H. Michael Steinberg has 38+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Colorado’s District Attorneys – An Imbalance of Power

Colorado’s District Attorneys - An Imbalance of Power

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Introduction: Knowing the Players in the Colorado Criminal Justice System

When a person is charged with a crime in the Colorado criminal justice system a thorough understanding of the balance of power among the three key actors that will play a role in their case – the Judge, the District Attorney, and the Defense Lawyer – can be instructive.

Confusion on the relative power of these “players” can manifest itself in making the wrong decision at any one of the several critical stages of a criminal case.  For example, many believe that it is the black-robed Judge, glaring down from high, who has the most power in the criminal justice system. If the Judge “could just hear my defense,” he or she would dismiss the case.

Nothing could be farther from the truth.

The Separation of Powers Doctrine

The U.S. and Colorado Constitutions establish three separate, but equal branches. of government:

  • The Legislative Branch (creates the laws),
  • The Executive Branch (enforces the laws), and
  • The Judicial Branch (interprets the laws).

The structure of our government – its checks and balances – was created by our forefathers to prevent one branch of government from becoming more powerful than the others. However, for the purposes of exercising power within the criminal courtrooms of Colorado, the District Attorney empowered to enforce the laws, has nearly complete control over the destiny of those charged with crimes.

Emily Bazelon, a well-known journalist has studied the perceptions of everyday citizens of our criminal courts. She makes the following point about a common misperception of the relative power of Judges and District Attorneys in our system of justice.

“We’re used to thinking about the justice system as a triangle, where you have the prosecutor and the defense lawyer down here, and they’re on an equal playing field. And then, it’s the judge who’s up … at the top of the triangle…

The person who gets to decide what the charges are in a criminal case—that person is the prosecutor…”

As the most powerful and perhaps the least understood actor in the criminal legal system, District Attorney’s impacts both individual criminal cases and the criminal justice system at large.

Adam Foss, former New York City prosecutor and a national leader of a reform movement in this area, makes this point clear:

“Prosecutors are the most powerful actors in the criminal justice system. Our power is virtually boundless.

In most cases, not the judge, not the police, not the legislature, not the mayor, not the governor, not the President can tell us how to prosecute our cases.”

– Adam Foss, Founder and President of Prosecutor Impact and Former Prosecutor

How Do Colorado’s Prosecutors Control the State’s Criminal Courts of Law?

Every day District Attorneys across the country make decisions that affect the lives of millions.

Colorado’s District Attorneys decide:

1. Who to prosecute;
2. What charges to file or not to file;
3. When to plea bargain or not plea bargain (and take a case to trial);
4. The amount and setting of bail and bail bond and other pretrial conditions;

Colorado Rule of Criminal Procedure Rule 11 provides a road map of the constitutional balance of power in the state’s criminal justice system.  The exclusive authority of the District Attorney to plea bargain is found in  Section (f) of Rule 11 governing the process of plea bargaining:

     (f) Plea Discussions and Plea Agreements.

(1) Where it appears that the effective administration of criminal justice will thereby be served, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement. He should engage in plea discussions or reach plea agreements with the defendant only through or in the presence of defense counsel except where the defendant is not eligible for or refuses appointment of counsel and has not retained counsel.

(2) The district attorney may agree to one of the following depending upon the circumstances of the individual case:

(I) To make or not to oppose favorable recommendations concerning the sentence to be imposed if the defendant enters a plea of guilty or nolo contendere;

(II) To seek or not to oppose the dismissal of an offense charged if the defendant enters a plea of guilty or nolo contendere to another offense reasonably related to the defendant’s conduct;

(III) To seek or not to oppose the dismissal of other charges or not to prosecute other potential charges against the defendant if the defendant enters a plea of guilty or nolo contendere.

(3) Defendants whose situations are similar should be afforded similar opportunities for plea agreement.

(4) The trial judge shall not participate in plea discussions.

(5) Notwithstanding the reaching of a plea agreement between the district attorney and defense counsel or defendant, the judge in every case should exercise an independent judgment in deciding whether to grant charge and sentence concessions.

(6) Except as to proceedings resulting from a plea of guilty or nolo contendere which is not withdrawn, the fact that the defendant or his defense counsel and the district attorney engaged in plea discussions or made a plea agreement shall not be received in evidence against or in favor of the defendant in any criminal or civil action or administrative proceeding.

A Closer Look at the Power of the Colorado District Attorney

What makes Colorado’s District Attorneys (DA’s) the most powerful players in the American criminal justice system? The balance of this article is intended to answer that question.

1. Colorado District Attorneys Decide WHO to Charge

Colorado law provides that it is the “DA” that has the exclusive legal authority to control the direction and outcome of every criminal case through their power to charge and to plea-bargain. What to charge and when or whether to plea bargain or not plea bargain – is virtually unreviewable.

Neither the Judge nor any member of the community has legal “standing” (authority – power) to challenge these critical decisions. Neither Colorado’s courts or the State Legislature can interfere with this charging decision.

As one Colorado Court of Appeals wrote:

‘[P]rosecutorial discretion’ is a hallmark of our criminal justice system and flows from the doctrine of separation of powers.”

Colorado’s District Attorney’s decide whether to charge a person with a criminal offense and what that charge will be.

There is no limitation on that power.

While the police have the authority to make an arrest based upon probable cause to believe the individual has committed a criminal offense, they do not control whether the person they have arrested will be formally charged and prosecuted. That decision lies solely with the DA. It is not unusual for the city or county prosecutor to dismiss a case filed by law enforcement.

 2. Colorado District Attorneys Decide WHAT Charges to File

When a DA determines that charges should be filed there are often many alternative crimes that may be filed. The decision on which charges and how many charges to file, as noted, falls well within the District Attorney’s discretion. The charges filed, from a misdemeanor or infraction that may be punished with minimal jail or a fine, to a felony that can carry a mandatory prison term, can massively impact the plea bargaining process.

Sentence enhancements such as felonies that require mandatory prison or so-called “habitual criminal” counts, because of the enormous risks of an unfavorable jury verdict at trial, may limit any leverage the defense may have to influence the plea bargaining process.

The Impact of Mandatory Sentencing at the Plea Bargaining Stage

I have written several articles that address the impact of mandatory sentencing laws in Colorado. The reason mandatory sentencing has received so much attention is the critical significance of the filing decision to include a mandatory sentencing crime or count in the criminal complaint to a Defendant’s decision to take a case to trial.

A conviction for a mandatory sentencing count or crime that requires a mandatory sentence to prison and removes even the possibility of probation, has a direct effect on the decision to plea bargain.

When I started as a young prosecutor in the1980s, a perceived “crime wave”  led to the passage of several Colorado “mandatory minimum sentencing” laws that forever changed the balance of power in the Colorado criminal justice system by removing the “core” sentencing authority of a Colorado Judge – the discretion to impose a sentence the Judge feels applies to the facts and circumstances of a case.

At the time Colorado’s District Attorneys already had the authority to determine, through  “prosecutorial discretion,” to control nearly every aspect of the plea bargaining procedure. The establishment of mandatory minimum sentencing laws increased their power exponentially.

Mandatory minimum sentencing predetermines the outcome of the process. If a defendant exercises his or her right to trial in a case where mandatory sentencing counts have been filed, unless there is an acquittal of those counts, it is the District Attorney’s charging decision that determines the end result at the sentencing stage, not the framer’s intent in preserving the balance of power in the courtroom – an elected Judge’s exercise of judicial discretion.

3. Colorado District Attorneys Decide WHEN to Plea Bargain and When NOT to Plea Bargain

There are well-accepted estimates that Defendants plead guilty in approximately 95 percent of all criminal cases  – nationwide. Because the plea bargaining process is controlled almost entirely by the District Attorney and nearly every plea bargaining decision is made behind closed doors – there is little known as to the reasoning underlying a process that has the capacity to destroy lives.

District Attorneys alone decide whether to offer a plea deal to the accused. District Attorneys decide the terms of the offer, which crime(s) the Defendant will be convicted of, and in cases where Judge’s accept sentence bargaining, the sentences to be imposed.

District Attorneys also have the right to threaten and then add new charges should they decide to do so if a plea agreement is not reached. If both parties to a criminal case agree to a plea bargain, Colorado’s Judges rarely reject the plea agreement (see below).

In short, this immense power to mold and shape the plea bargaining process, or even end the plea bargaining process in a given case and force the case to trial is unlimited.

4. Colorado District Attorneys Directly Influence the Setting of Bail, Bail Bond Conditions, and Pretrial Detention

Typically in serious criminal cases in Colorado, following an arrest, the individual arrested is taken before a Judge who then sets bond and the conditions of bond for that case.

At that “bail hearing,” the District Attorney is asked for a recommendation for the amount, the type, and the conditions of the bond.

If the person arrested does not have the resources to “post” their bond they will remain in custody until the case is resolved by either a plea bargain or if no plea bargain can be reached, a jury trial within six months of their plea of not guilty.

While Colorado’s prosecutors do not actually directly set the amount or conditions of bail, they have a major and influential role in the State’s very broken system. Almost all Colorado Judges rely heavily upon, and most often will follow, the District Attorney’s recommendations on bail bond amounts and the conditions of bond.

Evidence-based research, (and common sense), support the proposition that people who are incarcerated awaiting trial are much more likely to be convicted than those who have the resources to post their bond and obtain the right to fight their case while free.

DA’s are well aware that someone behind bars, suffering a devastating loss of freedom and helplessly watching their lives disintegrate, are much more likely to “take a plea deal” rather than waiting for their turn at trial.

While Colorado is addressing this problem by slowly moving to programs that predominantly use other release methods such as unsecured monetary bail (a personal recognizance bond), …reform has been slow.

The Unethical Tactic of Overcharging

The decision of what charges to file can pre-determine the outcome in criminal cases. The decision to overcharge cases is the ugly underbelly of that decision and, for every year that passes, seems to be more and more “ingrained” into that process.

“Overcharging” means charging a Defendant with a crime or crimes that carry the greatest penalty where the evidence collected may not support the greater charges beyond a reasonable doubt if tested at trial.

The American Bar Association Standards governing the Prosecution Function – Standard 3-3.9 (f) requires that:

“The prosecutor should not bring or seek charges greater in number…than are necessary to fairly reflect the gravity of the offense.”

The clear and obvious purpose of overcharging a case is to coerce a Defendant into pleading guilty to a lesser offense.

The terrible truth is this, Defendants, rather than risk a conviction by an unpredictable jury, or perhaps having little faith in a system based upon past experiences, –  even where there may be a solid defense to the lesser charge – will often plead guilty to that charge to avoid the risk of being convicted of the higher charge at trial.

Can a Judge Limit the District Attorney’s Power?

As discussed, under the separation of powers doctrine, the Legislative Branch enacts and defines crimes and establishes the sentencing ranges for those crimes. A Judge, representing the Judicial Branch, exercises its core power by deciding the sentence within those ranges (unless the sentencing range requires mandatory sentencing).

Put directly, a Colorado Judge does not have the power to dismiss a case.

The decision to dismiss pending criminal charges is solely within the District Attorney’s discretion, and that decision may neither be controlled nor limited by “judicial intervention.”

Other than extreme cases involving errors of constitutional dimension for a violation of the civil rights of the Defendant, the only exception to this rule is the authority of a Judge to dismiss a criminal case for an insufficiency of the evidence supporting the charge. This can occur, for example, when a Judge refuses to “bind a case over” to arraignment following a preliminary hearing.

A Colorado Judge’s Power to Reject a Plea Bargain

Under Rule 11 of the Colorado Rules of Criminal Procedure, a Judge that accepts a plea bargain has agreed to yield some of his or her power. The right to accept or reject a plea agreement, as outlined above,  is fundamental to a Court’s constitutional power.

The best example of this is a plea to a crime that carries a standard range of between 10 to 32 years. If the parties propose a plea bargain to a “stipulated sentence” of 15 years, the Court has the right to either accept or reject the proposed plea bargain. If there are good reasons to support the proposed plea deal it is rare for a Colorado Judge to reject this kind of negotiated plea agreement.

What Happens if a Colorado Judge Rejects a Plea Agreement?

There is no question that plea bargaining is “an essential component of the administration of justice,” but …. but, as the Colorado Supreme Court has clearly stated, Defendants do not have an “absolute right to have a guilty plea accepted.”

A Judge has the authority to reject a plea in the exercise of sound judicial discretion.”

The standards that guide Colorado Trial Courts in the exercise of that judicial discretion require the Judge to consider “all relevant factors” that apply and then articulate clear reasons for rejecting an agreement. Those reasons must be made in open court “on the record.”

Examples of some of those “factors” that the Trial Court may consider are:

  • the nature of the plea agreement as it relates to the crimes committed;
  • timeliness of the plea agreement;
  • the defendant’s previous criminal history; and
  • a pre-sentencing report or recommendation.

If a Judge is found to exercise “sound independent judgment” in rejecting a plea agreement and that Judge makes a clear and supportable record of the reasons for doing so, the Court’s ruling will rarely if ever be set aside on appeal.

Summary and Conclusion – Colorado’s District Attorneys – An Imbalance of Power

Former U.S. Attorney General Robert Jackson said this about our country’s prosecutors:

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous….

While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

I have been a part of the Colorado criminal justice system for almost 40 years. When I explain the relative positions of power of that system for the first time to those who have never had any exposure to the realities of that system – the picture of the black-robed judge solemnly presiding over and controlling the fairness of the decisions made by the actors in that system…quickly fades.

Colorado’s District Attorneys have broad and unfettered discretion that enables them to exert almost total power and control over the criminal process – much more power than any other criminal justice official.

Whether it is the decision to recommend freedom or prison, to set the terms and conditions of plea bargains or to take a case to trial, or whether it is the decision to dismiss a case altogether, these are the decisions that determine the outcome of Colorado’s criminal cases.

These decisions have massive, and many times permanent lifelong consequences not only for criminal defendants and their families but for the victims of crime and their families.

This article is intended to help the reader to fully understand the extent of that power and, once understood, find ways to fight against the unfair exercise of that power when that becomes necessary.

There is only one good, knowledge, and one evil, ignorance.   Socrates

“A person charged with a crime requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

United States Supreme Court – Powell v. Alabama, 287 U.S. 45, 69 (1932)

If you found any information I have provided on this web page article helpful please share it with others over social media so they may also find it. Thank you.

Never stop fighting – never stop believing in yourself and your right to due process of law.

BEST-STANDING-CHOICE-200x300ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 38 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.

As a former career prosecutor for Arapahoe and Douglas Counties, he has a unique understanding of the criminal justice system that works to his clients’ advantage to better protect their rights. H. Michael also knows how to talk clearly and very directly to his clients, his adversaries, and to the Court. He uses his life experience, common sense, and straight talk to help clients fully understand and make decisions regarding their options.

If you are ready to talk, H. Michael stands ready to help.