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I love/fear you noble all-powerful prosecutor

Lesser known brother Zeus Stolle smiting defense attorneys.

I am a defense attorney. My job is to fight like hell for my clients...even the super naughty ones.

Despite my role, I know that deep down inside I absolutely love good prosecutors. Not just because they make for better sport in courtroom battle. But because most of them are wonderful people who keep it 💯 trying to do actual justice (i.e., keep scummy dudes off my street).

Anyone who doesn't recognize that we need dedicated and talented prosecutors is a fool. And Westendorf & Khalaf pities the fool. Almost all prosecutors are lovely, virtuous, dedicated and talented comes the “but:”


And I feel for these prosecutors because being entrusted with that much power must be maddening! No matter how noble a prosecutor might currently be, Batman (or Harvey Dent or whoever) taught us: "You either die a hero or you live long enough to see yourself become the villain." There's also a saying that absolute power corrupts absolutely. Luckily, most prosecutors will ultimately still do the right thing. Because they're awesome and the best ever.

In theory, the criminal justice system should involve a separation of powers. The legislature writes laws, prosecutors pursue appropriate outcomes within the constraints of those laws, and the judges interpret the laws to ensure justice (by hip checking rogue prosecutors who dare to overreach). Unfortunately, this balance doesn’t truly exist because the General Assembly has rigged the system and ceded all power to the prosecutors.

  • Want to make sure that no sane defendant even thinks about exercising their constitutional right to a jury trial? Here’s a statute saying that juries don’t get sentencing guidelines when deciding whether to lock up a defendant and toss the key in the trash. (Va. Code 19.2-298.01)

  • Want to make sure that every person who wiggles too hard while being cuffed becomes a felon and gets jail time? Here’s a felony statute that'll cage 'em for a minimum of 6 months. (Va. Code 18.2-57)

  • Want to charge 500 counts in a child porn case? Here’s a statute that says you can prosecute for every image. (Va. Code 18.2-374.1)

  • Is there an an inconvenient judge who has the audacity to go below guidelines? To defer findings? To allow someone a second chance because they actually got help for their addiction? Don’t worry, we’ll have that noted in our file come reappointment time.

And while most prosecutors are good and holy and use appropriate discretion, here's an example of how an imbalanced system might fail:

An 18 year old with no criminal record and an otherwise bright future shoplifts from Macy’s and is charged with a felony. The case is assigned to young fresh-out-of-law-school Barron Von Rutherford, IV. Barron, based on his deep wisdom and life experience, decides that this egregious crime must be prosecuted as a felony. Under the current state of the law, that’s the end of the story. No dream team of defense attorneys. No judge. Nobody can stand in young Barron's way.

There are some easy common sense fixes. We could restore judges' ability to actually use their experience and discretion to check snot-nosed prosecutors like Barron by reducing or dismissing charges on conditions. We could get rid of the mandatory minimums since they're nothing more than cheap political stunts. We could get rid of jury sentencing like virtually the entire rest of the country.

I’m not confident that any of those things will happen, so for the time being I’m left hoping that my case gets assigned to one of the normal good prosecutors and not Barron.

So, Barron, what makes a good prosecutor?

  • They’re humble and appreciate the immense power they have to alter the course of people’s lives.

  • They know that not all crimes are equally evil. Accordingly, they don’t prosecute every case to the full extent of the law because not every person needs to be jailed and/or convicted of a felony.

  • They realize that incarceration means locking a person in a cage and depriving them of their family, their job, and their freedoms. They don’t take putting people in cages lightly.

  • They don’t hide the ball and they give defense attorneys full access to the evidence in their file. (Because, why not? If there’s something in there that you don’t want to give me, you’re probably constitutionally required to give it to me.)

  • They don't threaten to bludgeon defendants with additional duplicative counts if they actually have the gall to ask for a trial.

  • They realize that society is often better served by giving a person an opportunity to remain with their family while getting treatment rather than making them hang out with other “bad guys” for months on end.

Barron, I beg of you. Be more like your noble esteemed coworkers who wield their immense power for good. Much like the movie Space Jam, you need to realize that the juicy person I speak of is already inside of you. And Barron, speaking of Space Jam, did you think that Lola Bunny was kind of attractive? I mean sure she was a cartoon bunny with the curves of a woman... No? Yeah that’s gross, me neither.

Barron, until the legislature stops the madness, I’m counting on you to wield your prosecutorial discretion wisely. Remember the words of Uncle Ben: “With great power comes great responsibility.”

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