S Durlacher points out that the attorneys’s decisions to act differently in these cases are “illogical”:
“Each attorney with limited experience and regardless of their initial findings did not have sufficient evidence to disprove the essential factual basis of the criminal allegations. These “independent” findings have to be viewed under the context of the underlying prosecution of the charges and the recommendations to the judge,” Durlacher wrote.
What about that statement from March 8, that “admitting the alleged crime” without a “demand for immediate custody of the defendant” was equivalent to pleading guilty?
Durlacher agrees with critics of the DOJ’s decision to dismiss felony murder charges against Juan Rittenhouse in the case of the child who went missing in a Philadelphia welfare office, but also maintains that prosecutors acted properly:
Prosecutors charged Rittenhouse with third-degree murder and with being an accomplice in the death of Dawn Simms when he was 34 and seven months pregnant. His co-defendant in the case, Paul Alexander Suggs, pleaded guilty in January to involuntary manslaughter and was sentenced to 1 to 4 years in prison. […]
The position adopted by prosecutors was clearly correct, and Durlacher argues that the judge could have made the same conclusion, if it had been presented properly:
[T]he analogy of ‘demanding immediate custody of the defendant’ is inescapable. No criminal defendant should be entrusted to his or her daughter’s custody before the appearance of sufficient and reliable evidence of actual bodily harm and the actor/co-defendant has been indicted and convicted. On this point, prosecutors and defense counsel could not be faulted: the evidence provided in support of indictment and conviction cannot be ignored by a judge. Why, then, should the district attorney and defense counsel be faulted? A study of trial law illustrates why. A defense counsel must prove beyond a reasonable doubt that the indictment is based on untrue, unreliable or irrelevant evidence. The district attorney must demonstrate that the indictment is rational. And the chief judge must determine the level of prejudice suffered by a defendant before making his decision. Each defendant is required to make the most strenuous effort possible to buttress his position in order to withstand this heavy burden of proof….
At the conclusion of the trial, if Suggs could satisfy the burden of proof, the prosecutor would have removed Suggs from custody and moved for the defendant’s pretrial detention. The district attorney would then have had to come back and argue for the forfeiture of bail to the defendant. By this time, the defendant would already have had enough time to secure funds sufficient to pay the bond required to get out of custody. An indictment would have given the district attorney all the evidence necessary to convict Rittenhouse of murder. The combination of the indictment and the recommendations to the judge to remand him to custody was a far better alternative than the condition of being locked up. Ultimately, the effective measures placed upon Rittenhouse would have made it far more difficult for him to flee or possess the weapon in the alleged killing. The prosecutor and defense attorney could have appealed the decision and gained further time to present their defense. Instead, the motion was denied, the defendant was returned to custody and in a matter of weeks, the three-month delay caused by his apprehension led to the death of the child, Dawn Simms. […]
The message provided by the district attorney and defense counsel in these cases should be identical: We have already proven to a court that these defendants were guilty of the same act. To ask that they remain in custody pending resolution of the charges is unreasonable. Defendants who are on the hook for their crimes should be allowed to come home to their families and to prepare for trial. But only under the heaviest of possible pressure. On this, if there is any justice left to be had, we all should agree.
The family of Dawn Simms has appealed the judge’s decision to remand Rittenhouse to custody after the killing of her son in late December. Attorney Elwood Ozoungou is leading the defense team for his client.