In my conference room, 18 of my more than 110 case dismissals – called nolle prosequi – hang in two nice rows. Some people have asked why I don’t hang them all. Some people have asked why I hanged those 18. And I had a person ask if it pissed prosecutors off that I hanged the nolle pros on my wall at all.
Let’s start with the last question:
Does it anger prosecutors that I have hanged the cases they dismissed on the wall?
While being best buddies with the prosecutor should never be a goal of a defense attorney, I have a good working relationship with most of the prosecutors with whom I have interacted. The nolle’s are not examples of great trial work – hell they may not even be an example of good advocacy – they show that every prosecutor on that wall looked at the case after we discussed it and decided the just resolution of the charges was dismissal. I’d love to take the credit, but the truth is the choice to dismiss a case rests solely with the prosecutor. Those 18 nolle’s on the wall are not testaments to my skill as a lawyer but rather to the quality of prosecutors we have in NEMO, their willingness to listen to a defense attorney, and their commitment to justice — even when it means dismissing the case.
The first and second questions are really offshoots of the same question.
Why select only 18 nolle’s to hang and not all of them?
Sometimes a case is dismissed when the defendant agrees to what is called a deferred prosecution agreement. That is a contract between the defendant and the prosecutor where the prosecutor agrees to dismiss the case if the defendant agrees to take certain actions, which could be go to drug treatment, pay restitution to the victims, obey all laws for several years, or other conditions. I don’t hang those because while they are part of a negotiated resolution of the case, they aren’t, in my mind, a true dismissal. The defendant still has to meet several criteria or charges will be re-filed.
Also, very frequently during plea negotiations, a defendant will plead guilty to one charge with a specific punishment and the other charges will be dismissed. I don’t hang those cases because it seems misleading. Yes, a nolle was filed, but the defendant isn’t walking away free.
The reason, I selected the 18 that hang on my conference room wall is because those 18 cases represent the best of our prosecutors and our system. In those 18 cases, after working up the case and meeting with the prosecutor, the prosecutor decided the interests of justice required dismissing the case. Of course, I have handled almost 500 other cases where that wasn’t the outcome.