One witness, one complainant, one word. That’s all it takes for your life to start tumbling down the rabbit hole. One accusation, one prosecutor to believe it and one judge who is laissez-faire. That’s all it takes.

For some cosmic reason, this has been the most frequent topic of conversation with clients that I’ve had in the last two weeks. And I’ve always known, in the back of my head, the power wielded by the State in the criminal justice system. Heck, that’s why my job is an uphill battle.

But until last week, I’ve never really had to confront it head on, think about it for a while and explain it to several people, one after the other.

“Can they do that?” asked one client when I informed him that the State had upped the charges against him to a crime that carried a mandatory-minimum sentence. With an apologetic curl of the lip, I conveyed an affirmative response. “They can do whatever they want”, was my response.

“They can do whatever they want”. For the most part, it’s true, isn’t it? The State decides what to charge. The State makes all plea offers. The State decides which co-defendant to try first and which charge to try first. The State decides if it wants a pre-sentence investigation. The State decides what material they think is exculpatory and what needs to be turned over.

The power of the State is fearsome.

What’s more is that the State decides whom to believe. That was Client 2. “You mean someone can make up some shit about me, say I did this to her and I go to jail?”

“Well,” I tried to explain, “that’s what the State believes happened. That’s the evidence they’ll present at trial. It’s her word against yours.”

“That’s bullshit, man” came the understandable response.

It is bullshit. Continue reading →