It has been alleged that the prosecution in the recently concluded drug trafficking case refused to make a plea offer after the defense had filed a motion to suppress. Whether or not that is true, it raises the issue of prosecutors doing this more and more. If this trend keeps happening it will not be long before the prosecution will withdraw all plea offers if the defense demands discovery.
We have raised this issue to the FACDL and received a shrug (figuratively) in reply.
Something needs to be done. Taking depositions and filing motions to suppress are the job of a defense attorney. We have seen in this County many many examples of corruption by police officers. It was not too long ago that some officers were arrested for lying in a drug case to super attorney Lynn Overman (who still remains banned from the PDs office).
And yet, this insidious policy of withdrawing plea offers after motions are filed, or depos taken, continues. It amounts to nothing more than bullying tactics (something we were accused of just last Friday evening). There is only one way to deal with a bully, and that is confront them.
We advise lawyers to make use of the record. When a prosecutor threatens your client with an enhanced plea outside of court, demand to go back into court and put it on the record that the prosecution is punishing your client for you doing your job. Confirm the threats with a letter. Publicize it on this blog. Let the prosecutors explain why they are bullying and punishing your clients for exercising their rights under the Florida and US Constitution. Eventually an appellate court will weigh in on the matter and refer the prosecutor to the Bar.
Now before we start hearing from the sex battery prosecutors, there are of course reasonable exceptions. Plea offers should be withdrawn or enhanced if the victim of a sexual assault is deposed or if a child victim is deposed. But even in those circumstances there should not be a blanket policy. All cases are different. And if attorneys work together in identifying the weak areas of cases, there should be no problem. There are cases we have handled where after diligent defense work reasonable prosecutors agreed there was ample cause to depose the complaining witness, and they did not threaten our clients if we proceeded. And there are cases we have handled where our clients were clearly trying to use us and the discovery process to demean the victim, and the prosecutors responded appropriately.
Those cases remain the exception. The main issue is what we perceive as the bullying tactics of the State Attorneys Office. It starts in County Court where the prosecutors “enhance” plea offers (read: punish defendants) for setting a case for trial. And it continues in felonies where we well know the “policy” of the chief of the narcotics division whose prosecutors who routinely threaten defendants with increased plea offers when their attorneys take depositions.
Enough is enough. We must cast the light of day on these tactics.
We would like to hear from prosecutors and defense attorneys on this issue. (You Judges stay safely out of the way on this one; you have enough on your hands with prosecutors trying to ban children from court rooms to have to deal with a complicated issue like this.)
See You In Court.