Did you ever want to be a DA?

Dear Norm:

Did you ever want to be a DA? Doesn’t part of you wish that you prosecuted criminals rather than defended them?

Sincerely,

Buford T. Justice

Dear Buford:

Once upon a time, I did want to be a DA. As of the second year of law school, I knew that I had little interest in helping companies amass wealth by suing each other over obscure patent rules. Also, part of me doubted that my personality would mesh with the ethos of a big law firm.

I’m sure that my regular readers will find that last part absolutely shocking.

So I knew that I wanted to do criminal law and that I wanted to do jury trials. The only question was whether to be a DA or a defense lawyer. Being a DA seemed easy to conceptualize, so I intentionally sought work with a public defender’s office over the summer to get an idea of what that side looked like.

After two weeks working at the PD’s office, I never thought twice about being a DA. The idea of nailing the “bad guys” may be fun, but in the process I knew I’d have to put a lot of poor people in jail. My “a-ha!” moment came when I realized that many of the sentencing laws that we passed to protect us from people we were scared of were actually being used against people who we were simply mad at. I saw how the Three Strikes law was used against shoplifters or crank dealers who sold to their junkie friends far more often than rapists, kidnappers, armed robbers, or other really “scary” people.

What shocked me most was that most DA’s were never allowed to do what I considered “the right thing” on a case (ie: reducing the charge, offering a lower sentence) without meekly seeking his or her supervisor’s approval. In contrast, my client is ultimately my boss – he or she decides whether to take a deal and whether to testify at trial. I get to make lots of other decisions, but the most important ones belong to my client and my client alone.

Unfortunately, DAs take marching orders from their supervisors, and apparently one does not become a DA supervisor without being a small-minded, wrathful asshole. (Seriously – these are really unpleasant people.) The DAs who are sharp, easy to negotiate with, pleasant, punctual, prepared, who know the law and don’t appear personally offended when I do my job: those guys don’t get promoted.

I like that my decision making process about a case is simpler than a DA’s; I am obligated to advise my clients as to what is in their best interest. Beyond that, the ultimate decision-making power belongs to my client, and he or she is under no obligation to take my advice. So once my client decides what he or she wants to do, my only obligation is to continue to pursue his or her legal interests as best as I am able.

There is a disparity between what we think DA’s should do and what they actually do. In theory, a DA is tasked with weighing all of the mitigating and aggravating factors in a case and then deciding the charges and plea offer based on a concern for overall justice. In reality, DA’s are “just following orders” from supervisors who have no connection with the case and who bear no personal consequence for their decisions. In theory, DA’s are the ones who put the “bad guys” in jail. In reality, they put whoever they can in jail and then call them “bad guys” after. And I found I would rather spend my day trying to keep everyone out of jail than finding vulnerable members of society, calling them “bad” and then putting them in jail.

Remember that minorities are overrepresented in the prison system. And I can tell you from experience that at any given time, our local juvenile hall has between one and three white kids being held for trial. This is one of the end products of marching to a supervisor’s orders. If DA’s are “just following orders” on which cases to pursue, they’re also “just following orders” on which cases to settle or dismiss.

I’ll give you an example.

A few years ago, Meg Whitman’s son was arrested for assaulting a woman in a bar which caused great bodily injury (Ms. Whitman is the former CEO of Ebay, current CEO of Hewlett Packard, and failed gubernatorial candidate). Apparently, Griffith Harsh V (yes, actual name) pushed this woman, causing her to fall and break her ankle. There were several witnesses, one of whom was a bouncer. Now, if I put my “DA hat” on, I can say that this was a solid case. It’s a felony! It’s even a strike! There was a credible witness (and the only witness in the bar who probably wasn’t drunk)! As a prosecutor, I would love to try that case. So why was it “resolved” with an outright dismissal in some private, back-door deal?

If I were a DA, I would hate letting rich, white sociopaths get away with serious societal harm even more than I would hate going after poor people and minorities for petty crimes. It happens all the time. And that is not justice.

And that just wasn’t how I wanted to practice law. So to answer your question, yes I did want to be a DA for a little while. And then I got over it.

As always, I welcome questions and comments from my readers.

Respectfully Submitted,

Norm DeGuerre

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