A Goolsby "War Story:" The Case of the Older Woman and Pretrial Diversion

In the last post, I discussed the pretrial diversion program, which is an available alternative to prosecution in the federal court system. In this post, I want to tell you a "war story" about a time I agreed to a defense lawyer's entreaties to afford his client this lenient alternative to prosecution. You be the prosecutor! You decide whether or not you would have done the same! Here are the facts:

The Department of Justice has well-publicized guidelines concerning which cases should qualify for pretrial diversion. As you would imagine, the cases should generally be very minor, non-violent crimes by first offenders. Once, years ago, as a young federal prosecutor, I was prosecuting a woman, easily in her mid-sixties, who was a local bank president, for embezzling bank funds. In particular, she was giving herself some unauthorized "extra" interest on some of her personal savings accounts. To me, it was a routine criminal case for which this defendant needed to "do some time," and also to serve as an example to others.

But then, I got a telephone call from her criminal defense attorney. He and I had worked together previously when we were both employed together at the district attorney's office. I trusted him implicitly to tell me the truth. The criminal defense lawyer proceeded to tell me that he was worried about this client possibly taking her life. He went on to explain that, in the past year, she had lost her husband and had fought her own battle against cancer. He also described other ordeals she had endured which I won't go into here. (And I have changed some of the facts here, too, but the essential facts remain). Her attorney seemed genuinely concerned about what she might do if she was prosecuted and sentenced to prison.

Here is the decision I made: After careful consultation with others, including my case agent, I agreed to give this defendant pretrial diversion, in lieu of prosecution. Ordinarily, since she was a bank executive, I wouldn't have considered it. But looking back, I am glad I did it. I became convinced that she might not make it to prison and, frankly, I had better things to do than to kill this older woman! So, if I erred, at least I erred on the side of life! What do you think? Was I too lenient? Was I hoodwinked? What would you have done if you were the prosecutor?

As another point, I am sure you will agree that prosecutors, when exercising prosecutorial discretion, should try to be be consistent from case to case, (but, at the same time, they must also consider the unique facts of each case). Should it matter that she was older and had suffered several serious tragedies in her life?

As a post script, when I informed the defense attorney about my decision, I also teased with him a bit and made him promise not to broadcast to the local criminal defense bar that I was a wimp! Instead, I told him that I expected him to tell everyone what a tough prosecutor I was!

Pretrial Diversion v. First Offender Probation

The availability of pretrial diversion is an example of one advantage which the federal criminal justice system has over the Georgia, (state), criminal justice system. In other words, as a former federal prosecutor, I was able to "divert" some appropriate cases out of the criminal justice system through pretrial diversion. This alternative is unavailable to state prosecutors in Georgia. First offender probation is the closest alternative available to state prosecutors, but it requires going to court, getting sentenced by a judge, and serving a probationary sentence before the slate is "wiped clean."
With pretrial diversion, on the other hand, the defendant never goes to court. Instead, the defendant, who has no criminal record, (and who has committed a minor white collar offense), and his or her criminal defense lawyer, must simply sign a pretrial diversion agreement in which the defendant generally agrees to make restitution and perhaps do some community service. As long as they abide by the agreement, they can avoid prosecution. As a federal prosecutor, I generally used pretrial diversion in minor cases involving a simple, one-time theft, e.g. by a bank teller.
Generally, maybe it is true that the states can't learn much from the feds! But don't you agree that the states should at least copy the federal government by allowing pretrial diversion as another sentencing alternative?