I had a hearing set in a robbery. The victim arrived in the courtroom after I left to handle another matter in another courtroom. When I was gone, the public defender approached the victim and asked to interview her, which she did. The investigating officer arrived and noticed the two of them in an interview room. He entered and asked if the public defender had told me that she wanted to interview the victim. She said she hadn’t. The officer told the victim to break off the interview. This caused the officer and the public defender to get into a shouting match. Meanwhile, I was cluelessly handling other matters downstairs.
The public defender ran into me downstairs and was the first to tell me what had happened. She pointed out that it was not illegal for her to interview my victims (even though it is illegal for me to talk to her defendants). Told her I agreed with her on the law. Then I said, “I would just ask you, as a professional courtesy, to let me know when you want to speak to a victim.” She said, “that’s not a courtesy I extend.” We left it at that.
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I was annoyed, of course. I blew off some steam with the investigating officer upstairs. But the interaction resurfaced on the commute home, where all forgotten annoyances resurface. What is the proper response to this?
I could let it go. She’s right on the law. Defense counsel can interview victims. It’s important to get along with people you work with. Even defense counsel. Prosecutors are supposed to hold themselves to a higher ethical standard than defense counsel. In practice, this seems to mean letting them get away with all sorts of underhanded things. The defense bar seems to be so used to this that they get angry when I even suggest that both the prosecution and the defense should be treated equally. I could let her get away with this.
I could retaliate by withholding my own “courtesies.” One thing in particular that popped into my mind was changing my existing practice when it comes to witnesses. Now, I allow defense counsel to interview my witnesses, and even encourage it, as long as I am present. I could no longer do that. Instead, I could always advise them not to. I could explain to the witness that this defense lawyer’s job is to make you look untrustworthy and stop a fact-finder from believing you. I could explain that this lawyer would have consider letting their victimizer out on the street to be a successful result.
I could take the defense interview option off the table by having victims wait to testify in my office. This may inconvenience me in 100 cases and solve the “no courtesy” problem in one case. In other words, it might not be worth it. But it would also solve a related, and even more annoying problem: gamesmanship over witness attendance. How often has a defense lawyer based their decision to take a plea on whether a witness is present? This seems to be a bad way to practice law: justice for only those victims that can come to court. But I digress.
I’m still annoyed, even as I sit here today, long after the fact. Maybe not in the right frame of mind to make a decision. But at least I got to spend the commute thinking about delicious retaliation.