Balancing the risks of litigation

The Grand Junction Daily Sentinel - Opinion 

By DAN RUBINSTEIN

There is a lesson in this tragedy. Litigation comes with risk. While the pandemic has challenged my office’s ability to do as many trials as we want to do, we have historically litigated more cases to trial (by percentage filed) than any other jurisdiction in Colorado. In fact, we have tried and convicted two defendants for first-degree murder in the past four months.

Taking cases to trial is a value of mine and was a value of my predecessors in the 21st Judicial District Attorney’s Office. Litigation is costly, stressful and time intensive. As exempt employees, my lawyers do not make any more money by going to trial and work a lot more hours. We do it for many reasons. First, we learn the law better when we litigate. As a result, we understand what we can charge and what we can prove. We speak to jurors afterward and learn if this community thought it was a good use of taxpayer dollars to take the case to trial — and what we could have done better. Next, the defense attorneys get better at their jobs. Why would we want that? Because if they know the law, they can advise their clients properly and the system functions better.

Judges also get better through litigation. When a case gets reversed on appeal, it is because a judge made an error by admitting or refusing to admit evidence, or otherwise permitted something to happen or not happen, in error. Having good judges decreases the chance that we lose cases on appeal. Finally, cops get better through litigation. Nothing makes a cop better than a good cross-examination. When cops are better, we charge and convict the right people and we decrease the chance of wrongful conviction, which is the worst thing that can happen in our justice system. There is no justice for anyone in sending the wrong person to prison.

When there is litigation, there are risks. A juror could get on a case who should not have. The Michael Blagg murder conviction was reversed more than 15 years later because a juror lied to get on the panel. In that time, witnesses moved, passed away, memories faded. Fortunately, we were still able to prove the case, but that does not always happen. Other things go wrong as well, such as a bad ruling from a judge, warranting reversal.

Once the trial is over, and a conviction secured, the direct appeals begin and we have to defend the judge’s rulings. Once the direct appeals are over, the defense gets to say his lawyer did a bad job, and we have to defend the defense attorney’s performance. At any of these stages, we may lose.

When there is a plea agreement, a defendant waives most appellate rights, and there is finality. The risks that come with litigation go away. The main reasons why victims want us to resolve a case through a plea agreement are certainty and finality. However, to secure a plea agreement we have to give things up — sometimes more than we are willing.

We are a jurisdiction that fights because I believe my citizens elected me to do so. I am aware that sometimes it does not work out. In the Mangum case, we fought to the Colorado Supreme Court on a suppressed confession, we fought to the court of appeals to defend the conviction, we fought in the district court to keep the judge from ordering more DNA testing post-conviction in what we perceived to be a fishing expedition. We fought to the court of appeals when the judge ruled that the defense attorneys were ineffective at trial and we fought to the Supreme Court when the case was dismissed on speedy trial grounds.

The District Attorney’s Office did not shy away from seeking and preserving this conviction. All in all, I believe that if the trial judge in the Mangum case would have done any one of three things differently, this would not have happened. He could have corrected the mittimus to vacate the conviction, like all other judges have. He could have set the mandatory hearing on our motion to set bond or he could have granted our motion to return the case to Mesa County District Court where our judges get it right. Any of those things would not have led to this tragic result. Our justice system is not perfect, and is certainly not immune from tragic results that come with the risks of litigation. Despite this, we will never stop pursuing justice for the people of Mesa County.

Dan Rubinstein is the district attorney for the 21st Judicial District of Colorado and has been a prosecutor in Mesa County for more than 25 years.