“The judge will throw my case out.”

Some people think that if they write a letter to the Judge or are allowed to talk to the Judge alone that they can get their case thrown out or the Judge will allow them to plea to a lesser offense or just sentence them to probation no matter what the charge. Obviously this myth comes from the fact that people naturally assume the Judge can do whatever she wants because she’s the Judge.

The reality is that in most instances, though not always, it is the prosecutor who has the most power in the courtroom. Only the prosecutor in almost all but the rarest instances can waive a minimum-mandatory.104 Only the prosecutor in most instances can dismiss a case.105 Only the prosecutor can amend the charges to a lesser offense, or less serious charge.106 And when no downward departure exists, only the prosecutor can agree to one. But clients don’t always see it that way. And sometimes, despite their lawyer’s advice they write a letter to the Judge, and or try to explain their case to the Judge at first appearance or any other time they think they can.

The defendant doesn’t understand that any letter he writes to the Judge will be given to the State attorney’s office. Some client’s even send letters directly to the State attorney’s office. At least these clients have a better idea of who is in charge, and a better chance of keeping the letter from being used against them at trial, since it is easier to argue that a letter sent to the state attorney’s officer is an inadmissible confidential plea-bargain negotation,107 as opposed to a letter sent to the Judge.  But either way, Judges and State attorneys are not good pen pals for defendants to have.

Luckily, however, not every correspondence between defendant and Judge, and defendant and the State attorney can be used against the defendant.108 And despite the prosecutor’s power, the Judge can dismiss a violation of probation warrant, and enter a Judgment of Acquittal before a jury verdict, and the state cannot do anything about either situation.109 And of course the Judge has the power to accept or reject any and all negotiated pleas.110