Why Prosecutors Rarely Lose

Here’s a dirty little secret from the courtroom that will probably upset my friends in the criminal defense bar  – prosecutors rarely lose.  Area DA’s offices all boast conviction rates well above 90%. So why is it? It can’t be that they employ better lawyers, after all most of the assistant district attorneys are barely out of law school.  But there are a few key factors which contribute to this high level of success:

1.  Most defendants are caught “red-handed” – The standard criminal case is usually an easy one:  21 year old  kid sells cocaine to an undercover police officer who has pre-recorded the serial numbers of the “buy” money.  The buy money is then found in the kid’s pocket when he is arrested two minutes later. Or 55 year old housewife  slips two pieces of jewelry in her handbag while shopping at Macy’s.  The event is caught on store cameras and the culprit is arrested inside Macy’s and confesses.  These cases are the bread-and-butter of criminal court and vastly outnumber cases based on circumstantial evidence.

2.  Plea bargains – The ultimate safety valve for a prosecutor. While Mario Puzo’s Don Corleone may have coined the phrase “I’ll make him an offer he can’t refuse” the ability to offer a generous plea bargain when it looks like the case is tanking is a powerful playing card.  In a previous post, I talked about the case of Emel McDowell.  As I was on the way to proving he had served 19 years for a murder he didn’t commit, the Chief of Brooklyn Homicide stepped in and offered him time-served with no parole. Emel jumped at it, as he should have since it guaranteed his freedom.  But it registered as a “W” for the DA since he plead guilty to something.

And in today’s NY Times a tale is told of an even more disturbing case.  In a Federal habeas corpus case, a man wrongfully convicted was about to prove that the DA in charge of his case had withheld evidence of his innocence and engaged in other acts of misconduct.  Once again, the state  agreed to let him out without conceding the merits of the claim before any such evidence could be heard. See, “Facing Misconduct Claims, Brooklyn Prosecutor Agrees to Free Man Held 15 Years.” (here’s the link if you’re interested: Judge Dora Irizarry, who was presiding over the case, had this to say:

“It is indeed beyond disappointing, it is really sad that the district attorney’s office persists in standing firm and saying that it did nothing wrong here,” the judge said. She described the handling of the case by the district attorney’s office as “shameful.

I had a case in Queens many years ago headed for trial.  Two young boys were accused of robbing a man and taking his car. At the start of the case, the State offered 5 years in jail.  We respectfully declined the offer.  The evidence against my client was very weak and he protested his innocence. Both co-counsel and I repeatedly begged for a non-criminal offense to be offered.  No dice.  The case got indicted and moved to trial.  When it got assigned to a trial judge in Supreme Court, the ADA trying the case was a lifer who had been in the office 15 years. The judge said “Be careful, counselors, Harry here has never lost a trial.” Well, of course, every trial lawyer knows the old adage:  “Show me a lawyer who hasn’t lost a case, and I’ll show you a lawyer who hasn’t  tried a case.”  Its during the trials of the tough ones that you are tested.  You also learn so much more from the losses than the wins.  So of course we plugged ahead and right before jury selection, good old Harry offered us a plea to a disorderly conduct and a $50 fine, exactly what we had asked for months earlier.   His record remained intact, and I had to return the trial fee to the client.

3.  They hold all the cards because NY’s discovery laws are terrible

Most folks believe that NY is a liberal state when it comes to the criminal justice system, but in fact it greatly favors prosecutors. Prosecutors don’t have to turn over the majority of the discovery material until right before the trial actually begins.  Often, you don’t see the crucial pre-trial testimony of witnesses until after a jury is selected. You are not given adequate time with the material before being launched into trial.  Most courts engage in voluntary discovery meaning the DA gives you what he thinks you are entitled to; that rarely includes all  the police reports on the case. NY needs to adapt discovery rules more in line with the rest of the country that allow the defense to get access to critical information much sooner. Right now, the DA can prepare their case with all the info at the ready, while the defense can only speculate about what t hey have and not find out the gritty details until the trial is about to start.

4. The Grand Jury system

When most people hear that a Grand Jury is hearing the  evidence, they believe its part of the court  process. In fact, it is an investigating arm of the DA’s Office.  No judge sits in the Grand Jury, it is the DA’s show. The DA decides what evidence to present and what not to present.  Since it is just deciding if there is probable cause to move the case forward, they do not need to hear all of the evidence, just enough.   The tired phrase credited to former Judge Sol Wachtler is that the Grand Jury “could indict a ham sandwich.”  It does what the DA wants it to do.  Having the leverage and power to be able to indict someone for a felony at the drop of a hat is a powerful weapon that is often used to rush defendants to accept more favorable pleas pre-indictment.

5. Most defendants cannot compete with the State’s unlimited assets

Yes times are tough and the State is cash-strapped.  But no criminal defendant is going to be able to match the amount of money and resources the State can still spend on  a case if it wants to.  Trials are expensive, uncertain and incredibly stressful.  Many of those accused who have a viable defense and may even be innocent opt to accept a plea because they cannot afford the cost and risk of a trial.  The State has no such considerations.

So, these are just a few reasons why DAs can tout 95% conviction rates when they run for re-election. What is disturbing is that this advantages may be used to hide misconduct or to force an innocent man to accept a plea bargain in exchange for his freedom.

5 replies on “Why Prosecutors Rarely Lose”

Dear Mr Oscar MY hUsband ERIC V SUDDS INMATE 1212661 IS INCARATED AT THE COFFIELD UNIT for a CRIME he did not commit.its 15 years for him .I found out they have Dropped a case. Butt noone told us at all But know a Houston Sherriff sent my husband a letter staTIng it was dropped to.Mr Bob Wicoff Houston Attorney from Houston Texas sent me a letter stating they found no DNA NOR SEMON or any evidence from my husband BUTT they are going by the WORDS OF TWO WOMEN AND it says that my husband Eric V Sudds inmate 1212661 pled guilty and thats false after the lawyers took all my husband money he was locked up For 15 years for a CRIME HE DID NOT COMMIT.I Also HOW CAN YU GO OFF OF WORDS OF PEOPLE WHEN THERE IS NO EVIDENCE?I AM TRYING TO GET HIM HELP TO COME OUT OF PRISON CAN YOU ALL HELP PLEASE THANK YU AND GOD BLESS 6827020670 DARLENE SUDDS

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