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Kenneth F. Eichner

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Prosecutors Get Money for Criminal Convictions Near Denver

Posted: 03/28/11 05:47 PM ET

It almost sounds like the premise of a film. What would be the title of the movie and the tag line? "The Bounty Hunter starring deputy District Attorney Jennifer Aniston: another defendant in jail, another Prada purse for Jen?" Sounds like breezy summer fun with popcorn--if only it were not true, according to an article in the Denver Post by Jessica Fender, "DA Chambers offers bonuses for prosecutors who hit conviction targets."

While we were applauding democratic revolution in the Middle East, the pronouncement from a Denver suburb struck much of the legal community as despotic. This edict was issued by the elected District Attorney of Arapahoe County, Carol Chambers.

Here are the nuts and bolts of the policy: if prosecutors participate in at least five trials during the year and garner a 70 percent felony conviction rate, they earn an average $1,100 bounty--Chambers euphemistically refers to the incentive as a "bonus." Sorry, plea bargains do not count.

The Denver Post article smartly hit the list of problems with the policy: prosecutors close to hitting their conviction rate might present an irrational plea bargain to force a case to trial; prosecutors might cherry-pick the easier cases for trial to increase the odds of a conviction (Vegas, baby, Vegas); and of course there are serious ethical concerns given the Ethics Codes and Guidelines for Prosecutors that essentially state "a prosecutor is to seek justice, not convictions." Moreover, both the applicable national ethical canons and the Colorado rule hold that prosecutors are ministers of justice; they represent the community above any conviction rate.

As a prosecutor for six years and a criminal lawyer for almost thirty, both on the East Coast and in Colorado, I can tell you this policy is virtually unheard of nationally. Based on personal experience, there is enormous pressure to win cases. If you do not win, you will not advance in the office, and even worse, you will have a reputation as a wimp. Adding a monetary incentive might very well be the tipping point that leads to potential misconduct. Prosecutors have great power in our free society; overreaching and grandstanding are prevalent without bounty awards. Think about Mike Nifong, the prosecutor who indicted several Duke lacrosse players without just cause, giving press conferences calling the athletes rapists while hiding the exculpatory evidence that lead to the dismissal of all the charges against the innocent defendants. Imagine what Nifong would have done if the convictions would have lead to a juicy bonus.

Even if the Duke example is extreme, there does not seem to be much community support for Chambers' policy; local prosecutors are scratching their heads. Denver D.A. Mitch Morrissey said he would be concerned about "unintended consequences." Boulder D.A. Stan Garnett said he wanted his prosecutors "focused on doing the right thing on their cases... I don't want them distracted by some kind of bonus or award."

These subtle and restrained criticisms are buttressed by comments from the Colorado Criminal Defense Bar. Shawna Geiger, the president of the CCDB, sent out an organizational-wide email calling for a meeting to brainstorm about what action to take. The public defender in Chambers' jurisdiction has already fired a shot over Chambers' bow, filing a motion for a special prosecutor to evaluate the deputy D.A.'s financial interest in a pending robbery trial. Meanwhile, the word in the halls of the courthouse is more like the shouting in the streets in Tahrir Sqaure, with thousands of Egyptians waving their shoes at Mubarak, screaming "go away, go away." I have yet to run into a single attorney who has not been offended by the spirit of the policy.

In addition to the motion that has been filed, perhaps a letter from the CCDB to Chambers might help. The letter could suggest that the simple and ethically safer solution to motivate prosecutors to try more cases is to sit down with each individual prosecutor and tell them to put on their game-face, prepare the case diligently, and pick a jury. Worthy performance, measured by superiors in terms of whether justice was served (either through conviction, plea bargain, or even dismissal), results in promotion. Turning prosecutors into hit men just cannot be a good thing.