One can never be sure what you’re going to get when you buy a pig in a poke.  Or support a candidate for district attorney.  I supported Cy Vance.  So how’s he doing (with apologies to Ed Koch)?

From the Daily News :

After year in office, Manhattan District Attorney Cy Vance Jr. is coming in for some criticism from defense lawyers.

He’s too tough, they say.

Tougher than his legendary predecessor.

Not that he’s going to disagree.

“Yeah, we are,” Vance said of his office stiffening the terms of plea deals offered to criminal defendants.

Before running for Morgy’s old seat, Cy was a criminal defense lawyer.  Not quite of the trenches, but still he sat at the table furthest from the jury box.  The challenge was that he was painted as a criminal sympathizer who would turn the Manhattan District Attorney’s office into some get-out-of-jail-free zone.  Never having had such an expectation, I have no disappointment that it hasn’t worked out that way.

The problem that some defense lawyers are having is that the office has gotten tougher on plea offers, particularly for misdemeanors.  This makes it far harder to cut a deal, with defendants disinclined to do time because, well, they just don’t want to. 

More significantly, the harder stance on offers makes it a whole lot harder for criminal defense lawyers to make quick money.  It used to be that the volume practitioners, who would talk a good fight up front, take whatever the defendant had in his pocket, and plead them out as fast as they could, had a good gig going.  After all, defendants wouldn’t realize that the $5000 fee only bought them a quick plea, and the deal to probation didn’t seem to be a problem until they realized its implications for immigration or state prison time on their next bust.  They’re easy to lie to.

Harsher plea offers screw up the works.  Suddenly, those low rent fees aren’t sufficient to cover the cost of a real defense, at least for those lawyers who are capable of mounting a real defense.  When defendants are offered jail or prison, rather than the probation that their lawyers anticipated, and refuse to take it, the quick and dirty defense no longer works.  Bummer.

Vance says his main goal is to lower historically low crime rates. He’s going after guns and knife violence – but also zeroing in on the repeat misdemeanor offenders who drive it up.

One approach is to make sure the most serious nonfelonies are properly handled – and to do that, he needs to tackle a massive backlog of more than 10,000 pending cases in the lower courts, he said.

There is a tipping point between being appropriately tough and bogging down the system so badly that it collapses under its own weight.  While Cy’s office may not be particularly lenient, it similarly can’t be so harsh or inflexible that its demand are unfair, improper or unworkable.  For the time being, crime is at such historic lows that he can pretty much get away with anything.  The days of 20,000 indictments are year are over, and they can’t even make 5000 indictments anymore.  That leaves plenty of resources available to screw with petty offenses and “get tough on recidivism” talk.  Should demographics reverse the situation, such plans may turn out unworkable overnight.

In the meantime, the shift from big case focus that characterized Robert Morgenthau’s tenure to misdemeanor recidivism has to be viewed from the perspective of citizen as well as lawyer.  We exist in the city too, and for the most part enjoy the ability to walk down the street without being the victim of crime, small or large.  As lawyers, some may wish to enjoy the pliancy of a prosecutor who will give us that great deal that lets us out of the case in flash, as long as the fees is paid.  As people, we want to be able to make it home with that fee without being held up.

Is Cy Vance too harsh on plea offers?  I can’t say.  My practice isn’t based on volume, and I never enter into a case with the expectation that it will end with a plea.  The answer will ultimately come from the number of trials generated by defendants refusing plea offers, and the ability of the system to accommodate them. 

“We’re indicting many more misdemeanor cases,” said Vance of a push to get the worst cases before felony judges whose dockets are less crowded.

Vance tried giving assistant prosecutors who handled only felonies some lower-level cases to free up younger prosecutors for trial. The result: A 10% drop in the number of cases that are dismissed, including a 58% drop in drunken-driving cases tossed, Vance said.

But fewer dismissals – and a 129% jump in the number of trials – means the backlog is worse.

What will be curious is how the judges will adjust their determinations on what have sadly become routine denials of motions to address the burden of trials down the road.  When the expectation shifts from a denial leading to a plea, instead turning into another trial, the judges might suddenly find it advantageous to start taking motions seriously and tossing the garbage prosecutions that have traditionally been ignored. 

If it turns out that the offers are too harsh, and the judges let any garbage case go, then we’ll end up with another crisis in the courts, and cases dismissed under speedy trial and streets filled with recidivist misdemeanant.  One way or the other, the lack of reasonableness will bear out.

Until then, it’s understandable that a prosecutor hasn’t pleased every defendant or lawyer who has come before one of his assistants.  No doubt some are right to argue that offers are too harsh and unfair.  It’s inevitable. 

The question remains whether Cy still remembers that it’s ultimately not about numbers, but about people.  From his District Attorney perspective, those people include the ones walking around the city who don’t want to be the victims of crime as well as the ones sitting in the hallway of 100 Centre Street.  While he clearly isn’t the self-aggrandizing, deceitful, manipulative, grandstanding prosecutor that New York City endured under Rudy Giuliani’s reign of terror, he’s still got a ways to go to show that he can fill Morgy’s shoes.