Here is what we think:
Do not give into this “policy”. If a prosecutor insists on threatening your client, request that they put it in writing. If they refuse, ask why they will not commit to their policy in writing.
Ask them what they are afraid of? If they refuse to put the threat in writing then you should confirm the conversation in writing and file a copy with the court. Of course the prosecutor would not put something like that in writing, because they know, and we know, such a policy is unethical and would be grounds for discipline from the Bar.
Lets game play this out a little bit.
A prosecutor that threatens not to make any plea offer if a defendant elects his or her rights under the Florida Rules Of Criminal Procedure to seek a bond in a life felony case, is basically abandoning their responsibility to seek justice. If a client has an Arthur Hearing would the prosecutor continue to prosecute the defendant if they later learned the defendant was innocent? How about the requirement to seek justice and proper punishment? Is it ethical to seek life in prison for an individual who otherwise should be placed on probation, house arrest, or receive youthful offender sanctions based on the specific facts of the case?
A prosecutor who threatens you with a "policy" is stating that they will no longer evaluate a case based on the specific facts. Does that seem right? A prosecutor would never publicly admit to abandoning this responsibility, and therefore like any bully, like any individual who makes illegal threats, the way to handle the threat is to cast the light of truth on the situation. And like any bully, publicity is the last thing they want.
Can you imagine Kathy Fernandez Rundle standing on the courthouse steps and proudly announcing her office’s new policy of seeking the maximum for any defendant who has the audacity to defend themselves and invoke rights guaranteed by the Florida and Federal Constitution?
If we as defense attorneys let them get away with this, what is next?
A policy to seek the maximum sentence for any defendant who does not confess?
A policy to seek the maximum sentence for any defendant who takes deposition?
Sy Gaer already has more than enough business.
Make no mistake that such a policy is a direct attack on the criminal defense bar, the Constitution, the courts, and our clients. We cannot and shall not allow prosecutorial bullies to scare any defendant into forsaking any right they are guaranteed.
If we do, we as defense attorneys bear the shame, because we know better.
A prosecutor's case load is too heavy? Tell it someone who cares. We don’t ask prosecutors to offer lesser sentences because we’re too busy. A responsible lawyer handles their own problems and does not let their problems effect any particular case.
It takes a lot of time to prepare for an Arthur Hearing?
Do your job.
As citizens of Florida, we depend on good and honest prosecutors to do their job and prosecute those individuals who deserve it. A person who kills someone or commits a sexual assault may well deserve to spend the rest of their life in prison. A 17 year old kid with no priors driving a car occupied by someone who has just committed an armed robbery may well deserve youthful offender sanctions. And any prosecutor who would have the vicious and evil intent to punish him with a life in prison sentence because his attorney requested an Arthur Hearing deserves to be disbarred.
David O Markus, who runs the Federal Blog is president of the FACDL Miami chapter. He has been receiving emails on this issue. If you are currently having a problem, you should contact him. But take our suggestion and see if the prosecutor who threatens your client will put it in writing. And if they refuse to do it, write them a letter confirming their “policy” and send a copy to Kathy Rundle Fernandez and she how she responds.
We have nothing to fear from this except our own temerity and inaction.
Our system of adversarial justice depends upon both sides aggressively advancing their cause. The system stops working when one side gives in prematurely. The only thing that can come out of a well contested Arthur Hearing is a well developed set of facts for the rest of the case to proceed on. What's wrong with that?
Tragedies happen- and innocent people are convicted- when defense attorneys pre-judge a case and abandon their job to challenge the evidence aggressively, ethically, and legally.
See You In Court, and at Arthur Hearings in any and every case where our client is entitled to one.