Where have all the justice-minded prosecutors gone?

More and more I am seeing a disturbing evolution in the mindset of prosecutors. Instead of applying common sense and even a true "sense of justice" to the cases they prosecute, they are going for the kill no matter the circumstances. My two most recent DUI trial experiences are examples of this trend. To start, the one I had yesterday resulted in an acquittal and the other is still awaiting a judge's decision on a motion we argued a couple of weeks ago. Both involve a similar fact pattern, at least as far as operation of a motor vehicle and what that entails is concerned.

First, the victory. The facts were largely undisputed. My client met a girl at a local bar. He got drunk. He was smart enough to realize that he was way too drunk to drive. The girl volunteered to take him home in his car. Her only condition was that they drive to her house a couple of blocks away first so she could make sure her baby was okay (her mom was sitting). They left at closing and she parked my client's car in front of the house next door to hers. She left the car running and went inside. My client had fallen asleep on the short ride over so wasn't sure where they were, only that he had left the bar with the girl driving. He awoke when she parked the car. It was cold outside. My client slid over the the driver's side and turned on the heated seat (he was driving it earlier that day to see if he wanted to buy it, so was playing with its features). Moments after he slid over to the driver's side, he fell back to sleep.

A concerned citizen called 9-1-1 to report the sleeping person in the car. The cop arrived and made contact. At trial the officer testified that the client told him over and over again that the girl drove, and they even tried to call her. The girl testified too, confirming what the officer said the client told him about how the car got to her house. She said that when she made it to her house two men accosted her and she ran to get away from them. By the time she returned to the car the client was already in police custody. She said she tried to call the client's cell phone to ask where he was, but never got an answer.

To make a long story short, the judge held that since the officer couldn't dispute the testimony that the car was left running before the client slid over and fell asleep, that he could not find that my client operated or attempted to operate the vehicle. In Kansas, courts have held that operate in the context of a DUI means "drive." See State v. Kendall, No. 87,384 (Kan. S. Ct. 2001). So there must be evidence of driving the vehicle or an attempt to drive, though no moving is required for the latter. This was a solid ruling by the court.

The second case involved a similar fact pattern yet resulted in a conviction in the municipal court. I am not criticizing the court; rather, I am bashing any prosecutor who thinks prosecuting such cases makes sense. It involved a young man who after the bar closed walked straight from the bar to his car across the street on a night when the temperature was in the 20s. He got in the car and started the engine so the heater would keep him warm. He fell asleep at closing and was spotted by an officer in the very same spot 5 hours later. The officer watched the immobile car for another fifteen minutes before he made contact. The defendant was dead to the world. It took the officer several seconds to wake him up.

At trial the officer made it clear that he never saw the vehicle move and that the defendant never actually said he intended to drive the vehicle away from its location. The only incriminating thing the defendant told him that night was that he was just "trying to get home." The defendant disputes that he ever made this statement and there is no video record of their interaction. The judge was torn when he ruled against us, and his decision was based on that one statement even though everything else pointed to a drunk guy who knew better than to drive home and was just sleeping it off in a warm car on a cold night. We appealed this decision to the District Court (this is the first court of relief for municipal cases in Kansas) and argued our motion to suppress/dismiss a couple of weeks ago. The District Court judge has not yet made a decision. I am hopeful.

Here's my beef with these cases. Shouldn't public policy reward people who, drunk as they are, wisely decide to either stay put until they can get rides from others or choose to sleep in their cars until they are no longer drunk? Actually, it does. The statutes and ordinances in question use the language "operate or attempt to operate" yet the case law and legislative history of Kansas DUI laws clearly indicate that Kansas lawmakers intended the laws to forbid driving or attempting to drive while under the influence. Indeed, the Pattern Jury Instructions of Kansas actually changes the word "operate" to "drive." So the legislators and appeal courts aren't the problem. The problem is boneheaded prosecutors who just want to get people convicted because they can. In both of the above cases, a justice-minded prosecutor wouldn't have fought tooth and nail for a conviction just because he could. A justice-minded prosecutor would have dismissed the cases before they ever made it to the court room. These cases were prosecuted by different city prosecutors, yet conversations I've had with county prosecutors compel me to think that these people are no more "justice-minded" that their counterparts in the city.

But before you think I am bashing these individual prosecutors, think again. For those at fault you must go up the ladder, beginning at the very top, the Attorney General. The AG's office in Kansas has made it clear that any prosecutor who amends a DUI case to other charges faces the prospect of being brought up on ethical charges. K.S.A. 8-1567(s) reads in pertinent part:

No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or a violation of any ordinance of a city or resolution of any county in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this section or by the ordinance. For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not constitute plea bargaining.

This is the DUI statute subsection that such anti-justice prosecutors hang their hats on. But if the supervisors of these offices (the elected DA or CA in the county, or the chief city attorney in a city) gave their prosecutors discretion to "do the right thing," clients who did the right thing when they got drunk in the first place wouldn't have to pay hundreds and perhaps thousands of dollars to fight such frivolous and bad-spirited cases. Personally, I love trials, but it gnaws at my guts to think such power-hungry people are willing to force citizens who probably don't have very much money in the first place to spend those funds on defending ridiculous cases like the ones cited above.