War over discovery and exculpatory evidence

 Why is it that prosecutors don't want to turn over evidence? Are they scared that if they do, they are going to lose? When I was a prosecutor, I figured that if I showed you how strong my case was, you would be more likely to take my plea offer. And, if there were weaknesses in my case, I needed to understand and acknowledge them. I had several cases I sent back to the detectives for further investigation.

In the end, the mandate of the prosecutor is to DO JUSTICE.

When I worked for the DA of New York, the mandate was taken seriously. That was a dozen years ago, and I don't know how things are today.

In Tennessee - the mandate seems to be to win at all costs. Cases are brought without sufficient evidence. I get the feeling the standard the prosecutors use for measuring a case has nothing to do with proof beyond a reasonable doubt but whether or not they have enough for the much lower probable cause to get through preliminary hearings and grand juries.

I think the problem is that most criminal cases plea out. So, the prosecutors know that if they can get it past preliminary hearings and grand jury, then the defendant is likely, probably 97 or 98 percent of the time, to plea. Those are pretty good odds for the prosecutor.

Frankly, I blame my fellow defense attorneys and myself. We need to do a better job demanding evidence and defending our cases. We need to attack the case more and be willing to take cases to trial. The more we do that, the more likely we are to accomplish a couple of things.

1. Get better results for our clients;
2. Get weak cases dismissed;
3. Win jury trials;
4. Get better plea offers for our clients;
5. Force the prosecutors to take a close look at their cases from the start (this will happen if we take away the almost guaranteed plea deal from them and make them work for their case).

A wise friend once said that the quality of the prosecution in your town or county is a direct reflection of the quality of the defense bar. (Brent Turvey, criminologist). I believe that to be a true statement.

The more we hold their feet to the fire, the more they will demand from their police officers in the field. There will be fewer weak cases - frivolous you might call them, fewer unjust pleas, the case loads will lighten up, and the real cases will go forward. We will have a more proficient defense bar that is willing to take more cases to trial.

Believe me, in many instances, you will get a better result from 12 of your neighbors in a jury trial than you will ever get from the State. And, if the prosecutor knows you are willing to go that far, he will become much more realistic, much quicker.

Results speak for themselves. Over the last year, I took four criminal cases to trial with not guilty verdicts on all of the charged crimes. Subsequently, I have answered ready on three felony cases, one a first degree murder, one a rape and one a coercion case, all of which have been dismissed by the State prior to trial.

If we do this, if we fight for discovery and exculpatory evidence. If we battle the case all the way through, the quality of our criminal justice system will improve for everyone. Trials get the citizens involved, too. The community will feel it has a stake in the system. This is a good result and empowering for all of us. Believe it or not, it is even a good policy for the prosecutors.

Never say die. Put on your best defense.

Bob V
rlvogel@robertvogellaw.com