By Brian Maass
DENVER (CBS4) – An internal policy manual from the Denver City Attorney’s Office on plea bargaining traffic tickets is being ripped by defense attorneys who claim it shows abusive and unethical behavior is mandated by office guidelines.
CBS4 obtained a copy of the four page policy entitled “Traffic Plea Offers 2013.”
The Denver City Attorney’s Office confirmed the authenticity of the document and affirmed it is still in use, but disputed the way a key portion is being interpreted and said the guidelines will now be changed.
The document for city prosecutors details how to handle potential plea bargains for moving violations in Denver. It says the standard plea bargain is to reduce the points on a violation by half except for certain citations like texting while driving, permit and interlock violations.
But the passage that has raised the ire of defense attorneys relates to careless driving charges.
“If there is a factual basis for careless, bargain it the same as any other charge,” says the guideline. “If you do not feel the facts support careless, ignore it when making an offer, but do not dismiss it until D(defendant) pleads or the trial date.”
David Miller, a former prosecutor in Denver and now a defense attorney, reviewed the document and told CBS4, “It is unethical to proceed with a charge when you know that there are no facts to support it. It basically says if you don’t plead guilty I won’t dismiss something I know I can’t prove just to punish you. This is a clear abuse of discretion and a violation of the prosecutor’s code of ethics.”
Miller went on to say, “It’s more like dealing from the bottom of the deck. It’s cheating and not an honest, level playing field.”
That ethical code for Colorado prosecutors says the prosecutor in a criminal case shall “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”
Harvey Steinberg, a Denver defense attorney, said the internal document obtained by CBS4 clearly suggests that prosecutors act improperly.”
“It is fundamentally unfair for the government to keep a charge hanging over your head when they know they can’t prove it. If they know they can’t prove it beyond a reasonable doubt they are both constitutionally and ethically obligated to dismiss it. When the city knows they can’t prove the charge they have a duty to tell the defendant that. It forces pleas. That’s what it’s all about,” said Steinberg.
“If they keep it hanging over your head you’re going to say ‘I can’t afford to keep missing work for this. I’ll just take a deal.'”
Marley Bordovsky, the assistant director for prosecution in the code enforcement section of the City Attorney’s office, told CBS4 “Thank you for bringing this to our attention. We can see how taken out of context, the language of this internal document could be misconstrued by outsiders. The statement that you highlighted failed 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. We will be clarifying the language in this internal document.”
Bordovsky said the guidelines were written several years ago by several “line prosecutors.”
“These guidelines do not direct our attorneys to prosecute charges that are not supported by the facts, and they never would.”
Bordovsky said that Denver had 9,116 cases involving careless driving since January 2015.
“There is no attorney,” she emphasized, “in the prosecution section of the CAO that would take any action that may be unethical.”