Bad luck. My client is middle-aged. He has children and runs his own business. He is a respected member of our community. And he has never been arrested before.
He is pulled over for speeding at two am on New Year’s morning and charged with drinking-and-driving. Two hours earlier, he would have been eligible for a D.C. diversion program. A fine. A payment to the crime compensation fund. A class or two. No new arrests. And six months later, he could have gotten out of it, chastened, without a conviction on his record. Instead, he is facing trial in a couple of months.
“Two hours,” I tell the prosecutor. I put a little incredulity into my voice because I am thinking she might agree with me on the unfairness of it all.
“It’s our new policy,” she says. “Effective January 1.”
“Come on,” I say. “I know this is discretionary. Couldn’t you just sliiiiip this one through?” I squint my eyes for effect. To make things seem smaller.
“It’s not discretionary,” she says. “It’s our new policy.”
“But it’s only two hours. And you do have the discretion. I know you do. And this guy would be the perfect candidate for an exception.” I go through the litany of my client’s strengths.
“I don’t care if he’s the President,” she says. “My hands are tied. The breathalyzer score is too high.”
“Another client of mine was arrested with a higher breath test. And I got him into the program. You don’t think that’s unfair?”
“Unfair for whom? Your other client?”
“No. Unfair for this client.”
“I don’t know who your other client is. But I’m thinking he was arrested before January 1.” She’s got me there.
I try another tack: “What about disparate treatment of like-situated people?”
“It’s not disparate treatment. One was arrested ON January 1, and the other was arrested BEFORE January 1.”
She thinks about this. “Two hours into January 1, actually,” she adds. For a moment I think she might be warming to the idea. At least she sees the irony.
But no. “Can’t help you.” She’s moving on. Maybe I offended her with the disparate treatment thing. People don’t like to think that they are being unreasonable or unfair. People don’t like to think they are being discriminatory.
“If not diversion, how about a deferred sentencing agreement?” We’re at the end of the hall. She’s about to step into the women’s room.
“Policy changed on that, too.”
“January 1?”
“January 1. Scores are too high. Can’t help you. You have my offer.”
I am still stewing about this when I pick up my wife. She’s my sounding board. Maybe she will agree with me on this.
I try all of my other arguments. She is unconvinced. So I dig a little further. “What about disparate treatment of like-situated people?”
She looks at me. “Prosecutorial discretion,” she says. “Forget about it.”
Nobody seems to like this disparate treatment thing. “It’s NOT a discretionary program. The prosecutor says she has no discretion.”
“It’s still a discretionary program. A cop pulls you over. Sometimes he arrests you. Sometimes he doesn’t.”
“Two hours.” I’m back at the beginning. “You don’t think that’s unfair?”
She thinks about it for a second. “You know,” she says. “If I had ever gone into criminal law, I think I would have been a prosecutor.”
I know this. She has told me this before.
{ 3 comments… read them below or add one }
Jamison,
The funny thing about this article is that my wife and I are the same, only opposite. She is my constant reminder of “the other side” (yours). I think we are lucky to have such counter-balances to keep us (fairly) level-headed. Or at least sane. Or at least only temporarily insane.
DAC
Mr. Confidential: Since most criminal law blogs are done by criminal defense lawyers, it is great that you do your blog from the prosecutor’s perspective. And in a very balanced way, too, I should add. Thank you for offering that perspective on this site.
I would also suggest to other readers that they check out D.A. Confidential’s site at http://daconfidential.blogspot.com/. It’s also on my blogroll.
That was a very fun article to read. The way you stated everything made it interesting, and a must read article. That said, I think it’s completely bad luck that you’re client got pulled over 2 hours into the new effect of the law. Your argument stated the disparate treatment, which is a very good approach at trying to settle this case. Thanks for posting this up.