Wednesday, May 26, 2010
TRY IT AND LOSE IT
For those of you who have never been in a courtroom as a trial lawyer, (and yes that includes most of you robed readers) have you ever wondered what really bothers us about Broward?
No it's not the horrible parking, or the sanctimonious Judges who in the past would blatantly discriminate against attorneys from Dade and their clients.
No, the real problem with Broward was the SAO and their "I'd rather try it and lose it" then make the correct call and dismiss the case philosophy.
You must read the Broward JJA blog's post about just this sort of prosecutorial abuse.
The jury found the Defendant not guilty of the main charge of attempted murder "in about 30 seconds.". According to the post, the charge was increased from Agg assault to attempted murder after a prosecutor took a one minute statement from the alleged victim a few years after the case was filed. The increase in charges occurred after the defendant rejected the initial plea offer. This fact pattern begins to mimic the "seismic change in prosecution" threat made to David O Markus in his defense of a doctor in federal court that resulted in a not guilty and a bar complaint against the prosecution by the Judge after, among other things, the prosecution added over one hundred charges after the defense filed a motion to suppress.
Trying a defendant that a prosecutor knows is innocent, or even bringing to trial a person that the prosecutor knows there is not sufficient evidence to justify a conviction is an offense so odious to the American system of justice that prosecutors who engage in such abuse should be referred to the bar for disbarment. The supervisors who approve of such conduct should be disbarred as well.
The other disturbing fact arising from this story is the prosecution's steadfast refusal to waiver from a three year minimum mandatory state prison offer although the defendant had no priors and never fired his weapon. Compare and contrast that to the waiver immediately given to the wife of the the Fort Lauderdale's Chief of Police after she fired a gun at him. In this case, there was never any allegation that the defendant drew his weapon from his holster (and the defendant had a valid CCW permit allowing him to carry his weapon.)
This whole episode stinks, and the worst stink is that nothing will be done about it in the Broward State Attorney's office.
At a minimum the trial prosecutor and his/her supervisor should be referred to the Florida Bar.