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Where are your witnesses?

The courtroom opens at 8:30 a.m. for the 9 a.m. criminal docket. The public defenders check in around 8:15 a.m., at which point the state extends plea offers.

Although the PDs play for the other team, their challenges do not go unnoticed. Two PDs are assigned to a courtroom. Each PD may be assigned as many as 15 cases a day. That may seem manageable compared to our 20 to 40 cases; however, when considering the personal attention each client requires, it can be overwhelming.

To minimize the workload, PDs often note our plea offer before witnesses check in, haggle over the offer and try to persuade us to nolle the case. If they can’t convince the state to nolle the case outright, then we wait to see which witnesses check in for the day.

In fashioning an appropriate plea offer, we often consider what the defendant gets and what the state gets by the defendant’s guilty plea. In admitting guilt, the defendant is relieving the state of its burden of proof. The state does not have to put on any evidence, the witnesses do not have to sit in court all morning waiting for their case to be called and the court does not have to sit for an afternoon trial. While on its face it may not appear as if that is relieving the state of much, the burden of proof can be enormous.

In order to incentivize a defendant into pleading guilty, the objective is to offer him something more favorable than what he would get after trial. In other words, if he tries the case and the judge finds him guilty, is he going to get the same or different result than if he pleads guilty? If he believes he’ll get the same result from trying a case rather than pleading it out, he will likely elect to try the case and hope the state cannot meet its burden of proof.

The strength of a plea offer depends on the strength of a case. The strength of a case depends of the strength of the evidence. The strength of the evidence depends on the presence or availability of witnesses. It is the availability and/or presence of essential witnesses that can determine the resolution of the case.

With the overflowing caseloads, PDs (and other defense attorneys alike) often will focus in on state witnesses. Before further discussing the plea offer, their first step is to determine where the state’s witnesses are. If the witnesses are not present and/or will not be present in court, the case cannot go forward and it often results in a nolle.

No case is worth compromising a prosecutor’s credibility. If a witness is not present, then that’s what the defense is told. Credibility is currency in this business. Reputation is gold. It takes many good deeds to build it and, as Benjamin Franklin once said, it only takes one bad one to lose it.

3 comments

  1. So. Very. True.

    I’ve been clerking at the PD’s office in Baltimore City district court while waiting for my bar results. The ASAs we deal with are open and honest regarding witnesses and the lawyers I work with are aware of it and appreciate it.

  2. It’s pitiful how in District Court the question of whether justice is done for a victim comes down to a subpoena sent snail mail to a witness who does NOT have to appear in court unless PERSONALLY served with that subpoena, which is almost NEVER done in District Court due to the volume of cases. On the balance, District Court is a complete joke; justice is rarely ever done there. It more resembles a playground for defendants than anything else.

  3. So many misdemeanor charges are on the borderline of criminal and utterly innocuous (disorderly conduct, to wit: laying in the sidewalk; possession of 0.01 grams of marijuana; assault with a deadly shoe; theft of a sandwich). If the witness isn’t there, it often means, “this is not worth my time.” In which cases justice is clearly done by the nolle prosequi.

    Also very good point about credibility. Nicely written.