District Attorney Carol Chambers, whose office handles the prosecutions in Arapahoe, Douglas, Elbert and Lincoln counties, Colorado, has a point.
“It is hard to find performance standards by which to measure trial attorneys.”It could require supervision. Thought, Effort. Whew. That could mean a lot of work. What if there was an easier way? Chambers thinks she’s come up with one.
Chambers has created an unusual incentive for her felony prosecutors, paying them bonuses if they achieve a predetermined standard for conviction rates at trial.
The threshold for an assistant district attorney to earn the average $1,100 reward: Participate in at least five trials during the year, with 70 percent of them ending in a felony conviction. Plea bargains or mistrials don’t count.
It’s not exactly novel for a district attorney to create “incentives” for their prosecutors. Harris County, Texas, District Attorney Pat Lycos Lykos has the Trial Dawg Award, among others, to motivate prosecutors to get convictions at trial. But Chambers has taken it to a whole new level by not merely using the Joy of Conviction as a motivator, but cold, hard cash.
Is this a problem?
Denver District Attorney Mitch Morrissey said he’s seen plenty of cases where hard work didn’t pay off in the jury box and added that he’d be concerned about unintended consequences of a rule like Chambers’.
“I would worry that if something is tied to a conviction rate, a deputy wouldn’t try a hard case that required a trial. We want people trying cases that need to be tried,” Morrissey said. “If they don’t win, they don’t win.”
After all, since all prosecutors are inherently honest and would do nothing to undermine the rights of defendants or to win at all costs, they would never deep six the Brady or help a witness to tailor testimony to be more effective and fill that nasty gap in proof.
And what of the prosecutor who’s one conviction shy of making the payment on his new Denali? He would never up the ante on a plea offer to force a slam dunk case to trial. That would be wrong. So what if the exercise of discretion would easily conceal his underlying motives, or worse still, allow him to rationalize away transitory concerns that the defendant needs that extra few years in prison.
After all, if defendants are motivated to break the law by putting their financial self-interest ahead of society, why should prosecutors be allowed to do the same? They’re the good guys, and don’t the good guys get to make some extra cash every once in a while?
Chambers, of course, has an answer to the cynics who don’t appreciate her nuanced understanding of Abraham Maslow:
Chambers said she carefully set the standard low enough so that prosecutors aren’t cherry-picking easy cases from their 150 to 175 cases a year and high enough to demonstrate that they have certain trial skills and good judgment. In Chambers’ view, most, if not all, of her assistants are likely to have at least five cases a year where justice can’t be achieved through a plea agreement and that end up at trial.
Rarely does one get a prosecutor to admit that she”carefully set the standard low enough” to satisfy her assistants financial desires, though my guess is that she didn’t intend her explanation to come off this way. She offers no empirical basis for her five trials/convictions per year, and indeed, it would seem impossible to reach such a conclusion considering that every case, every prosecution, every defendant, is supposed to be given individualized consideration.
That Chambers jumps to some gut reaction, that these are “low expectations” that defy the exercise of sound discretion without regard to the merit of any particular case, is revealing. It’s just so much easier to come up with a Menckenian solution than a correct solution.
There is absolutely nothing wrong with a district attorney seeking a viable method of assessing the quality of the work performed by her assistants. But the standard should never be the number of trials or the number of convictions, as these are not the metric by which prosecutors are supposed to perform. If the duty is to do justice, then the standard by which Chambers seeks to judge her prosecutors is in conflict with their (and her) duty.
But it does make things really, really easy. And it does put cash in prosecutors pockets. And isn’t that really what justice is all about?
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I’m your Harris County spellcheck. It is Pat Lykos and (previous post) Robert Fickman. More important, Texas, Nevada, and other states have adopted lengthy and comprehensive performance measures for defense counsel. It would seem that prosecutors could do the same.
I changed the Fickman misspelling, dammit. And now I’ll change Lykos. Geez, you’re tough to please.
I’m slow today and just realized what you wrote:
So how many trial convictions do they need to pass muster?
I think defense lawyers need about 50. I’m almost there.
An assistant DA has participated in five trials so far this year and has won four of them. 70 percent of five is 3.5, so four wins of the five minimum earns a bonus reward. Lose the next case and our ADA with a new baby due next month has won four out of six, which is 67% — whoops, there goes the reward money.
Smart defense lawyers – those devils – might pay attention and know the bonus situation. Time to be a bit more stubborn in plea negotiations.
Like so many quantification methods for using a simple calculation to replace managerial judgment of complex social and organizational situations, the result soon becomes farcically antagonistic to the organizations purpose.