I'm in Mahaska County yesterday, Oskaloosa, and waiting for a sentencing for which, I later learned, did not require my presence if I had simply filed a document stating that I waive my and my client's presence. While sitting I am listening to a discussion between a defense attorney and the probation officer the purpose of which seemed to be to determine what the defendant would stipulate to for purposes of establishing a violation of probation but with the result being the same, the defendant would be found to be in violation of his probation and be sent to prison. The result was apparently a matter agreed upon by the defense counsel and probation officer. The defendant was not present for this discussion and the county attorney handling the matter was flitting about concerned with other cases.
There are several things wrong with this picture. The probation officer is not the person who decides whether a probation is terminated sending the defendant to prison. The probation office makes a recommendation. The second issue that presents itself is the assumption that the county attorney handling the matter will do what the probation officer wants him or her to do without question. The third issue is the presumption that the judge will follow the recommendation made by the probation officer as presented by the county attorney. This leaves the defense attorney with the job of cajoling with the probation officer over the fate of the defendant. We have evolved into a system where attorneys are part of the production process rather than an impediment to it. Our job as criminal defense attorneys is not to make life easier for probation officers, prosecutors, or judges. Our job is to represent our clients. The so-called criminal justice system requires those engaged to work full-time. They are very busy; crime has been commodified. Difficult defense attorneys cause time, effort, and trouble for those in the system who are overworked and over-stressed and can't afford to be spending much time in the courtroom arguing about the future of some ne'er-do-well who can't follow directions.
Criminal defense attorneys hold the key. If every case went to trial; no one agreed to plead guilty to anything; the whole system would break down in one day. The criminal justice system as we know it would implode. All the laws, all the crimes enacted by the legislatures, the county board of supervisors, the municipalities, all would be for nought. There is no other profession in the world with more power if used. I have made it my mantra that I like trials, I would like to have more trials, and I am disappointed when my defendants take a deal. This has a salutary effect on prosecutors. If a prosecutor understands that the defense attorney he or she is dealing with has no interest in arguing about a resolution to a case, no interest in innumerable worthless telephone squabbles over a sentencing recommendation, the defendant will be well served. And from what I have always understood, that is our job.