Of all the decisions that have been made thus far by the Lykos/Leitner Administration, probably the only one that I've truly understood thus far was the decision not to renew my contract to work for her. I mean, she and I are very much equal in our mutual dislike of each other, and I certainly wouldn't have had her working for me had the shoe been on the other foot. So, for those who feel that I've been "whining" on the blog about her decisions regarding the Office, please know that it isn't my departure from the Office that I'm griping about.
It's the departure of morale and, by extension, prosecutorial discretion that I mourn.
I'm sure that some of you are now thinking "why do you care if the prosecutor's have good morale or not? You're a defense attorney now."
It's a valid question, and it has two answers:
#1 - that Office is still staffed by excellent prosecutors, investigators, and secretaries that I worked with and I still care very much about them as my friends; and (more importantly)
#2 - the loss of prosecutorial discretion is going to affect every aspect of criminal cases and how they are handled from January 1, 2009 through December 31, 2012.
Say what you want to about Chuck Rosenthal (and God knows we all have), but one thing you can give him credit for was that he let the prosecutors be prosecutors. He didn't micro-manage or second guess the decisions of his staff on a day-to-day basis. He also wasn't scared to stand by unpopular decisions if he felt that they were the right thing to do.
Unfortunately, there were other things wrong with Chuck that led to his downfall, and the downfall of the Office, as a whole. But under his reign, prosecutors didn't have to sweat over the safety of their jobs if they dared to displease him. I should know. I was never one of his favorites.
But this article isn't about the past. It's about the future.
The future under Lykos is bleak. Her firings, demotions, and transfers of prosecutors who were less than enthusiastic about her campaign have sent out a clear message about what her Administration stands for.
That message is that when it comes to job security, one's performance or devotion to the job comes in a distant second to loyalty to Lykos, herself.
Her firings of the secretaries three days before Christmas also show that she's got no qualms about what she's doing to people or their families. In short, she's already fostered an atmosphere of Fear in the Office, and she hasn't even taken the reins yet.
My friend, Mark Bennett and Miami Defense Attorney and blogger Brian Tannebaum have suggested some civil disobedience to Lykos by not showing up at her mandatory Coronation on Thursday. I doubt that the prosecutor who knows what's good for him will fail to attend, however. There would, without a doubt, be retaliation on her part.
So, what does that have to do with a Prosecutor's Discretion?
A Prosecutor's Discretion gives them the ability to do what they feel is right:
-If a case can't be proven, they can rely on their own training and experience to dismiss it.
-If a Defendant is charged with a crime and the punishment range is disproportionate to what a fair resolution is, they can make a reduction.
-If they have the opportunity to show compassion or just make the right call, in general, they have the power to do so.
-They can also try cases the way they want to. (NOTE: Given the fact that even the Misdemeanor Baby Prosecutors who passed the Bar Exam in November will have more prosecutorial trial experience than Lykos does, that's probably a good thing.)
But under the atmosphere that Lykos has fostered, will prosecutors still be so willing to exercise their discretion and feel like their boss will have their backs even if she disagrees with them? Will public perception matter more to her than doing the right thing?
Or will they risk being unceremoniously canned the second they do something she would not approve of? If so, I can guarantee you that Prosecutorial Discretion just went out the window.
What will be the tangible effects the Judges, the Defense Bar, and everyone else involved will have to suffer through?
One word: Backlog.
When prosecutors won't be free to move within the guidelines for a just result, the only remedy that the Defense will have is to set cases for trial.
Lots and lots of cases set for trial.
Trials take time, and most courts can't try more than two of them (if that many) in a week. A backlog means that cases will take lengthy amounts of time to even get a trial setting, and we all know the old saying about Justice delayed being Justice denied . . .
Mark Bennett said that the Lykos Administration was already appealing to the Anarchist in him. I have a strange feeling that he ain't seen nothing yet.