Tuesday, January 28, 2014

Severance, Ugh!

Severed. It was the court's ruling. There are four defendants, all charged with various acts in a string of coordinated crimes. Two defendants asked to be tried separately from the two worst defendants because the more violent acts the worst defendants committed had the potential to prejudice a jury against the two not as violent defendants.

The court agreed. So as I gear up for this trial next week, my witness list tops 111 witnesses right now. I will be flying witnesses in from California, Florida, New Jersey, and Kansas (yes, Kansas!). The court  has already issued four material witness warrants to arrest witnesses because they have not shown up.

The court, two defense attorneys, and myself have blocked off all of February for the trial. And now, due to the court's severance ruling, I get to do it all over again in April. I'm really looking forward to May.

On a different note, I was thinking about tweeting updates from the trial daily, such as how many jurors were selected, types of evidence. There are three concerns: 1) Is it proper? I really don't know. Everything would probably be public so it seems okay. 2) Will I have time? Probably not, but I can get 140 characters out if any of you are interested. 3) Should I?

What do you think?

Tuesday, January 21, 2014

Greener Pastures

Lawyers today are different than ten or more years ago. It's a product of my generation, the economy, and the evolving legal profession. It is rare for a new attorney to enter a job and retire from the same one in today's world. We leave for more money, different experiences, to relocate cities, or simply leave the profession together. Gone are the days (mostly) where an associate will work his way up to be a senior associate, junior partner, and then senior partner at the same firm. It's even rarer for an ADA today to retire from the same office they began in. In a good economy, ADAs leave for private sector jobs that will pay more money. In poor economies, the turnover is infrequent but the number of lawyers looking for other jobs remains the same.

I constantly hear the complaint from older attorneys. They complain that attorneys my age don't have the same work ethic, loyalty, and that we expect things to be handed to us. Maybe some of that is true, but it is also a fact that my generation faces deep law school debt and an expensive world.

No matter when a person leaves the DA's office, it is always difficult to see them go. We grew up together in the office, in the trenches. We started making $40,000 a year with more than six figures in debt together, spending nights and weekends trying to learn what we were doing, believing we were fighting for the common good. We laughed at the ridiculous stories that came through the door and cried at the inconceivable harm humans do to each other.

Then, the person that grew into your friend takes another job. The reasons vary--more money, personality clash with supervision, an inability to separate the job from home life--but the result is the same. One more friend walks out the door. Their job is quickly filled by someone else as their files are dispersed to other ADAs.

The ADA that left always misses the office at some point and people that make a career as an ADA point to this to prove we have the best job in the legal world.

I have been on both sides of this. I have left a job I loved with co-workers I cared deeply about and I have seen some great friends leave. It is not easy on either side. Some people take an employee's resignation as a personal attack on the employer. It rarely is. It is just a fact of life. People move on from one place to another in the hopes that the next job will provide what the last job cannot. I am guilty of looking back with fond hindsight of prior jobs, such as a concessionaire at a movie theater or produce clerk at a supermarket. The truth is the people made those jobs memorable, not the work. It's the same in any business. If you are surrounded by amazing people, the job will seem better. Few miss the work. Most miss the people. Being an ADA is a terrific job because of the people inside the building are all working towards the same goals. Once you leave, it's difficult to establish that sense of purpose, that sense of camaraderie, again.

I said goodbye to a great friend and co-worker this week and wish her well. It never gets easier.

Friday, January 10, 2014

The Brady Dilemma

Brady evidence is any evidence that shows the accused person did not commit the crime. It can be such evidence as an eyewitness identifying someone other than the accused as the perpetrator or even that a testifying witness received a plea deal to testify that would affect their credibility.

The biggest requirement is that when the prosecutor finds out that Brady evidence exists, it must be turned over immediately to the defendant. Seems simple enough, right?

But what about this scenario?

A witness comes forward in a murder case. She is terrified to be in your office and makes that known many times. She lives next door to where the murder occurred, which is well known gang country. She looked out her front window and watched an argument between the defendant and victim, and then saw the defendant shoot the unarmed victim. She is willing to testify, but demands that her identity not be known until the trial so that she has time to move. She knows that once her identity is known, she will be a gang target.

Sounds reasonable, right? But what if she also said that she saw the victim threaten the defendant with a gun thirty minutes before the murder. She still says that the victim did not have a gun when the defendant killed him, but he had one and threatened the defendant earlier that day.

This is Brady evidence because it will aid the defendant in a self-defense claim. As stated earlier, we are required to turn Brady evidence over immediately. But doing that in this case will jeopardize the witness' life even though she has evidence that might help the defendant.

What is a prosecutor to do? Turning over a redacted statement without identifying information won't work because the defendant needs the opportunity to investigate and speak with the witness.
Turn it over immediately? Delay until trial?

These are the type of hard choices you must face as a prosecutor. We must balance a person's constitutional rights with that of the safety of the community every day.

If there is a credible threat, the answer is to turn the statement and the fear of retaliation over to the judge for an in camera (judge reviews it without either party present) review immediately. Then, the judge needs to decide the appropriate course of action. This will usually involve turning the material over with at least the witness' name to the defense attorney, but the judge might delay it until the witness can move or be moved safely. If the threat can be verified, we would usually help the witness move to a safe location, but still make the witness available to the defense attorney.

What do you think is appropriate?