the pd and the prosecutor an unlikely couple jack zanerhaft, chief public defender tammy westcott,...
TRANSCRIPT
The PD and the Prosecutor
An unlikely couple
Jack Zanerhaft, Chief Public Defender
Tammy Westcott, Assistant DA,
Director of Alternative Courts
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
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
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
Pre-Plea / Assessment
Prosecutor
Public Safety remains primary concern
Ensures prompt legal and need/risk screens are conducted
Fidelity to Risk-Need-Responsivity
BothPD/Defense
Counsel
Pre-Plea / Assessment
Prosecutor
Public Safety remains primary concern
Ensures prompt legal and need/risk screens are conducted
Fidelity to Risk-Need-Responsivity
BothPD/Defense
Counsel
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
Pre-Plea / Assessment
Prosecutor
Public Safety remains primary concern
Ensures prompt legal and need/risk screens are conducted
Fidelity to Risk-Need-Responsivity
Both
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
PD/Defense Counsel
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 necessaryAssures that the defendant is fully advised of the requirements of the program prior to entry/plea into it
When the Defendant is a Participant
Prosecutor
Demands participant accountability and protection of the public
Advocates for proper incentives and prompt sanctions
Monitors participant behavior for continued eligibility
BothPD/Defense
Counsel
When the Defendant is a Participant
Prosecutor
Demands participant accountability and protection of the public
Advocates for proper incentives and prompt sanctions
Monitors participant behavior for continued eligibility
BothPD/Defense
Counsel
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
When the Defendant is a Participant
Prosecutor
Demands participant accountability and protection of the public
Advocates for proper incentives and prompt sanctions
Monitors participant behavior for continued eligibility
Both
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)
PD/Defense Counsel
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
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
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)
Termination or Completion
Prosecutor
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
BothPD/Defense
Counsel
Termination or Completion
Prosecutor
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
BothPD/Defense
Counsel
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
Termination or Completion
Prosecutor
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
Both
Insure the hearing is before an impartial judge (OK Case)
PD/Defense Counsel
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
• 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
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
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
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
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
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
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
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
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
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)
Jack Zanerhaft
918-596-5530
Tammy Westcott
918-596-4893