I could not begin to estimate how many times in my career as a criminal defense attorney I have had a client tell me about all of the excellent things they have done since they were arrested and charged. I am talking about going to rehab, getting sober, getting a job, becoming active in their church, etc. Thankfully, it is not rare for my clients to take the arrest as a wake-up call to get their lives on track, which of course is what we all would want a person in that situation to do. This proactive behavior demonstrates a genuine desire for positive change, a crucial aspect that often goes unrecognized in the legal process. Just about as frequently, those same clients will expect that all of that good work should lead to a better outcome in their case. I often find myself in the difficult position of explaining that despite their commendable efforts, these alone may not lead to the dismissal of their case.
In this article, I aim to elucidate the dynamics of criminal prosecutions, particularly regarding the influence of personal efforts on case outcomes and why, even though most people would expect that doing good would lead to better outcomes, often the great efforts my clients make while their case is pending does not change the outcome.
I am not using the term “outcome” to mean the final result, although it could mean that. When discussing the impact of my clients’ efforts, we often focus on how these might influence the prosecutor’s strategy and perception of the client.
To make this clearer, I need to back up and explain who has the power in the courtroom. It is a common misconception that the judge holds the most power in a case, but in reality, it is the prosecutor. This comes from our exposure to the concept of judges through media. However, in reality, the most powerful person in the case is the prosecutor. Only the prosecutor has the power to dismiss the case for any reason or no reason at all. This is called “prosecutorial discretion.” As the name implies, this discretion solely rests with the prosecutor. Even if a judge thinks a case is stupid and not worth pursuing, if the prosecutor disagrees, the judge has virtually no way of making the case get dropped.
My clients are often surprised when I explain this to them and point out that pretty much until my client is convicted (which of course we try to avoid), the judge is not the person we need to be worried about. Our attention is on persuading the prosecutor. It is the prosecutor who decides whether the case proceeds, whether or not to offer a non-trial resolution, and what that offer looks like.
So when my clients ask me “Doesn’t it matter that I got clean and sober and have been clean sober longer now than I have ever been” and I tell them “Not really” they of course have a hard time believing that. I inevitably have to explain the difference between the guilt/innocence determination, and the sentencing determination.
The prosecutor’s job is to determine whether or not there is sufficient evidence to prosecute a person for a crime. Although they have prosecutorial discretion, they rarely use it to not prosecute someone that they believe committed a crime. Prosecutors tend to think that good efforts following criminal charges do not erase the past, breaking the law carries consequences.
Getting sober, becoming active in the community, getting gainful employment, etc. are all precious concerns for sentencing. These are called mitigating factors, or reasons for the judge to impose a lighter sentence. It is not that these efforts do not matter at all. They do. A judge likely will find these efforts relevant and even persuasive. The problem is that prosecutors tend to take a very different approach. I have also lost count of how many times I have shared with the prosecutor in a case how well y client has been doing only for the prosecutor to dismiss my words and say something along the lines of “well that certainly will make for good mitigation.” The meaning is clear, “save it for the judge.”
Prosecutors will claim to only be concerned with weaknesses in the state’s case that would affect the state’s chances of prevailing at trial. So when I engage in plea negotiations, the prosecutors want to focus on the merits of the case (i.e. evidence of innocence, problems with the state’s evidence, legal issues, etc.).
I should note though that prosecutors are people and as such, they do get moved by human considerations. It would take a very heartless person to hear how well someone has been doing while a case is pending and not feel worse about sending them to prison, for example, than if the person was screwing up left and right. So it is overly simplistic to say that the “mitigation” does not matter. It is more accurate to say that it matters a lot less than people tend to think.
I tell my clients that if the only reason they are investing in their sobriety is to get a better plea offer, they are not doing it for the right reasons. I do not want my clients to be surprised when the prosecutor’s response to our request for a better plea based on the client’s performance on pretrial release is “I am sure the judge will take that into account at sentencing.”
Understanding these nuances can prepare you for the realities of legal proceedings and help you set realistic expectations for your case. Take Control Beyond Your Charges: Contact us for a personalized consultation where we recognize your efforts and address your unique legal needs. You deserve a lawyer who sees you as more than just a case file – someone who understands your journey and is dedicated to helping you navigate it with empathy and expertise. Take the first step towards reclaiming your narrative and securing your future.
