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The PD and the Prosecutor

The PD and the Prosecutor

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The PD and the Prosecutor

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  1. The PD and the Prosecutor An unlikely couple Jack Zanerhaft, Chief Public Defender Tammy Westcott, Assistant DA, Director of Alternative Courts

  2. Alternative Courts’ Culture Requires Changing Roles for Prosecutors and Defense Attorneys • Remain advocates/prosecutors while being part of a collaborative team • Roles change as defendants move from application, assessment, participation, to completion or termination • Cultural and philosophic change to a non-adversarial approach; working towards the same goals • Both parties must uphold the highest standard of ethics in the midst of the collaborative environment

  3. For the Prosecutor • Protect and promote public safety • Must adopt a less punitive approach • Understand that it is not soft on crime (hug a thug courts, happy clappy courts) • Educate the office about the programs and the successes • “Buy in” from the prosecutor required for program success • When prosecutors attend staffing, graduation rates rise from 43% to 58% • When prosecutors attend drug court sessions, graduation rates rose from 46% to 55% • Actively encourage graduation and pro-social behavior

  4. For the PD/Defense Counsel • Realizes that the adversarial nature of traditional criminal courts may be a roadblock to open communication and a hindrance to recovery • Understands that a large component of the success of rehabbing drug offenders depends on the participant believing that treatment is necessary • Duty of zealous representation • can mean ‘reasonable diligence and competence’ or ‘devotion and courage’ (ABA Model Rule 1.3) • To competently represent client it Drug/DUI/Vet Court, defense counsel must be familiar with treatment, procedures, and the likelihood of success for the defendant • Helping clients resolve problems with effective solutions requires more than knowledge of the law (Model Rules of Professional Conduct, Rule 2.1) • Lawyers may not only refer to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation

  5. Pre-Plea / Assessment Prosecutor Both PD/Defense Counsel Public Safety remains primary concern Ensures prompt legal and need/risk screens are conducted Fidelity to Risk-Need-Responsivity

  6. Pre-Plea / Assessment Prosecutor Both PD/Defense Counsel Public Safety remains primary concern Ensures prompt legal and need/risk screens are conducted Fidelity to Risk-Need-Responsivity Identify defendants who meet eligibility criteria & promptly recommends offenders to alternative court when appropriate Assures the best interest of the client from a legal perspective Seek amendments to charges if necessary Assures that the defendant is fully advised of the requirements of the program prior to entry/plea into it

  7. Pre-Plea / Assessment Prosecutor Both PD/Defense Counsel Public Safety remains primary concern Ensures prompt legal and need/risk screens are conducted Fidelity to Risk-Need-Responsivity Defendant would benefit from the program Ensure assessment tools are validated and properly administered Shared goal to place defendants in the most appropriate alternative to incarceration Ensures that all waivers and contracts are legal and uphold constitutional rights Identify defendants who meet eligibility criteria & promptly recommends offenders to alternative court when appropriate Assures the best interest of the client from a legal perspective Seek amendments to charges if necessary Assures that the defendant is fully advised of the requirements of the program prior to entry/plea into it

  8. When the Defendant is a Participant Prosecutor Both PD/Defense Counsel Demands participant accountability and protection of the public Advocates for proper incentives and prompt sanctions Monitors participant behavior for continued eligibility

  9. When the Defendant is a Participant Prosecutor Both PD/Defense Counsel Demands participant accountability and protection of the public Advocates for proper incentives and prompt sanctions Monitors participant behavior for continued eligibility Shields the client from ineffective care Serves as the ‘voice of the client’ Encourages clients to be honest in recovery (never breaching attorney-client privilege) Insures constitutional protections

  10. When the Defendant is a Participant Prosecutor Both PD/Defense Counsel Demands participant accountability and protection of the public Advocates for proper incentives and prompt sanctions Monitors participant behavior for continued eligibility Collaboration Confidentiality Shared Goals - success for defendant - good stats for program Appropriate Sanctions & Incentives Participate as active team members at staffing and at court (even for other defendants) Shields the client from ineffective care Serves as the ‘voice of the client’ Encourages clients to be honest in recovery (never breaching attorney-client privilege) Insures constitutional protections

  11. Incentives and Sanctions • Incentives • Both parties can suggest incentives for any participant at staffing • Both parties want to encourage sobriety, pro-social behavior, and responsible citizenship and should recognize such through incentives • Both parties should try to be careful that incentives are given far more often than sanctions

  12. Incentives and Sanctions • Incentives • Both parties can suggest incentives for any participant at staffing • Both parties want to encourage sobriety, pro-social behavior, and responsible citizenship and should recognize such through incentives • Both parties should try to be careful that incentives are given far more often than sanctions • Sanctions • Both parties should strive to help make sure sanctions are imposed as soon as possible after the infraction • All sanctions should fit the violation – tie the sanction to the unwanted behavior • Defense counsel must ensure the protection of rights when a person’s liberty or valuable right is taken away (waivers, notice, hearings)

  13. Termination or Completion Prosecutor Both PD/Defense Counsel Seeks termination based on factual history of non-compliance Respects and takes into account the input of the whole team Gives proper notice to the defendant and his/her attorney

  14. Termination or Completion Prosecutor Both PD/Defense Counsel Seeks termination based on factual history of non-compliance Respects and takes into account the input of the whole team Gives proper notice to the defendant and his/her attorney Staff any more treatment options with team Ensure that all alleged violations of the program are accurate Decide on the best option for the client – work on plea deal or go to hearing

  15. Termination or Completion Prosecutor Both PD/Defense Counsel Seeks termination based on factual history of non-compliance Respects and takes into account the input of the whole team Gives proper notice to the defendant and his/her attorney Insure the hearing is before an impartial judge (OK Case) Staff any more treatment options with team Ensure that all alleged violations of the program are accurate Decide on the best option for the client – work on plea deal or go to hearing

  16. Both parties should assist in planning and be enthusiastically present at graduation- show support from PD/Defense Counsel and the District Attorney’s Office- Give input on the ceremony- Speak when appropriate- Invite colleagues, the judiciary, and elected officials to garner support for the program Graduation

  17. Best Practices Place Extra Requirements on both the Prosecutor and the PD (Defense Counsel) • Collaborative nature of these courts requires active participation at staffing and court

  18. Best Practices Place Extra Requirements on both the Prosecutor and the PD (Defense Counsel) • Collaborative nature of these courts requires active participation at staffing and court • Maintaining stability of staff (as team members) assists in building rapport and trust within the team • Demeanor • Full buy in

  19. Best Practices Place Extra Requirements on both the Prosecutor and the PD (Defense Counsel) • Collaborative nature of these courts requires active participation at staffing and court • Maintaining stability of staff (as team members) assists in building rapport and trust within the team • Demeanor • Full buy in • Must become knowledgeable/an expert in many fields besides law • Specialized training • Researches and studies addiction, alcoholism, pharmacology, mental health issues, PTSD (Vet Court), and the latest alternative court research

  20. Best Practices Place Extra Requirements on both the Prosecutor and the PD (Defense Counsel) • Collaborative nature of these courts requires active participation at staffing and court • Maintaining stability of staff (as team members) assists in building rapport and trust within the team • Demeanor • Full buy in • Must become knowledgeable/an expert in many fields besides law • Specialized training • Researches and studies addiction, alcoholism, pharmacology, mental health issues, PTSD (Vet Court), and the latest alternative court research • Assists to make sure that treatment providers are informed, providing appropriate treatment, and are using evidence-based curriculum/treatment

  21. Best Practices Place Extra Requirements on both the Prosecutor and the PD (Defense Counsel) (cont.) • Continually increases cultural competence and assists team in being culturally aware

  22. Best Practices Place Extra Requirements on both the Prosecutor and the PD (Defense Counsel) (cont.) • Continually increases cultural competence and assists team in being culturally aware • Assists in identifying potential funding sources

  23. Best Practices Place Extra Requirements on both the Prosecutor and the PD (Defense Counsel) (cont.) • Continually increases cultural competence and assists team in being culturally aware • Assists in identifying potential funding sources • Seeks opportunities to promote alternative courts to civic organizations, bar associations, and elected officials

  24. Best Practices Place Extra Requirements on both the Prosecutor and the PD (Defense Counsel) (cont.) • Continually increases cultural competence and assists team in being culturally aware • Assists in identifying potential funding sources • Seeks opportunities to promote alternative courts to civic organizations, bar associations, and elected officials • Informs the judiciary about alternative courts and works with the courts for expedient processing of cases to alternatives when appropriate

  25. Best Practices Place Extra Requirements on both the Prosecutor and the PD (Defense Counsel) (cont.) • Continually increases cultural competence and assists team in being culturally aware • Assists in identifying potential funding sources • Seeks opportunities to promote alternative courts to civic organizations, bar associations, and elected officials • Informs the judiciary about alternative courts and works with the courts for expedient processing of cases to alternatives when appropriate • Advocate for fair and equal treatment of all participants (does not mean cookie-cutter approach to sanctions/incentives/treatment)

  26. Jack Zanerhaft Jack.Zanerhaft@oscn.net 918-596-5530 Tammy Westcott twestcott@tulsacounty.org 918-596-4893