Comment on Denver lawyers instructed to tack on careless driving charges to extend cases, internal memo shows

An internal Denver City Attorney’s Office memorandum instructs prosecutors who know evidence is insufficient to prove a careless-driving case to delay dismissing the charge until a defendant is about to give his plea or until the day of trial. “If you do not feel the facts support careless, ignore it when making an offer, but do not dismiss it until (defendant) pleads or the trial date,” according to the “traffic plea offers” memorandum obtained by The Denver Post. Denver defense attorneys say the practice, which carries the threat of a misdemeanor rather than a simple traffic offense, is often used as a cudgel to persuade defendants — particularly the poor, who may lack an attorney — to plead guilty to other charges. After inquiries from The Post, the city attorney’s office defended its strategy but said it is now in the process of revising the memorandum. “A prosecutor’s job is always to seek justice, never to play deception games in order to force a plea bargain out of an uninformed defendant,” said Dan Recht, a Denver defense attorney who has taught ethics courses. Related ArticlesOctober 12, 2016 Judge offers guidance to lawyer in Denver homeless lawsuit October 11, 2016 Supreme Court seems favorable to Colorado defendant claiming jury race bias October 6, 2016 Denver police may be reading your Facebook posts; ACLU sounds alarms Recht said the practice is unethical and may justify an audit of Denver’s careless-driving cases. A prosecutor cannot continue to prosecute a crime when they know they don’t have probable cause to prosecute that crime, he said of the memo. “That is hiding the ball from the defendant and therefore an ethical violation,” he said. Colorado legal tenets describing “special responsibilities of a prosecutor” prohibit prosecutors from pursuing charges they can’t prove. “The prosecutor in a criminal case shall: … refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause … (and) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense,” the state canon of ethics says. Prosecutors must dismiss charges immediately when they determine there is insufficient evidence to prove a case, said Ross Koplin, a Denver defense attorney with expertise in handling traffic offenses. According to the city attorney’s office, the memo could be taken out of context. “The statement … fails to include what our prosecutors already know — that the police officer is not available at that time to respond to the driver’s explanation, and therefore many times, the prosecutor won’t know all the facts until right before trial.