Sometimes, if the the district attorney is being unreasonable a good lawyer will simply set the case for a hearing. At the hearing, the district attorney carries the burden of proof. This means that are responsible for getting their witnesses lined-up, and presenting evidence to a judge to show that there is sufficient cause to hold the defendant to answer for the charges at a jury trial.
In this case, the district attorney wanted the maximum punishment for Mr. Friedman’s client. Friedman had attempted to settle the case previously, however, the State was firm in their position that the defendant deserved a harsh punishment. Mr. Friedman had no other choice than to set the case for preliminary hearing, as he was not willing to advise his client to accept the government’s rotten plea deal. Friedman believed that his client deserved a shot at probation in order to receive rehabilitative services for drug addiction issues.
At the preliminary hearing, the State called their first witness. Soon, it became clear that the witness — a police officer — was not nearly as articulate on the witness stand as he was in his written report. Half way through the government’s presentation of evidence, the prosecutor discovered that they did not subpoena a key witness — another police officer — who possessed essential testimony.
In this type of situation, the State can simply “dismiss” and then re-file a case. The rules of court give the prosecution one chance to re-file a felony case. When it became clear that the prosecutor was going to go down this path, Mr. Friedman worked with her in order to resolve the case on more favorable terms. The added pressure of the missing witness, coupled with the first officer’s poor performance, was enough to break the DA’s position and obtain a very lenient, misdemeanor deal on this very serious, felony case!