David Giacalone of f/k/a wondered whether the Legislature’s effort, again, to undo a New York State Police ban on having troopers handle their own tickets in local traffic courts was a good thing or a bad thing, as Governor David Paterson considers vetoing the bill, just as Governor Pataki did before. So he asked me what I thought.
As explained in this Schenectady Daily Gazette editorial,
For the second time in two years, the state Legislature has passed a bill that would undo the state police ban on having troopers appear in local courts and plea-bargain traffic tickets there.
The ban, adopted in 2006, was a policy change, and a wise one. Before that, troopers who wrote the tickets regularly appeared in local traffic court, acting not only as witnesses but as prosecutors, making deals with speeders to plead guilty in return for a reduced charge like parking on pavement.
The editorial urged Paterson to veto the bill for two reasons. The first was financial, as the cost of having troopers in local courts, paid for three hours of overtime even if they were only there for minutes, was exorbitant.
But it wasn’t just money, it was also the ethics of having the person who issued the citation also prosecute the case. That gives, as state police counsel Glenn Valle put it, “an inherent outward appearance of unfairness.” For one thing, it assumes the arrest is good and the trooper acted properly, where an independent prosecutor might have doubts in some cases. It also raises the possibility that the motorist might not get a fair shake — i.e. not get a plea-bargain deal, or the same deal that another would have gotten — if the trooper doesn’t like him for some reason, perhaps if he didn’t show enough deference at the traffic stop. There’s a reason that police and prosecutors work for different offices and have different roles and responsibilities. Here they are blurred.
This is not only true, but a very frank assessment of the dynamics involved in such discretionary decision-making. Plus, no one likes to negotiate with a person who has a gun on his hip.
Clearly, the best of all worlds requires that a fair-minded prosecutor, who will make a detached review of the case and fashion a plea offer (or perhaps even dismissal?) be present. But this is a bit Utopian.
While the ban served the interest of the state — and justice — it has made life difficult for localities, especially small, rural counties with small district attorney staffs. Some have had to use their scarce resources to hire prosecutors or designate lawyers to handle traffic violations — which many small localities rely on for a significant amount of their revenue.
The dirty little secret of many of these local-yokel courts is two-fold. First, they prosecutors appear only occasionally, when they have nothing better to do and happen to be available, or they assign no prosecutor at all. The result of the absent prosecutor is that the judge takes on the role of representing the state. Imagine the prospect of the judge, the person who we turn to in expectation of justice, is also the prosecutor. Guess who is going to win that battle?
The second dirty little secret is that many of these local-yokel judges are not lawyers, leaving no one in the room with the slightest clue how due process is achieved, or how laws are to be applied. Non-lawyer judges have proven to be a competency and ethical nightmare for the New York court system, but the politicians lack the will to put an end to this anachronistic system that has caused so much grief.
Given the choice between a trooper playing prosecutor and the judge doing the dirty deed, I would pick the trooper. Given the choice between a good system and the lesser of two very bad evils, I would pick a prosecutor to be the prosecutor. So why doesn’t the Legislature put its effort into requiring that local courts have prosecutors handle the prosecution, rather than troopers or, worse yet, judges? And why are the choices always between bad and worse?
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Thank you for responding so thoroughly to my question, Scott.
You can find the text of the bill ( A10471) here—
An article in today’s NYLJ notes that Gov. Spitzer also vetoed similar legislation in 2007.
I just read the justification for the Bill presented in the Bill Summary, and find it rather underwhelming.
As long as we’re raising dirty little secrets involving traffic court, mine is the fact that some prosecutors will only plea bargain with attorneys, leaving pro se defendants with no ability to plea to a lesser charge.
Clearly, I was not thorough enough. Great point about prosecutors refusing to negotiate with pro se defendants. Thanks for filling my gaps.
1. Towns, villages and cities get very little revenue from traffic court. Most of the revenue goes to the state.
2. Why ban just Troopers? I’ve negotiated with plenty of deputy sheriffs and local cops too.
3. “A fair minded prosecutor” ?? Not sure what you mean by that. In my experience the fairness of Troopers negotiating is little different from the prosecutors. Roughly the same percentage of each are fair. And I know prosecutors who won’t negotiate with unrepresented defendants. Is that fair? I’ve never heard of a Trooper with that position.
4. Plenty of non-lawyer local judges are very good. And there are also some lawyer judges who aren’t so good. I don’t know why people keep harping on this point. I hear horror stories all the time about the TVB in New York City, and those judges are all lawyers.
5. I rarely see judges taking on the role of the state, and plenty of them seem to favor the police whether there’s a prosecutor there or not.
6. I handled many cases with Troopers plea bargaining their own tickets before this was banned. The system worked just as well as it does now, and in some ways was better then.
I hesitate to suggest why your experience differs from the vast majority of other lawyers and litigants in New York, but based on your comments, it would seem that you have extremely low expectations and standards. Perhaps, rather than be satsified with a system that aspires to mediocrity, you should push for improvement.
Hello, again, Scott. While brewing my first cup of coffee today, I remembered this amazing example of a lawyer putting the client’s interests last:
In a small village court in Albany County, NY, about 15 years ago, a trooper failed to show up for trial on a speeding ticket. When the judge asked the defendant if he wanted to re-schedule or to win by default, I overheard the lawyer say to his client, “Let’s reschedule. I have to appear here all the time, and I don’t want the troopers angry with me if we get this case dismissed.” True story. Despite having made the mistake of hiring that attorney, the client was not stupid enough to take the lawyer’s advice.
Hi David. I’ve already finished off the last of my pot of 15 cups.
I would love to tell you that this is shocking, but you already know that wouldn’t be true. I’ve seen/heard variations for as long as I’ve practiced law.
When lawyers are unfairly attacked by those who see us as the greatest threat to mankind since homosexuality, I want to spring to the defense of the bar. And then I think of lawyers like this, and remember how ambivalent I am about the whole thing. I wish I could be proud to be a member of an honorable profession. I really do.
Sigh. All I can add is that I decided long ago to be proud of and try to emulate those who uphold the profession’s highest standards (rather than those who so loudly claim to do so).
Amen.
Without an officer present, how will the court prove a photo of a speeder was the driver? Who will prove offender guilty in the court? A picture of a licence plate will never prove a person was speeding.
The trooper would appear for the trial as a witness, as would be necessary in any event. The trooper would not appear, however, in the place of a prosecutor.
Why do lawyers think that they are the only one who is qualified to be a Judge in simple minor matters. Its not brain surgeon work.
No reason to have a lawyer. After all, a guy like you could just make it up as you go along. I’m sure whatever seems like a good idea to you will be just fine with the everybody else. Who needs all those stupid things like due process and equal protection when you’ve got spunk!