District Attorney Ismael Ozanne says the new oversight on plea bargains is an attempt “to be as efficient as possible.”
The Dane County District Attorney’s Office has adopted new guidelines for settling adult criminal cases that some local defense attorneys believe will result in harsher outcomes for their clients.
The rules, which quietly went into effect April 3, require the office’s roughly two dozen assistant district attorneys to obtain prior approval from District Attorney Ismael Ozanne or one of his four deputies before offering to waive a preliminary hearing, dismiss criminal charges or amend charges to a lower category of offense, among other actions.
“We are trying to be as efficient as possible,” says Ozanne in an interview. “We’re not saying you can’t do any of these things. We’re saying, ‘Let’s have a conversation.’” He touts the changes as necessary to ensure consistency in an office that is understaffed and where a sizable number of assistant prosecutors are relatively new to the job.
“We have had a significant amount of turnover,” Ozanne says. “We’ve lost a lot of historical knowledge.”
But some local defense attorneys fear the new rules will make it harder for assistant prosecutors to strike reasonable deals. Reaching plea agreements is an essential part of handling the office’s workload of more than 40,000 cases a year.
“This is a very significant departure from previous practice,” says attorney David Knoll. “It means I am negotiating with ADAs who in fact do not have settlement authority. And it means the decisions being made about plea agreements are being made by a deputy who is neither familiar with the case nor obliged to try it if it is not resolved.”
Defense lawyer Brian Brophy, a former deputy DA who headed the office for about six months ending in January 2001, shares these concerns. He believes the office works best when front-line staff are empowered to make judgment calls. When he was in charge, “If an ADA picked up a misdemeanor file, he or she had absolute authority to settle the case. The view was that efficiency is part of achieving justice for victims, defendants and the public.”
Brophy says the new policy, in contrast, “tells assistant district attorneys they can’t be trusted to make good decisions. If Ismael were brand new, it could make some sense. But at this point, he hired the assistants, he’s trained them, yet the optics here are that he doesn’t trust them.”
Ozanne disagrees, saying the new policy was adopted in response to requests from the ADAs for more direction. But, he adds, another goal is to ensure that consideration is always given to victims as well as defendants.
“I’m working with our assistants to grow them into thoughtful, well-meaning prosecutors,” he says.
Tim Kiefer, a local defense attorney who worked as an assistant Dane County district attorney from 2007 to 2011, sees both sides. He says the level of inexperience among assistant prosecutors has led to frustration among defense attorneys, including himself, who notice that the decisions being made are “more unpredictable than they used to be.” The new policy could result in “more uniformity between offers.”
On the other hand, it means decisions will ultimately be made by deputies who do not know the defendants, victims and witnesses as well as frontline ADAs do. And it may create situations in which ADAs feel that they are constantly being second-guessed by management.
Reflects Kiefer, who also serves on the Dane County Board, “There’s no good way to manage that office that doesn’t have trade-offs.”
