State prosecuting attorney job review
October 3, 2016 3:05 PM Subscribe
How does a job review for a state employed prosecuting attorney employee work?
I've recently completed jury duty during which I was amazed at how poorly the State prosecutor did her job and presented her case.
Does the State have a performance review of their prosecuting attorneys? Can a state employed attorney get fired for bad performance or get bigger bonuses for good performance? Do judges give feedback to the State on the performance of the prosecutor?
I am not interested remotely in bringing this to the State Attorney or anything like that, I'm more curious along the lines of is there a performance review where the boss says "You won 10 cases and lost 20 cases, we have to work on your prosecuting performance" or "We saw you lost that open and shut case last week so we are putting you on a performance improvement plan." like there is in a regular business environment.
I've recently completed jury duty during which I was amazed at how poorly the State prosecutor did her job and presented her case.
Does the State have a performance review of their prosecuting attorneys? Can a state employed attorney get fired for bad performance or get bigger bonuses for good performance? Do judges give feedback to the State on the performance of the prosecutor?
I am not interested remotely in bringing this to the State Attorney or anything like that, I'm more curious along the lines of is there a performance review where the boss says "You won 10 cases and lost 20 cases, we have to work on your prosecuting performance" or "We saw you lost that open and shut case last week so we are putting you on a performance improvement plan." like there is in a regular business environment.
Best answer: First, you should keep in mind that the "poor performance" you saw may or may not reflect the attorney's abilities and preparation. For example, a good direct examination of a witness requires that the witness himself be reasonably intelligent, equipped with a good memory, and willing to give a damn. The prosecuting attorney doesn't get much freedom to choose who her witnesses are. You also don't know what dubious rulings the judge made out of your hearing or before trial that may have kneecapped the prosecutor's legal case. Even apparent poor preparation on her part may reflect a staggering caseload rather than a lack of diligence. This is not to say that there aren't lazy or incompetent prosecutors out there--there undoubtedly are--just that you're not necessarily best-positioned in the jury box to identify them.
Judging government attorneys by their win-loss rate also occurs almost exclusively in political contexts for high-ranking officials because everyone otherwise is realistic and understands that juries can do whatever the hell they want, "open and shut" or not (note: an "open and shut" case will usually settle; the cases that actually go to a verdict are cases where both sides can reasonably persuade themselves they might win). Additionally, it is often not up to the attorney in court whether the case goes to trial--that decision is made by a superior. The prosecutor may well think that the case is goose feathers and would rather plead out for a lighter sentence, but, if her supervisor thinks otherwise, she is now "responsible" for a case that she thinks ought not to have been taken to a verdict.
It's charming to think that there are people out there who believe that government litigators routinely get bonuses, so that they might get bigger bonuses for winning.
posted by praemunire at 3:19 PM on October 3, 2016 [10 favorites]
Judging government attorneys by their win-loss rate also occurs almost exclusively in political contexts for high-ranking officials because everyone otherwise is realistic and understands that juries can do whatever the hell they want, "open and shut" or not (note: an "open and shut" case will usually settle; the cases that actually go to a verdict are cases where both sides can reasonably persuade themselves they might win). Additionally, it is often not up to the attorney in court whether the case goes to trial--that decision is made by a superior. The prosecutor may well think that the case is goose feathers and would rather plead out for a lighter sentence, but, if her supervisor thinks otherwise, she is now "responsible" for a case that she thinks ought not to have been taken to a verdict.
It's charming to think that there are people out there who believe that government litigators routinely get bonuses, so that they might get bigger bonuses for winning.
posted by praemunire at 3:19 PM on October 3, 2016 [10 favorites]
As with many questions about how offices are run, generally the answer is "it depends on the office." Many states (like mine) divide the state up by counties or judicial districts, and each prosecutor's office is run independently of the others. Other states have statewide offices. Either way, how they do performance reviews or probation depends a lot on the particular office.
Often though, both new prosecutors and new public defenders are hired right out of law school, so particularly if you served in a misdemeanor case, you may have seen that prosecutor's first trial. Many states also have law student practice acts that allow properly-supervised law students to serve as prosecutors or public defenders. Poor trial performance by either prosecutors or public defenders at the felony level is relatively rare compared to the rest of the law, because literally nobody handles more jury trials than prosecutors and public defenders.
As those above have said, bonuses are rare, and in particular, bonuses for conviction rates raise a lot of ethical problems. In a civil case, where one person is suing another, the attorneys involved are agents of their clients seeking the best possible result for their client. In the criminal context, prosecutors are "agents" of the state, but the state's interest isn't convictions (or shouldn't be). Instead, the state's interest is seeking justice. And if that means dismissing cases or losing trials, that shouldn't be a problem. Rewarding convictions incentivizes prosecutors to take "easy" cases to trial, even though the "easy" cases should plead out.
posted by craven_morhead at 3:46 PM on October 3, 2016 [2 favorites]
Often though, both new prosecutors and new public defenders are hired right out of law school, so particularly if you served in a misdemeanor case, you may have seen that prosecutor's first trial. Many states also have law student practice acts that allow properly-supervised law students to serve as prosecutors or public defenders. Poor trial performance by either prosecutors or public defenders at the felony level is relatively rare compared to the rest of the law, because literally nobody handles more jury trials than prosecutors and public defenders.
As those above have said, bonuses are rare, and in particular, bonuses for conviction rates raise a lot of ethical problems. In a civil case, where one person is suing another, the attorneys involved are agents of their clients seeking the best possible result for their client. In the criminal context, prosecutors are "agents" of the state, but the state's interest isn't convictions (or shouldn't be). Instead, the state's interest is seeking justice. And if that means dismissing cases or losing trials, that shouldn't be a problem. Rewarding convictions incentivizes prosecutors to take "easy" cases to trial, even though the "easy" cases should plead out.
posted by craven_morhead at 3:46 PM on October 3, 2016 [2 favorites]
This will be entirely dependent on the state, the county and likely the division of the state's attorneys' office the attorney is in. There are performance review structures in place in every state's attorneys' office I'm familiar enough to know about but no, no bonuses based on case record and, no, judges would not be giving feedback because of an appearance of impropriety (judges are not part of the prosecutors office for all they can seem to be) but yes, attorneys get fired from the state's attorneys' office.
posted by crush-onastick at 3:48 PM on October 3, 2016
posted by crush-onastick at 3:48 PM on October 3, 2016
For what it's worth, actual trials only make up a tiny portion of a prosecutor's workload--an attorney could work on dozens of cases between trials, at least based on my anecdotal observation of many years. Even if a prosecutor doesn't do a great job presenting a case to the jury, they could be great at writing motions, handling pleas or alternative to incarceration programs, etc, etc. Again in my experience, records of wins and losses at trial isn't the primary metric, insofar as prosecutors are evaluated; if anything, superiors cared most about how quickly cases were resolved. And, yeah, no raises like the private sector's.
posted by ferret branca at 4:33 PM on October 3, 2016 [2 favorites]
posted by ferret branca at 4:33 PM on October 3, 2016 [2 favorites]
Judges do not give performance feedback to supervisors in any state.
posted by J. Wilson at 6:32 PM on October 3, 2016 [1 favorite]
posted by J. Wilson at 6:32 PM on October 3, 2016 [1 favorite]
Best answer: Whether there is a performance review depends on the structure of the particular office, and also whether it's union or non union and a whole host of factors.
From an ethical perspective, wins and losses don't matter. From a practical perspective, they matter a great deal, because a prosecutor who is losing at trial a bunch is either a bad litigator or doing a poor job of evaluating the strength of their cases. A good prosecutor should win 90 percent of their trials, as they have complete discretion to dump their garbage cases, give great deals on their weak cases, dismiss or set over a case of refer it for further investigation , not charge it in the first place, etc.
Obviously there are factors that can effect this, such as how much latitude the elected leader gives them, the political pressure to not dismiss cases, how reasonable or unreasonable a defendant or defense lawyer is, and whether the system and the judges tend to look neutrally on defendants who go to trial and lose, or whether they impose a trial tax.
I really disagree with posters who are implying that a prosecutor's trial performance is irrelevant. It is always relevant. Bad trial lawyers get a reputation quickly, and lawyers on the other side are more likely to litigate and less likely to cut a deal when they know they can get a better outcome through litigation.
posted by Happydaz at 8:14 PM on October 3, 2016
From an ethical perspective, wins and losses don't matter. From a practical perspective, they matter a great deal, because a prosecutor who is losing at trial a bunch is either a bad litigator or doing a poor job of evaluating the strength of their cases. A good prosecutor should win 90 percent of their trials, as they have complete discretion to dump their garbage cases, give great deals on their weak cases, dismiss or set over a case of refer it for further investigation , not charge it in the first place, etc.
Obviously there are factors that can effect this, such as how much latitude the elected leader gives them, the political pressure to not dismiss cases, how reasonable or unreasonable a defendant or defense lawyer is, and whether the system and the judges tend to look neutrally on defendants who go to trial and lose, or whether they impose a trial tax.
I really disagree with posters who are implying that a prosecutor's trial performance is irrelevant. It is always relevant. Bad trial lawyers get a reputation quickly, and lawyers on the other side are more likely to litigate and less likely to cut a deal when they know they can get a better outcome through litigation.
posted by Happydaz at 8:14 PM on October 3, 2016
A good prosecutor should win 90 percent of their trials, as they have complete discretion to dump their garbage cases, give great deals on their weak cases, dismiss or set over a case of refer it for further investigation , not charge it in the first place, etc.
Recognizing that jurisdictions vary, I still doubt that even 25% of prosecutors have "complete discretion" to manage their cases in this way. Most people have what are known as "bosses" who tend to have opinions on matters like case dispositions.
(Trial performance is not identical to win-loss record...)
posted by praemunire at 8:55 PM on October 3, 2016
Recognizing that jurisdictions vary, I still doubt that even 25% of prosecutors have "complete discretion" to manage their cases in this way. Most people have what are known as "bosses" who tend to have opinions on matters like case dispositions.
(Trial performance is not identical to win-loss record...)
posted by praemunire at 8:55 PM on October 3, 2016
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posted by melissasaurus at 3:13 PM on October 3, 2016