1) to the statutory program known as STOP-DWI, as long as the district attorney is not also "coordinator" of the county's STOP-DWI program; or (2) to a not-for-profit organization, as long as the prosecutors handling or supervising the case do not have a "personal interest" in the organization that reasonably may affect their judgment; they do not know that any lawyer in the district attorney's office has such an interest; and the donation to the organization does not create an appearance of impropriety. A prosecutor may agree that such donations may be made before the plea is entered, and in exchange for a dismissal of, or an agreement not to bring, charges. Under no circumstances may a prosecutor conceal the terms of the plea bargain from the sentencing court.

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lilgub (Apr 9, 2018 - 1:05 pm)

This is a curious statement: " to a not-for-profit organization, as long as the prosecutors handling or supervising the case do not have a "personal interest" in the organization that reasonably may affect their judgment; they do not know that any lawyer in the district attorney's office has such an interest; and the donation to the organization does not create an appearance of impropriety."

So:

1) Prosecutor doesn't have a personal interest that would reasonably affect their judgment; and
2) Prosecutor is unaware of a lawyer in his office that has such an interest; and
3) the donation does not create the appearance (but perhaps not the actual existence) of impropriety.

Or, we can just admit it's a racket.

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physicssezno (Apr 9, 2018 - 1:21 pm)

It sounds like extortion if there’s no probable cause to support the charge. Then it’s wrong to seek anything other than to dismiss the case.

Otherwise, if there is PC, it sounds like a plea to a fine and no conviction on ones record. Seems like another day in the life.

It also sounds like the sunk cost fallacy at work combined w a prosecutor seeking convictions more than justice.

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