There are a nearly ridiculous number of axioms in the law — pithy sayings that convey a fairly complicated idea in very few words. It seems that most of them are either in Latin (res ipsa loquitur!) or deal with something unpleasant (the law is an ass!), or both – (inter arma enim silent leges).
I propose that we add one more — no givesies backsies, no black magic. Sadly, it seems like we may need to remind some of our prosecutors of that old playground rule to help them keep in line.
It is a pretty simple concept, really: when you make a deal, you keep your end of the deal. Once you come to terms and shake on it (or offer diversion and a dismissal of the criminal charges against a defendant, on the record, in open court) you have to do what you said you would do. You can’t welch on the deal. (I know, I know — really, one would ‘welsh‘ on a deal. But I’m a Welshman, dammit, and I’m not going to use the ‘proper’ spelling.)
Image Source: Ian Monk Associates Image Author: Ben Duffy
Well, I have a client — Chopper Charlie, we’ll call him. Nice guy, but he rides a big ol’ Harley that he built himself, and he has tattoos and a nice Willie Nelson-looking ponytail, and generally looks more like an outlaw biker than an investment banker. In other words, he’s a cop magnet.
Sure enough, Officer RoboCop’s sense of propriety, self-restraint, and respect for the constitution were all overpowered by his magnetic attraction to Chopper Charlie’s dangerous hair. A traffic stop for reckless driving led to a search, and the officer found some marijuana and a couple of knives. Chopper Charlie was cuffed and stuffed, and he lawyered up — so far, just a typical day in Sonoma County criminal law.
He was charged with reckless driving, possession of an illegal switchblade knife, and illegal possession of marijuana in a motor vehicle. Of course, the knife wasn’t actually illegal — it was shorter than the CHiP said it was (Ladies? Sound familiar?), so the DA dismissed that charge. And the marijuana wasn’t really illegal either, because of that whole Proposition 215 thing that you may have heard of, so the DA dismissed that charge as well. All that was left was a reckless driving charge, based on the word of a cop who literally couldn’t even use a ruler properly. Time for a graceful exit, thought the DA — time to offer Pre-Trial Diversion.
Pre-Trial diversion is an odd little duck, meant to unruffle society’s feathers without doing permanent harm to the defendant. Sometimes a fundamentally decent person has a really bad day and does something that is out of character and illegal; sometimes a young person with promise and a bright future, or an elderly person in the early stages of mental decline, makes a foolish mistake. In such a case, the DA can offer pre-trial diversion to make everything right. Take a class about the evils of stealing or drugs, m’kay, and do some community service, and the charges are dismissed. Go, and sin no more!
Chopper Charlie, whose “momma didn’t raise no fools” , took that offer of diversion and ran with it. He did every little thing that the DA asked him to do, and fast. Then the DA said “We take it back. You can’t have diversion for reckless driving; that’s against our policy.”
Well, my momma didn’t raise no fools either, and only a blithering idiot would try to pull that kind of crap with my father. No WAY was I going to allow my client to stand there with his hands in his pockets while the prosecution yanked the rug out from under him.
I did what any self-respecting lawyer should do: I researched the law to confirm that my instincts were right, and that the DA didn’t have a leg to stand on when she tried to claw back that offer. Once my instincts were confirmed, I wrote a big, beautiful memo replete with footnotes and exhibits and to the judge and asked him to make the DA follow the law. The DA squawked, of course, and painted a grim picture of the bleak, terrifying future that could await us all if the judge made a precedent by granting my request.
Apparently, a future where the prosecution has to keep its word is frightening to some. Not to me — and not to the judge, either. He dismissed the charges then and there, and said he couldn’t see any way that the DA could justify taking the offer back from Chopper Charlie. My client got his diversion and his dismissal, and I got another win for the good guys — it was a great day.
The only real problem is that the judge said that he didn’t see this case as setting any precedent, and I’d already come up with a cool Latin axiom: Non reacceptavit donum semel datum, et nullum malum magicae — “No give-sies back-sies, and no black magic.”
If you feel like someone’s played some black magic tricks on you, contact me. I’ve been helping clients get a square deal for nearly a decade and there’s nothing I like better than seeing a DA keep a promise, despite their worst intentions.
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