THE ROLES OF THE DISTRICT ATTORNEY AND DEFENSE LAWYER IN DIVERSIONARY

COURTSCatherine Burton- Oklahoma County District Attorney’s Office

Heather Coyle- Oklahoma County District Attorney’s OfficeMelissa French- Oklahoma County Public Defender’s Office

TRADITIONAL REASONS A PERSON BECOMES A PROSECUTOR• 1. PUT BAD GUYS IN JAIL

• CANON 5: THE PRIMARY DUTY OF A LAWYER ENGAGED IN PUBLIC PROSECUTION IS NOT TO CONVICT, BUT TO SEE THAT JUSTICE IS DONE.

TRADITIONAL REASONS WHY WE BECOME DEFENSE LAWYERS• 1. GET PEOPLE OUT OF JAIL

• CANON 5: HAVING UNDERTAKEN SUCH DEFENSE, THE LAYWER IS BOUND BY ALL FAIR AND HONORABLE MEANS TO PRESENT EVERY DEFENSE THAT THE LAW OF THE LAND PERMITS, TO THE END THAT NO PERSON MAY BE DEPRIVED OF LIFE OR LIBERTY, BUT BY DUE PROCESS OF LAW

THE TRUTH

• A PROSECUTOR HAS THE ADDITIONAL OLBLIGATION OF FINDING THE TRUTH. “ BUT DEFENSE COUNSEL HAS NO COMPARABLE OBLIGATION TO ASCERTAIN OR PESENT THE TRUTH. IF HE CAN CONFUSE A WITNESS, EVEN A TRUTHFUL ONE, OR MAKE HIM APPEAR AT A DISADVANTAGE, UNSURE OR INDECISIVE, THAT WILL BE HIS NORMAL COURSE. More often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. As part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any relation to the search for truth. Justice Byron White in his concurring opinion in United State v. Wade (1967)

What is the truth we are looking for in diversionary courts?The truth is the person’s story. It begins with the question, “How did you get to this point in your life?” In focusing on the person and their story, it allows both sides to put their traditional roles aside. The Prosecutor should talk to treatment and the participant to fully understand their story.

What is our goal?

For both sides, our goals are long term success, making victims whole, and protecting the community.

What is long term success?Long term success includes graduation, but it’s a long sober productive life. For many people, this includes a job, a home, and reconnecting with their families.

How do we help our participants have long term success?By working together for their benefit. In the beginning, we are their support system and their cheering section. For a few, we continue to be their support system throughout the program. Its not uncommon for a participant to come to graduation and say we are their family…..

We encourage participants to contact their treatment providers or any member of the team post graduation. We also promote attendance at our alumni groups.

The Trauma Informed Prosecutor and Defense Lawyer: How being informed affects your roles• Learn together and learn about new things. We take classes that are outside the

area of law. Specifically, we take classes about trauma, addiction, and treatment. The more we are informed, the more we learn how to help our participants become successful.• If there are classes addressing legal issues, we go together. There is very little

room for disagreement about what we learned if we go together. Additionally, the legal issues regarding diversionary courts is very different. Many issues have not been addressed by the upper courts, so we are on our own.

If your county does not prioritize National Conference, try to fund raise or set money aside in your budget. The learning experience is invaluable. If you cannot attend, make sure to attend the State conference. Learning together and from others makes your courts better.

Trauma informed:

• Prosecutors it’s okay to be compassionate• Remember relapse is part of the program. Just because a participant

relapses, it does not mean that the participant needs to be revoked from the program. Don’t take relapse personally. Many participants make declarations at plea like “I swear I’ll never use again”. They mean it when they say it, but it’s not a reality. Relapses can be a learning experience.• The prosecutor may also help to resolve other pending legal cases

that impact participants’ legal status or eligibility for Drug Court.

Trauma Informed:

• Defense Attorneys, its OK to admit your client has messed up. In the beginning our participants are not necessarily capable of being clean and sober, but they are capable of being present. Know what your client is capable of and acknowledge their violations. If you point them out, many times your client will understand that actions have consequences, but that does not mean they are being revoked from the program.• Know your client….what sanction is fair and the most effective sanction.

Sanctions should be given for a program requirement and should be effective.• Talk to the treatment provider and ask for their opinions. Many times your

treatment provider will be able to provide an insight into why the client relapsed (example: client is working through a trauma in treatment and relapsed after a very tough individual treatment session)

Who is our team?

• 1. Judge• 2. Prosecutor• 3. Defense Attorney• 4. Coordinator• 5. Treatment• 6. Probation• 7. Law Enforcement

How do we work together?1. Consistency in sanctions, but still be fair by taking into consideration the facts and circumstances

regarding the situation. a. Have a Sanction matrix

b. address sanctions in staffing. We show our disagreement in the staffing, but NOT in front of the participant.

c. share information between each team member freely.

d. listen to treatment regarding what is the most effective sanction (the matrix may say community service, but if the participant has expressed his/her unwillingness to do community service and has never completed community service, then it is not effective to order more community service)

e. be creative with your sanctions if that is what is needed (ex. Having a client write a letter to his/her family explaining a relapse or community service is helping tutor another participant for their GED test)

f. try to come to an agreement, but if that is not possible, the Judge makes the decision. Keep in mind that our goal is to be fair, but we may not always agree as to what is fair.

g. THE PARTICPANT MUST BE HEARD. THIS IS ACHIEVED BY THE JUDGE

How do we work together?

2. We give chances. We all recognize that the program can be difficult and adjustment is hard. We are asking people to change their people, places, or things. This is very difficult.3. We are obligated ethically to other team members. If a staff person knowingly withholds relevant information about a participant from other team members, this omission could inadvertently interfere with the participant’s treatment goals, endanger public safety, or undermined the functioning of the Drug Court team4.. Avoid ego-centric Communications. Focus Statements on the substantive issue at hand rather than attempting to be “right” or win the argument

How do we work together?

• 5. Avoid downward communications. Ensure that all team members, regardless of status or authority, have an equal opportunity to speak• 6. Practice attentive listening. Hear all aspects of a team member’s

statement before thinking about or forming a response• 7. Reinforce others’ statements. Express appreciation for a team

member’s input before making counterarguments or changing the subject.• 8. Find Common Ground- Acknowledge areas of agreement among team

members before making counterarguments• 9. Watch your tone of voice• 10. Show understanding• 11. Have consistent core or team meetings

ACKNOWLEDGE ACCOMPLISHMENTS!!!!

WE ACKNOWLEDGE ALL ACCOMPLISHMENT NO MATTER HOW SMALL THEY MAY SEEM

1. Its important for the Judge to point out a good job done. We have found that the Judge has a powerful impact on the participants attitude and their own perception of their abilities.

2. The District Attorney SHOULD acknowledge all accomplishments. Simply saying “Good Job” by the DA means a great deal to our clients. Many participants thank the DA in their graduation speech for their encouragement.

3. Defense Lawyers should also make sure to point out participant's accomplishments. Many of our clients will not “toot their own horns”, so we do it for them!!! Make it known that the participant is trying and its showing.

4. Examples: VIP for participants who have made great strides in their program, candy for getting a new job, incentive drawings for those that have no violations since their last court date, and skip court slips.

How functioning as an alternative court calls for us to

function in a non-traditional manner

When the participant has a relapse or a violation of program rules, many times the Prosecutor and the Defense Lawyer talking to the participant TOGETHER can achieve a better long term outcome. Many times our participants are discouraged after a relapse or sanction. By speaking to them together, we can encourage the participant to look forward, learn their lesson, look back and see the mistake, and show our support for them. Simple words of encouragement from BOTH of us can have a significant impact.

The Judge• How drug Court teams make decisions in this non-adversarial climate has

constitutional implications. Due process and judicial ethics require Drug Court judges to exercise independent discretion when resolving factual controversies, ordering conditions of treatment and supervision, and administering sanctions and incentives that affect participants’ liberty interests. The judge may NOT delegate these decisions to the Drug Court team or acquiesce to majority rule.• Your Judge is there to make the final decisions regarding any controversies

that arise within your program. Our participants must know that the Judge is the final word.• By always reminding our participants and ourselves the Judge has the final

word, we are able to continue to function as a team and show a unified front.

When we use our traditional roles

• 1. sanction hearings• 2. revocation hearings

Sanction hearingA Sanction Hearing is only available to the participant when1. The sanction is in controversy2. The punishment for the sanction is JAIL.

How a sanction hearing works?

1. The role of the prosecutor is the ensure that all participants are following the rules. The prosecutor presents their evidence regarding a violation of the rules, including testimony.

2. The role of the defense lawyer is to contest the sanction. This is done by cross examination of the State’s witness and presentation of evidence.

3. The Judge makes the final ruling regarding the allegation of the sanction and any punishment.

4. This is NOT a revocation hearing and is very informal.

Revocation Hearings1. Hagar v. State, 1999 OK 35, 990 P.2d 894, Having compared the interest and procedur4es

involved in the acceleration of a deferred sentence and the termination from a drug court program, the procedures involved in both the process are similar. Further, as the acceleration of a deferred sentence subjects a criminal defendant to a loss of liberty, so too does the revocation or termination from a drug court program.

2. What does this mean? A revocation hearing from drug court looks exactly like a hearing on a Motion to Accelerate a Deferred Sentence

3. It is the State of Oklahoma’s sole discretion to file a Motion to Revoke from Drug Court4. The Motion should be specific in its allegations and the discovery regarding the violations must

be turned over the defense counsel.5. Standard is Preponderance of the Evidence that the offender is found to have violated the

conditions of the plea agreement or performance contract and disciplinary sanction have been insufficient to gain compliance.

6. Upon a revocation from the drug court program, the judge shall be prohibited from amending the written plea agreement after an offender has been admitted to the drug court program. Nothing in the provision shall be construed to limit the authority of the judge to remove an offender from the program and impose the required punishment stated in the plea agreement after application, notice, and hearing. 22 os 471.7 (g)

How is it different?Alexander v. State 48 P.3d 110, 114 (Okla.Crim.App. 2002)If an application to

terminate a Drug Court participant is filed, and the defendant objects to the Drug court team judge hearing the matter by filing a Motion to Recuse, the defendant’s application for recusal should be granted and the motion to remove the defendant from the Drug Court program should be assigned to another judge to resolution.

What happens when you work together and

give chances?1. Babies born while in the program are drug free and healthy2. Families reunited3. Jobs and promotions4. Reading levels greatly increased5. Valid Driver’s license and insurance!!!

When you give chances…..

• You help a person become more than they ever believed• Gabby J. was in another program and after spending time with her probation

officer, Erica Hall, she revealed her past, which was very horrific. Erica, with permission, passed on the information to us.• Gabby J. story looks like so many of the women who are currently incarcerated.

The difference lies in that Gabby J. was given a chance at a program and she summoned up the courage to tell her PO her story.• After another unhealthy relationship and time in treatment, it was determined

that Gabby J. had an undiagnosed mental illness that necessitated a transfer to Mental Health Court. Once in the appropriate program, Gabby J. has grown more than anyone would have anticipated.• Please ready her words on the day of her level up to phase 4….

Level up of Gabby J.

• To the Honorable Judge Geary L. Walke and the Mental Health Team. I would like to say Thanks you for blessing me with this chance to continue to grow in this program and a chance to show myself, as well as ya’ll, that I can grow and chance to change for the better and with that being said. Over this last year and a half, I have learned so much about life as well as myself. I have learned to take life one day at a time. I have learned how to deal with my inner demons in a better way. I learned to trust and ask for help when I really need it. I have learned to talk to people about whats hurting me. Most of all, I have learned to live and deal with my demons without using or giving up at all. I have learned that not every one is out to hurt me like, in my past. I have become a better person in so many ways and it means so much to me because at one point in my life, and in this program, I did not think I could make it or even change for the better.

Level up of Gabby J.

• I just know I was going to give up on my life and let my child down by doing so and to be honest, at one point in my past, I really really tried. But with the grace of GOD , my daughter, and 2 other women 1.Erica Hall #2 Nichelle Williams and the First man I learned I can trust Mr. Robert Naugle. I want to thank these people for not giving up on me and pushing me to do better. Staying on my head and keeping it real with me even if it hurt so much. Thank you very much and with that being said…I don’t want to forget 3 other people. My wife Alesicia Scott, the Honorable Judge Geary L. Walke and Miss Jenny as well as the Mental Health Team. Thanks you because I was given a new start at life and from the bottom of my heart Thank you. And to my peer’s just take one day at a time and have a little faith and you will start to see life in a better way with being in this program….